Narayanan Nair and Balakrishnan v. Thampan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932** ## **SA.No. 399 of 2001(E)** **------------------------------** **AS.55/1997 of SUB COURT, MUVATTUPUZHA OS.200/1994 of MUNSIFF COURT,MUVATTUPUZHA ....................** ## **APPELLANT(S): APPELLANTS/DEFENDANTS** **-----------------------------------------------------------------** **1. NARAYANAN NAIR, OZHIYARATH HOUSE, RAMANGALAM KARA, MARADY VILLAGE.** **2. BALAKRISHNAN S/O. NARAYANAN NAIR, OZHIYARATH HOUSE, RAMANGALAM, MARADY VILLAGE.** - **BY ADVS. SRI.S.ANANTHASUBRAMANIAN SRI.S.SHYAM** **SRI.SAJI VARGHESE KAKKATTUMATTATHIL SRI.LATHEESH SEBASTIAN** ## **RESPONDENT(S): RESPONDENT/PLAINTIFF** **---------------------------------------------------------------** **THAMPAN, S/O. KUNJUMON, CHIRACKAL HOUSE, RAMANGALAM KARA, MARADY VILLAGE.** ## **ADV. SRI.P.V.BABY** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **HARUN-UL-RASHID, J. -----------------------S.A.No.399 Of 2001** ## **---------------------Dated this the 14[th] day of February, 2011.** ## **J U D G M E N T** The following substantial questions of law are formulated at the time of admission: _i) Having regard to the facts, circumstances and evidence in the case is not the principle analogue to that in Section 22 of the Easement Act attracted for doing justice to the person who has been such enjoyment under mediation?_ _ii) When continuous properties-paddy fields slopping down from east to west were in enjoyment of different owners with the facility of natural flow of excess water from the higher level eastern segments of the properties to the lower level western segments and have been in such enjoyment continuously as of right for more than 50 years can the owners of the western lower segments obstruct such free flow of water even if it be later changed to pass through defined channels?_ _iii) Have not the courts below committed a grave error of law in not property adverting to the facts and circumstances and evidence regarding putting up of sluices for the discharge of excess water through defined channel as agreed to by both parties when the servient owner wanted to construct residential building after reclaiming his land raising its level and to put up compound wall?_ **::2::** ## **S.A.No.399 Of 2001** 2. The defendants in O.S.No.200 of 1994 on the file of the Munsiff Court, Muvattupuzha are the appellants. The appeal is directed against the judgment and decree in A.S.No.55 of 1997 on the file of the Sub Court, Muvattupuzha. Suit was filed for a permanent injunction restraining the defendants from trespassing into the plaint schedule property or from constructing any thodu or kana through the plaint schedule property and from demolishing the boundary wall. The trial court decreed the suit. The lower appellate court confirmed the findings and dismissed the appeal. Hence the second appeal. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 3. The plaintiff claims title to plaint schedule property as per Ext.A1 sale deed. The properties of the plaintiff and defendants are separated by a wall. There is a 'kana' through the northern side of the properties of the plaintiff and defendants belonging to the Municipality. The properties of the plaintiff and defendants are lying contiguously. The property of the plaintiff is on the western side and that of the defendants is on the eastern side. The properties of the parties are lying on the southern side of the PWD road. There is no dispute with regard to the title of **::3::** ## **S.A.No.399 Of 2001** the properties belonging to them. The boundary wall separating the properties of the plaintiff and defendants is a wall made of laterite stones. According to the plaintiff there is a drainage from his property to the 'kana' in the road for the purpose of discharging waste water from his house. The plaintiff filed the suit alleging that the defendants are attempting to construct a new 'kana' through the eastern side of the property of the plaintiff by demolishing the boundary wall. The property of the plaintiff is in a higher level than the property of the defendants. It is a fact that previously both the properties were paddy field and the same were subsequently converted into 'purayidam'. The plaintiff has a case that water from the property of the defendants was discharged through the PWD kana and not through his property. It is also alleged by the plaintiff that the defendants used to make some openings in the boundary wall with the intention to harass the plaintiff and that if the openings to the Municipal kana from the property of the defendants is closed then water will flow to the property of the plaintiff. **::4::** ## **S.A.No.399 Of 2001** 4. The defendants contended that their property was in a higher level from the property of the plaintiff and water from his property was flowing towards the property of the plaintiff for that purpose, some sluices are left in the boundary wall. According to the defendants during 1987-88 one Baby Joseph purchased the property from the plaintiff and after purchase Baby Joseph raised the level of the property by dumping soil, that the said act caused obstruction to the free flow of water from his property. Defendants also submitted that they lodged a complaint to the Municipal Authorities, that Municipal Authorities came to the spot and advised them to settle the dispute by themselves. It is further stated that consequent to the intervention of the Municipal Authorities, Baby Joseph constructed a granite wall on the eastern side of the property leaving an 'oda' of 2 feet adjacent to the previously constructed laterite wall and thereafter the water from the property of the defendants was flowing to the 'oda' and from there to the pond and finally to the river. According to the defendants there was no obstruction in the flow of water till 1994. It is the defendants' case that the plaintiff filled the 'oda' in his property with the aid of the police and **::5::** ## **S.A.No.399 Of 2001** therefore, when the flow of water to the property of the plaintiff was obstructed the water level gone up in his property and his pineapple cultivation was destroyed. It is also alleged that since the 'kana' of PWD is in a higher level from the property water could not be flown to the PWD 'kana'. Now the property of the plaintiff is in a higher level therefore excess water from his property is flowing to the northern side. 5. Parties adduced oral and documentary evidence. PW1 and DWs 1 to 3 were examined and Exts.A1, B1 and B1(a) were marked. Exts.C1 & C1(a) report and sketch were also marked. 6. Defendants claimed right of easement. The trial court after appreciating the oral and documentary evidence held that the nature and lie of the property of the plaintiff was materially changed during 1990 period and thereafter the property of the plaintiff in in a higher level from the property of the defendants. The trial court further held that even if there was any natural right on the side of the defendants to flow the water to the property of the plaintiff the same was extinguished in 1990-91 when the level of the plaintiff's property was raised. The defendants are claiming that they have got every right to flow **::6::** ## **S.A.No.399 Of 2001** water through a well defined 'oda' in the property of the plaintiff. Such a right could be acquired only by prescription, for that there should be a continuous user of 20 years. The trial court held that even if there was any natural right for the defendant to flow the water to the property of the plaintiff the same was extinguished when the level of the property was raised and therefore user of 20 years period for claiming right of easement by prescription is not possible. Therefore the court held that plaintiff cannot claim easement right by prescription. The trial court decreed the suit as prayed for. 7. The lower appellate court for the very same reasons agreed with the findings of the trial court and dismissed the appeal. 8. The learned counsel for the appellant/defendant pointed out that admittedly free flow of water from his property to the plaintiff's property was blocked by the plaintiff by raising the level of his land for the construction of a building. At that point of time there arise a dispute. At the mediation of the Municipal Authorities the plaintiff provided a definite channel for flow of excess water. Learned counsel also pointed out that when **::7::** ## **S.A.No.399 Of 2001** contiguous properties slopping down from east to west were in enjoyment of different owners with the facility of natural flow of excess water from the higher to the lower level and had been in such enjoyment continuously as of right for more than the statutory period there is no justification for the plaintiff to obstruct such free flow of water. The learned counsel also pointed out that the act of putting up of sluices for the discharge of excess water through a definite channel as agreed by both parties, the servient owner wanted construction of a building after reclaiming his land, the plaintiff is not justified in putting up the boundary and blocking the free flow of water. According to the learned counsel the right of the defendants to the flow of excess water through the 'kana' done under mediation, cannot be deprived unilaterally by the subsequent purchaser of the adjacent property. 9. It is a proved fact that the nature and lie of the property of the plaintiff was materially changed during 1990 period and thereafter the property of the plaintiff is in a higher level than the property of the defendants. The courts below are not justified in finding that even if there was any natural right on **::8::** ## **S.A.No.399 Of 2001** the side of the defendant to flow of water to the property of the plaintiff the same was extinguished in 1990-91 when the level of the plaintiff's property was raised and that now the defendants' claim is confined to the flow of water through a well defined 'oda' in the plaint schedule property, the courts below held that such a right could be acquired only by prescription and for that purpose there should be a user of 20 years. The reasons of the court below is not justified in the facts and circumstances of the case. If the defendants were enjoying the free flow of water from their property to the property of the plaintiff and the free flow of water which was enjoyed by the defendants was accepted in the mediation and as a settlement the adjacent owner provided a definite channel for free flow of water, the free flow of water through the 'kana' according to the defendants was done under mediation and therefore cannot be deprived unilaterally by the subsequently purchaser of the property. 10. Learned counsel also cited the illustration (i) to Section 7(b) of the Indian Easement Act. Illustration (i) reads as follows: **::9::** ## **S.A.No.399 Of 2001** _“7(b)(i): The right of every owner of upper land that water naturally rising in, or falling on such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto”._ The learned counsel also relied on Section 22 of the above Act, which reads as follows: _“22. Exercise of easement. Confinement of exercise of easement:- The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined”._ Relying on the aforesaid provisions the learned counsel for the appellant submits that the courts below did not advert to the relevant provisions referred above in the Easement act and also failed to rely on the pleadings and evidence recorded in the case in the right perspective and therefore wrongly concluded that the right of the defendants was extinguished in 1991 when the level of the plaintiff's property was raised. The observations of the courts below was that the defendants' claim to flow of water **::10::** ## **S.A.No.399 Of 2001** through a well defined 'oda' in the property of the plaintiff and that such right could be acquired only by prescription by continuous user for 20 years. The learned counsel pointed out that the natural right of flow of water enjoyed by the plaintiff was subsequently, on mediation, directed through a well defined 'oda' is an act which is in accordance with the provision of the Indian Easement Act and therefore the plaintiff is not entitled to the relief claimed in the suit. The learned counsel pointed out that the facts, evidence and circumstances are appreciated without understanding the pleadings and correct principles of law applicable and therefore the suit happened to be decreed. The learned counsel also submitted that the substantial questions of law arise for consideration relates to right of flow of water enjoyed by providing a defined outlet. The learned counsel also cited the following decisions in support of his contentions namely, _**Patneedi Rudrayya v. Velugubantla Venkayya and others**_ (AIR 1961 SC 1821), _**Narasimhan and others v. Bhadrayya and others**_ (AIR 1933 Madras 10) and _**Chhadami Lal v. The General Manager, Western Railway and another**_ (1962 ILR AC 58). **::11::** ## **S.A.No.399 Of 2001** 11. Taking into consideration the contentions of the appellants, this Court is of the view that the contentions have some force. It is seen that the scope and ambit of the suit was not appreciated and understood in applying the correct principles of law applicable. The pleadings and the evidence on record are also appreciated without referring or adverting to the provisions of law which I have referred to in the preceding paragraphs. In the circumstances, the matter requires reconsideration. In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The case is remanded to the trial court for denovo consideration in accordance with law. The parties shall appear before the court below on _**31.3.2011**_ . The parties are at liberty to adduce further evidence, if so advised. The trial court shall dispose of the suit at the earliest opportunity. There will be no order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-