IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 SA.No. 220 of 2003(A) --------------------- AS.49/1997 of PRL.SUB COURT,IRINJALAKUDA OS.199/1996 of PRL.M.C.,IRINJALAKUDA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------- 1. KOCHAKKAN, S/O. NEDUMBILLY KOCHALA, MATTATHUR VILLAGE, AVITTAPPILLY DESOM, MUKUNDAPURAM TALUK. 2. AMMINI, W/O. 1ST APPELLANT, -DO- -DO- -DO-. BY ADV. MR.K.G.BALASUBRAMANIAN RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------- 1. GEORGE, S/O. MAMBRA LONAPPAN, MATTATHUR VILLAGE, AVITTAPPILLY DESOM, MUKUNDAPURAM TALUK. 2. POULOSE, S/O. RAPPAKKARAN CHERIYAKKUTTY, MATTATHUR VILLAGE, CHUNKAL DESOM, MUKUNDAPURAM TALUK. 3. KATHREENA, W/O. ETTUMANAKKARAN DEVASSY, MATTATHUR VILLAGE, CHUNKAL DESOM, MUKUNDAPURAM TALUK. 4. DAVIS, S/O. 4TH RESPONDENT, -DO- -DO-. 5. JOY, S/O. 4TH RESPONDENT, -DO- -DO-. 6. LUVIS, S/O. 4TH RESPONDENT, -DO- -DO-. 7. JESSY, D/O. 4TH RESPONDENT, -DO- -DO-. 8. ANNAMKUTTY,W/O. LATE PAILY THAKKOLKKARAN 3RD RESPONDENT, MATTATHUR, AVITTAPPILLY DESOM, MUKUNDAPURAM TALUK. 9. JAYA, D/O. 3RD RESPONDENT, -DO- -DO-. 10. JAISON, D/O. -DO- -DO- -DO-. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 220 of 2003(A) ORDER ON C.M.P.NO.645/2003 DISMISSED. 21.6.2011. SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.220 Of 2003 ---------------------- Dated this the 21st day of June, 2011. J U D G M E N T The following substantial questions of law are formulated at the time of admission: A) Whether a person entitled to claim a right of easement by prescription with respect to rainwater falling on his property, so as to burden the neighbouring property by discharging such water to the latter? Is not such a right a natural right? B) Whether, on the facts and in the circumstances of the case, can such a natural right be claimed as a prescriptive one without enjoyment for the requisite period of 20 years? C) Whether on the facts and in the circumstances of the case, were not the courts in error in not holding that right of claim had not crystallised into a prescriptive one? D) Whether, on the facts and in the circumstances of the case, were not the courts below in error to granting relief to the respondents as the right claimed initially and enjoyed subsequently (assuming such user to be proved), substantially different? E) Whether, on the facts and in the circumstances of the case, were not the courts below in error in not holding that the respondents were responsible for the present state of affairs whereby ::2:: S.A.No.220 Of 2003 additional burden is imposed on the appellants? Are not the respondents estopped from fastening a claim on the appellants, as they are guilty of changing the nature of their property? F) Can a person claim benefit of his own wrong doing so as to impose a liability on his neighbour in as much as the former has no right to bring extraordinary things (water) on his land and claim to be entitled to release the same to his neighbour's land? Is he not liable to remove the peril on his own? G) Is not the principle of prescription totally foreign to the right claimed by the respondents, as they could only be owners of one portion of the thodu? 2. Plaintiffs in O.S.No.199/1996 on the file of the Principal Munsiff Court, Irinjalakkuda, are the appellants. The appeal is directed against the judgment and decree in A.S.No.49/1997 on the file of the Principal Sub Court, Irinjalakkuda. The case of the plaintiffs is that their properties are lying within a common well defined boundaries and the defendants are trying to dig a new chal trespassing into the same. The prayer is for restraining the defendants from trespassing into the property, committing any waste, constructing any new canal and not to interfere with the right and enjoyment of the plaintiffs. Defendants filed written statement ::3:: S.A.No.220 Of 2003 and counter claim. In the counter claim they prayed for a declaration that they have got easement by prescription to drain out water through the counter claim B schedule property. They also claimed damages. The trial court dismissed the suit. The counter claim was partly allowed as follows: 1) It is declared that the defendants are entitled to an easement right by prescription over counter claim B schedule water chal. 2) The plaintiffs are directed to restore the counter claim B schedule water chal within one month from today, failing which the defendants can do the same with the assistance of the court and can realise that amount from the plaintiffs. 3) The claim of defendants for damages is disallowed. 4) Defendants are entitled to costs of the suit The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 3. The plaint schedule property in the suit admittedly belong to the plaintiffs. The defendants' properties are lying on the southern side of the plaint schedule property. According to the plaintiffs there are well defined boundaries on the southern and western side of the plaint schedule properties. The plaintiffs alleged that on 15.2.1996, defendants sought permission of the ::4:: S.A.No.220 Of 2003 plaintiffs to dig a thodu in the plaint schedule properties to drain out water and that request was rejected. It is alleged in the plaint that the rain water collected in the properties of the defendants have been drained out through the puramboku thodu lying on the eastern side. 4. In the written statement filed, the defendants contended that during rainy season, excess water from the pond which is lying on the southern side of the properties of the defendants would be drained out through a canal lying on the western boundary of defendants 2 to 4 and on the north-western corner of 2nd defendant's property, that the canal is open to the plaint schedule properties then it flows through a chal along the southern and western boundary of plaint schedule properties and reaches another canal lying on the western side of the entire properties. The chal described in the written statement which passes along the southern and western boundary of the plaint schedule properties is the counter claim B schedule property. It is claimed that the defendants have been draining out excess water from their properties through the counter claim B schedule water chal for the last more than 30 years and thus they have ::5:: S.A.No.220 Of 2003 got easement right by prescription over this chal. It is pleaded that on the northern boundary of plaint B schedule chal waist- high compound wall was put up by the plaintiffs, that on 23.2.1996, the plaintiffs demolished the compound wall and filled up counter claim B schedule chal and filed the suit. It is further alleged that the plaintiffs put up the compound wall on the northern boundary of the second defendant's property and also put up a granite bund on the north-western corner of 2nd defendant's property blocking the entry of water to the plaint schedule properties and that on account of the destruction of the B schedule water chal the rain water got stagnated in the properties of the defendants as a result of which the plantains planted in the property were destroyed. Defendants claimed damages to the tune of Rs.25,000/- towards the damages caused to the cultivation in their property. The defendants also prayed for a mandatory injunction for restoration of the water chal. 5. On the plaintiffs' side, PWs 1 to 3 were examined and Exts.A1 to A4 documents were marked. On the defendants' side, DWs 1 to 4 were examined. Exts.C1 to C4 and X1 to X3 were also marked. ::6:: S.A.No.220 Of 2003 6. The important question which arises for consideration in the suit is as to whether the defendants have got any right to drain out excess water from counter claim A schedule property through counter claim B schedule property. On the basis of the evidence adduced, the plaintiffs contended that their property is lying within common well defined boundaries and the defendants are trying to dig a new chal in the properties trespassing into the same. The defendants' case is that a water chal is in existence in the plaint schedule properties which is a continuation of a water chal lying on the western boundary of defendants 2 to 4 and that is being used for draining out excess water from their properties. The defendants also alleged that the plaintiffs filled up the water chal in the pliant schedule properties and filed the suit. The trial court deputed commissioner on three occasions. Ext.C1 report is dated 20.3.1996, C3 report is dated 7.6.1996 and C4 report is dated 27.7.1996. In the first report, it is stated that the commissioner could not see the water chal in the plaint schedule properties. The case of the defendant is that on 23.2.1996 the B schedule water chal was demolished by the plaintiffs and that on the northern bund of the B schedule water chal a waist-high ::7:: S.A.No.220 Of 2003 compound wall put up by the plaintiffs was also demolished by them. The commissioner reported that a water chal is running along the western boundary of defendants 2 to 4 and that ends at the north-western corner of 2nd defendants property. The commissioner also noted a new granite bund on the north- western corner of the 2nd defendant's property. Relying on Ext.C2 report the trial court held that a water chal was in existence on the western boundary of defendants 3 to 4. The trial court relied on the commission reports and found that there exists a water chal. The court held that though the very existence of a water chal is disputed by PW2, the 2nd plaintiff, the reports of the commissioner disproves his version. The trial court also held that the reports reveal that at the northern end there is a well defined water chal. The commissioner found a new granite bund constructed blocking the flow of water to the plaint schedule properties. 7. The defendants contended that the counter claim B schedule water chal is running along the southern and western boundary of the plaint schedule property and that the waist-high compound was in existence in B schedule bund of the water chal ::8:: S.A.No.220 Of 2003 and that was demolished immediately before filing the suit. The commissioner reported that there is a heap of muddy stones in the plaint schedule properties. The defendants pointed out that these muddy stones are parts of the demolished waist-high compound wall. The commissioner also on inspection found that fresh soil scattered on the southern and western boundary of plaint schedule properties. Due to plaintiffs' opposition the commissioner was not able to ascertain certain materials beneath the fresh soil. The trial court also found that though the well defined water chal could not be seen in the plaint schedule properties the circumstances indicate that a water chal was in existence and that was demolished immediately before filing the suit. The trial court on evidence also found that after suit a new compound wall was seen constructed by plaintiffs on the southern end of their properties touching the northern compound wall of the first defendant. The court also found that the construction of the compound wall on the southern extremity is not necessary because of the existence of a well defined stony wall on the northern side of the 1st defendant's property. The trial court also considered the existence of a new granite bund on the north- ::9:: S.A.No.220 Of 2003 western corner of the 2nd defendant's property, the presence of a new granite bund on the northern side of the properties of Mathew at the mouth of a water chal running along the northern boundary of his properties, the existence of a well defined water chal on the western side of the properties of defendants 2 to 4 up to the newly made granite bund, the presence of muddy stones in the plaint schedule properties, the presence of a row of trees on the western side of plaint schedule properties leaving a strip of land on the western side without improvements covered with fresh soil are sufficient circumstances to presume that a water chal was in existence as claimed by defendants in the plaint schedule properties. The trial court also considered the evidence tendered by plaintiffs' witnesses and defendants' witnesses in order to decide as to whether a water chal as shown in counter claim B schedule was in existence in the plaint schedule properties immediately before filing the suit and whether the plaintiff demolished the same and blocked the two mouth of this water chal by granite stones immediately before the suit. The trial court, on the basis of the facts revealed from the oral and documentary evidence including the commission reports, ::10:: S.A.No.220 Of 2003 positively found that there exist of a water chal and the same was demolished by the plaintiffs immediately before filing the suit. In the said circumstances, the court found that the plaintiff is not entitled to the discretionary relief of injunction. 8. The trial court also examined the contention of the defendants as to whether they have been using the B schedule water chal for draining out excess water from their properties. The trial court also on evidence held that the defendants have been using the water chal lying on the western side for draining out excess water from their properties. The court also considered the question as to whether the defendants are entitled to easement right over counter claim B schedule water chal to drain out excess water from their properties. The claim of the defendants was also considered in the light of the evidence on record and the court concluded that the defendants are entitled to an easement right by prescription and that since the chal was filled up and added to the rest of the plaint schedule properties the defendants can claim restoration of the water chal without raising a claim for recovery of possession. The court also held that the defendants failed to prove that loss was caused to them ::11:: S.A.No.220 Of 2003 as claimed in the counter claim and therefore repelled the contention that the defendants are entitled to compensation by way of damage. The court held that the evidence is not sufficient to hold that damage caused to the defendants was due to the alleged mischievous acts of the plaintiffs. No data is available to ascertain the actual amount spent by the defendants for cultivation and actual loss caused to them. The trial court dismissed the suit and partly allowed the counter claim. 9. The lower appellate court also considered the contentions of the parties on the basis of the oral and documentary evidence. The oral evidence tendered by PWs 1 to 3 and DWs 1 to 4 were examined. The documentary evidence was also discussed in detail including the three commission reports. The lower appellate court also agreed with the findings of the trial court on the basis of the evidence. The lower appellate court also reached the conclusion that when the commissioner inspected the property, it is clearly seen that the thodu portion is through the appellants' property and was closed by the appellants immediately prior to the suit. The lower appellate court also concluded that the only source of draining ::12:: S.A.No.220 Of 2003 the excess water from the defendants' property is through the plaintiffs' property i.e., through the water chal now closed by the plaintiffs. After evaluating the evidence of witnesses and reports of the commissioner, the ower appellate court also held that the thodu portion was blocked by the appellants and put up a compound wall in the starting point touching the plaintiffs' property. The learned Judge also noted that the thodu portion through the appellants' property is covered with fresh soil. The lower appellate court also relied on the evidence of witnesses on the side of the defendants in order to find that there was a thodu through the plaintiffs' property and was used by the defendants for so many years. The lower appellate court also considered the contention of the defendants as to whether they have got right of easement by prescription for draining out excess water collected in their property through the water chal situated in the plaintiffs' property. The lower appellate court also after appreciating the evidence found that the defendants have got right of easement by prescription for draining water through property of the plaintiffs. The lower appellate court confirmed the findings of the trial court. The cross objection filed against disallowing the claim ::13:: S.A.No.220 Of 2003 for damages was also considered and found that the defendants are not entitled to claim damages for want of sufficient data. 10. The contentions raised by the appellants/plaintiffs were considered by the fact findings courts elaborately and findings were arrived at solely based on facts, circumstances and evidence. The lower appellate court fully agreed with the findings of the trial court after evaluating the evidence on record. I do not find any reason to interfere with the findings of facts recorded by the fact finding courts. No question of law muchless any substantial questions of law arises for consideration in the appeal. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-