K. SADANANDA SHETTY v. BALAKRISHNA SHETTY and ABBAKKE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929** **WP(C).No. 3390 of 2008(C)** **-------------------------------------** **CMA.18/2007 OF DISTRICT COURT, KASARAGOD, OS.407/2006 OF MUNSIFF COURT, KASARAGOD.** **....................** **PETITIONER:** - **-------------------** **K.SADANANDA SHETTY, 44 YEARS, S/O.LATE K.VISWANATHA SHETTY, HINDU, LANDHOLDER, RESIDING AT MEENJA, KANYANA HOUSE, PAIVALIKA VILLAGE, KAYYAR POST, UPPALA VIA, KASARAGOD TALUK AND DISTRICT.** **BY ADV. SRI.KODOTH SREEDHARAN.** **RESPONDENTS:** **------------------------** **1. BALAKRISHNA SHETTY, AGED 40 YEARS, S/O.NARAYANA SHETTY, HINDU, LANDHOLDERS, RESIDING AT MEENJA-KANYANA, PAIVALIKA VILLAGE, KASARAGOD TALUK AND DISTRICT.** **2. ABBAKKE, AGED 72 YEARS,** **W/O.NARAYANA SHETTY, HINDU, LANDHOLDERS, RESIDING AT MEENJA-KANYANA, PAIVALIKA VILLAGE, KASARAGOD TALUK AND DISTRICT.** **BY ADV. SRI.V.V.ASOKAN, ADV. SMT.S.AMINA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.3390/2008-C:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE PLAINT IN O.S. 407/06 DT. 11/12/2007 BEFORE THE MUNSIFF COURT, KASARAGOD.** **EXT.P.2: COPY OF THE INTERIM REPORT OF THE COMMISSIONER DT. 19/12/06 IN O.S. 407/06 OF THE MUNSIFF COURT, KASARAGOD.** **EXT.P.2.A: COPY OF THE FINAL REPORT OF THE COMMISSIONER DT. 23/03/07 IN O.S. 407/06 OF THE MUNSIFF COURT, KASARAGOD.** **EXT.P.2.B: COPY OF THE PLAN OF THE COMMISSIONER IN O.S. 407/06 OF THE MUNSIFF COURT, KASARAGOD.** ## **EXT.P.3: COPY OF THE WRITTEN STATEMENT DT. 30/01/07.** ## **EXT.P.4: COPY OF THE I.A. 449/07 IN O.S. 407/06 DT. 27/02/07 BEFORE THE MUNSIFF COURT, KASARAGOD.** **EXT.P.4.A: COPY OF THE ORDER IN I.A. 449/07 IN O.S. 407/06 OF THE MUNSIFF COURT, KASARAGOD DTD. 30/03/07.** **EXT.P.5: COPY OF THE JUDGMENT IN CMA.18/07 DT. 07/01/08 BY THE DISTRICT COURT, KASARAGOD.** ## **RESPONDENT'S EXHIBITS: NIL.** ## **//TRUE COPY//** **prv.** **==> picture [322 x 70] intentionally omitted <==** **==> picture [118 x 9] intentionally omitted <==** This writ petition is preferred to set aside Exts.P4(a) and P5 orders and to stay further proceedings in E.P.74/07 on the file of the Munsiff Court, Kasaragod. The suit is one for a mandatory injunction directing the defendant to restore the pipeline which was passing through R.S.No.480/1A1C which enable the first plaintiff to take water to the plaint A schedule property. There is also a prayer for permanent injunction. The brief facts are that the plaintiffs are in possession of A schedule property which consists of arecanut and coconut garden. They are irrigating the said area by taking water from the tank situated in R.S.No.478/7 and 480/2 by an electric motor through a PVC pipeline. According to them the said line is passing through the C schedule property. Except the water source, i.e. the tank mentioned therein, there is no other water source. Their predecessors- W.P.C 3390 OF 2008 -:2:- in-interest jointly and peacefully claim the title thereto as of a right of easement without any interruption continuously for more than 20 years ending with two years prior to the filing of the suit. 2. According to them, on 9.12.06 the respondent unlawfully cut and removed the pipeline which is passing through item No.1 of the B schedule property and on 12.12.06 after filing the suit cut and removed the pipeline which is running through items 2 and 3 of the B schedule property thereby causing obstructions to the flow of the water. If the above said pipelines are not restored the whole arecanut garden and the coconut garden will be ruined hence the suit. 3. The respondent had denied the right claimed by the plaintiffs and contended that the plaintiffs have no right and so they are not entitled to the relief as prayed for. It is also alleged that before the enmity started permission was granted at some point of time to lead water by laying pipelines and it has not conferred any right on them. ## W.P.C 3390 OF 2008 -:3:- 4. In the Court below Exts.A1 to A3 and C1 to C3 were marked and on an analysis of the materials available the Court granted an interim mandatory injunction as prayed for against which the CMA was filed which also ended in dismissal. It is against that decision the present writ petition is filed. 5. It is desirable to see the grounds on which the Courts below had granted the order. The Court below has referred to the Commissioner's report and the Commissioner had inspected the property immediately after the institution of the suit. From C1 report of the Commissioner it is clear that the pipeline is running beneath the rain water channel and it is seen at a depth of about 1 ½ feet. The Commissioner reported that pipelines are seen broken at two ends by using force. The Commissioner also reported that the pipelines seen beneath the channel ending near R.S.No.478/7 was also broken by use of force. The Commissioner also opined that it was not done on the eve of the Commissioner's inspection but must be even done a few days or weeks prior to the Commissioner's inspection. W.P.C 3390 OF 2008 ## -:4:- Therefore the Court held that there is no materials to show that the pipelines were not in existence long prior to the institution of the suit. The Court found that the pipeline was in existence as stated by the petitioner. The Court also referred to the admission of the defendant in the written statement that they have occasionally permitted the petitioner to lead the water and therefore the lower Court found that there was a pipeline as mentioned in the petition to lead water to the petition A schedule property. It is in this background the question posed by both the sides have to be considered. 6. I had also perused the sketch submitted by the Commissioner in the matter. The Commissioner had pointed the tank from where water is bailed out by using motor as comprised in R.S.No.478/7. The Commissioner also has pointed out the pipeline that had been cut at points 1, 2, 3, 4 and 5. The property to be irrigated is situated little away from the tank and without recourse to the pipeline, water cannot be taken from the tank to the said place. The Commissioner was not able to see any other sources of water W.P.C 3390 OF 2008 -:5:- in and around the area by which water is taken through pipeline for irrigational facilities. The defendants contended that there was a tank situated near the disputed arecanut and coconut garden and that has been filled up one year prior to the institution of the suit. That are all matters which require in depth consideration at the stage of trial. Now as matters stand there is a tank. There is also a water channel. Tt is submitted that beneath the rain water channel the pipeline was laid and it was through that pipeline water was taken. The Commissioner was able to see remnants of the pipelines as well as the removal of pipelines from certain points. So it is an indicative of the factum that pipeline had been used by the plaintiffs to take water from the tank 'T' to irrigate the arecanut and coconut garden as contended by them. 7. The learned counsel for the writ petitioner had brought to my notice the decision of the Apex Court reported in _**Dorab Cawasji Warden v. Coomi Sorab Warden (1990 (2) SCC 117)**_ . The broad underlying principles which the Apex Court has laid down has been enumerated in ## W.P.C 3390 OF 2008 ## -:6:- ## paragraph 16 of the said judgment. “The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. General guidelines are that the plaintiff must have a strong case for trial. It is necessary to prevent the irreparable or serious injury and that the balance of convenience is in favour of one seeking such relief. The learned counsel also had referred to the decision of this Court reported in _**Unnikrishnan v. Ponnu Ammal (1999 (1) KLT 298)**_ where this Court also reiterated the fact that interim mandatory injunction is a relief of exceptional character and unless and until it is absolutely necessary and there is a strong prima facie case the said thing cannot be granted. 8. On the other hand the learned counsel for the respondent would contend before me that even going by the W.P.C 3390 OF 2008 ## -:7:- decision cited by the learned counsel for the writ petitioner in 1990 (2) SCC 117 it was case where mandatory injunction was granted applying the principles enunciated therein. He had referred to two such decisions of this Court reported in _**Appukuttan Nair v. Hydrose (2004 (2) KLT 350)**_ wherein the suit is of a question of way where a compound wall was constructed just two days prior to the institution of the suit. There was a prayer for restoring the status quo anterior to the dates of the suit. This Court on a consideration of the entire materials including the decision referred to by the counsel for the both the sides in **Dorab Cawasji Warden v. Coomi Sorab Warden (AIR 1990 SC** **867)** held that interim injunction prohibitory or mandatory can be granted even for restoring the status quo anterior to the date of the suit if it is found that it is absolutely necessary. In the other decision referred to by the learned counsel which is reported in _**James v. Jaimon James (1998 (1) KLT 233)**_ the principles are very clearly explained and put forward. W.P.C 3390 OF 2008 -:8:- “Injunctions are a form of equitable relief and they have to be adjusted or moulded in aid of equity and justice to the facts and circumstances of each particular case. Jurisdiction is thus undoubted even under Order 39 Rule 1 and 2. Even if it cannot be granted under the said Rules, S.151 is the source of such jurisdiction. It is not necessary to lay down an absolute proposition at all. So the authorities relied on and cited by both the parties would pin point one fact that when there is a definite prima facie acceptable case and that by not granting an interim mandatory injunction irreparable loss which cannot be compensated by any damages, will be sustained in such cases, the Courts are at liberty to grant interim mandatory injunctions. 9. So with these principles in mind we should analyze the facts and circumstances available before me and it can be seen that admittedly there is a tank and a motor pump through which water is being taken to the field through pipelines. A Commissioner who had inspected the property W.P.C 3390 OF 2008 -:9:- had reported that portions of pipeline had been removed weeks or days prior to the institution of the suit. There is no other water source available for watering the arecanut and coconut garden. When it is so it raises a presumption that arecanut garden and coconut garden are only watered through the motor pump installed and mode of taking water is only through laying a pipeline. At this stage there is no evidence to show that any other water sources are available for the plaintiff to take water to the arecanut or coconut garden. If there had been no water facility at all to irrigate the arecanut and coconut garden certainly it should have been ruined and from the factum that it still remain to be watered indicates about the presumption that it had been watered regularly. It is true that only under an exceptional circumstances interim mandatory injunction can be given. It has to be stated that there is no point in granting a mandatory injunction at the end of the trial of the suit when there will not be any garden to be watered or looked after at all. Further it can be seen the pipelines were only running beneath the rain water channel in the property of the W.P.C 3390 OF 2008 ## -:10:- defendant and it would in no way curtail the enjoyment of the property of the defendant. So these are all positive indications to show the usage of the pipelines as contended by the plaintiff. The learned counsel for the writ petitioner strongly contends before me that when question posed is of easement right by prescription it is mandatory that a prima facie material on continuous usage uninterruptedly as of a right peacefully for the statutory period of 20 years must be proved or at least can be inferred from the materials available. For the reasons I had referred to in the previous paragraphs regarding the existence of an arecanut and coconut garden itself and also the existence of watering pipeline which are all indicative of the factum that water is being used by the parties for irrigating the disputed arecanut and coconut garden. So prima facie materials are sufficient and satisfactorily established to grant a relief of interim mandatory injunction though it is an exceptional order that is to be granted. Unless the mandatory injunction is granted in this case the very purpose of the institution of the suit will get defeated and the balance of convenience in no way will W.P.C 3390 OF 2008 ## -:11:- affect the defendant for the reason that the pipelines only go beneath the water channel situated in the property which will not cause him any irreparable damage at all. So form these discussion I find that the Court below had approached the matter only in the correct perspective and only on the guiding principles laid down by the Apex Court as well as this Court, and then had granted a interim mandatory injunction. Therefore the writ petition lacks merit and it is dismissed. 10. Considering the nature of contentions raised by the parties it is only just and desirable that an expeditious disposal of the case is made and I direct the trial court to dispose of the matter within three months from the date of receipt of a copy of this judgment. Further I make it clear that the suit is to be disposed of untramelled by any of the observations made in this judgment or on the judgment of the Courts below. ## **M.N. KRISHNAN, JUDGE.** ul/-