P. U. Varghese and Sosamma v. P. V. Murali and K. K. Mini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** ## **RSA NO. 584 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 18.07.2019 IN AS 148/2018 ON THE FILE OF ADDITIONAL DISTRICT COURT, MOOVATTUPUZHA, WHICH IS AGAINST THE JUDGMENT AND DECREE DATED 20.09.2017 IN OS 40/2013 ON THE FILE OF MUNSIFF COURT, MUVATTUPUZHA APPELLANTS/RESPONDENTS/DEFENDANTS:** - 1 P.U. VARGHESE, AGED 46 YEARS S/O.ULAHANNAN @ ONACHAN, PULICKAKKUNNEL HOUSE, VADAKARA, OLIYAPPURAM P.O., THIRUMARADY VILLAGE, KOOTHATTUKULLAM. - 2 SOSAMMA, AGED ABOUT 63 YEARS W/O.ULAHANNAN @ ONACHAN, PULICKAKKUNNEL HOUSE, VADAKARA, OLIYAPPURAM P.O., THIRUMARADY VILLAGE, KOOTHATTUKULLAM. BY ADVS. T.P.PRADEEP SRI.S.SREEDEV ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** - 1 P.V. MURALI, AGED 51 YEARS, S/O. VASAPPAN, UPPENAYIL PUTHENPURAYIL HOUSE, VADAKARA, OLIYAPPURAM P.O., THIRUMARADY VILLAGE, KOOTHATTUKULAM, ERNAKULAM DIST. - 686 662. - 2 K.K.MINI, AGED 46 YEARS, W/O.P.V.MURALI, UPPENAYIL PUTHENPURAYIL HOUSE, VADAKARA, OLIYAPPURAM P.O., THIRUMARADY VILLAGE, KOOTHATTUKULLAM, ERNAKULAM DIST. - 686 662. BY ADV P.K.RAMKUMAR ## **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022,** ## **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A NO. 584 OF 2020 **2** ## **JUDGMENT** **Dated this the 23[rd] day of November, 2022.** This R.S.A has been directed against the judgment and decree in A.S.No.148 of 2018 on the file of Additional District Court, Muvattupuzha which in turn arise out of the judgment and decree in O.S.No. 40 of 2013 on the file of Munsiff's Court, Muvattupuzha. 2. Defendants are appellants. Suit is one for permanent prohibitory injunction and mandatory injunction. (Parties hereinafter be referred as per their status before the Trial court). Plaint A schedule property belong to plaintiffs as per Ext.A1. On the north of the plaint A schedule property is the property of the defendant which is described as plaint B schedule. There is a water channel on the southern side of plaint A schedule property and plaint A schedule property is bounded with compound walls on all four sides. In July 2007, the father of the 1st defendant and the husband of the 2nd defendant Sri.Ulahannan requested permission R.S.A NO. 584 OF 2020 **3** of the plaintiffs to fix a PVC pipe from plaint B schedule to the water channel situated on the south through plaint A schedule property to drain water from plaint B schedule property. He promised to remove the pipe as and when directed by the Plaintiffs. After the death of Sri. Ulahannan, defendants have been using C schedule pipe to drain out excess water from B schedule which was only given as a license. During 2009, plaintiffs came to know that defendants are using C schedule to drain out filthy water from the bathroom, washing cloths and cleaning dishes. Water in the well situated on the south-eastern portion of the plaint A schedule property is being contaminated due to the act of the defendants. There was requests from the people in the locality to stop draining of filthy water through C schedule. Complaints were made before various authorities, but with no results. So plaintiffs informed the defendants about the revocation of the licence and requested to remove the pipes within two weeks. Defendant is a trespasser. Hence the suit has been filed for mandatory injunction to direct the defendants to remove C R.S.A NO. 584 OF 2020 schedule pipe and also for a perpetual injunction for restraining the defendant from trespassing into plaint A schedule property or in using any portion of A schedule for draining water from B schedule. 3. Defendants filed written statement contending that the water from the road abutting B schedule used to flow to B schedule property naturally and there was no wall between plaint A and B schedule property earlier. Hence there was a natural flow of water from plaint B schedule to A schedule. Plaintiff requested the defendant to make arrangement to stop the flow of water through the entire width of plaint A schedule and also confine the flow of water through a particular portion. The defendants informed that if a pipe is laid water can be released through pipe. As a consideration plaintiff demanded the defendants to construct the compound wall in between plaint A and B schedule properties to a height of 5 feet. Accordingly defendants constructed the compound wall inside the plaint B schedule. The wall was constructed after pipe is laid. Plaint B schedule is an extent of 2 R.S.A NO. 584 OF 2020 **5** Cents in which the house is occupied. The defendants effected permanent construction to divert the water in the B schedule in the north-eastern corner of B schedule property. The water in the B schedule can only be drained through C schedule pipe. The permission granted to lay the pipe is an irrevocable license. Only rain water which flows from the road alone is draining through the C schedule. The waste water are being collected in pits formed in plaint B schedule. Defendant spent money for making permanent construction of permanent nature. There is no revocation of license and it was not informed to the defendants also. 4. Pws 1 to 3 examined and Exts.A1 marked from the plaintiffs. DW1 examined and Ext.C1 series were also marked. 5. Trial court found that plaint C schedule is a permanent structure and it is also found there is no other way for the defendant to drain water collected in B schedule property and hence it is found that license granted is irrevocable and accordingly dismissed the suit. Against which appeal was filed and R.S.A NO. 584 OF 2020 **6** first appellate court on reappreciating the facts and evidence adduced and law involved found that laying of pipe cannot be treated as work of permanent character and license granted is revocable and decreed the suit as prayed for. 6. Against which appellant/defendant approaches this Court in this R.S.A. Lower court records were called for and both sides were heard. 7. The title of plaintiffs and defendants over plaint A schedule and B schedule property are not a dispute. Plaint C schedule is a PVC pipe erected for draining rain water from plaint B schedule property to the water channel situated on the southern side of plaint A schedule property. The fact that C schedule pipe was installed on the permission of the plaintiff through plaint A schedule property is also not in dispute. According to the learned counsel for the defendant, the plaint B schedule property is lying in a lower learn than the road situated on the north and the natural flow of rain water from the said road is to plaint B schedule R.S.A NO. 584 OF 2020 **7** property and before the construction of compound wall separating plaint A and B schedule properties the said water was flowing from B schedule property spreading through A schedule property. Defendants contended that he had put up the compound wall as a condition for permitting him to erect PVC pipe for draining the excess water that fall in plaint B schedule property. But defendant could not establish that fact and from the plaintiff’s side the Mason who constructed the compound wall was examined. Now the only question for consideration is whether the PVC pipes so installed through the plaint A schedule property for draining water from the plaint B schedule property is a permanent structure to contend that the license granted is a irrevocable license by the plaintiff. The learned counsel for the defendant in this context brought my attention to _**Bhargaviamma v. Abraham**_ [2021 6 KHC 388] wherein while dealing with Section 60 of the Easement Act, 1882 it has been held by a learned Single Judge that license given by the owner of a well to the immediate neighbour to fix up a water pipe inside the well for drawing drinking water for daily use to his house and R.S.A NO. 584 OF 2020 **8** consent of plaintiffs to draw drinking water for daily use and permission of the plaintiff to fix a water pipe inside the well with electricity connection from the defendant's house cannot be revoked. 8. The learned counsel for the plaintiff on the other hand would vehemently contended that erection of PVC pipes with consent of the plaintiff through his property by the defendant cannot at any moment be taken as a work of permanent character so as to come within the purveiw of Section 60(b) of Indian Easement Act, 1882 (In short 'the Act'). Section 60 of the Act is apposite in the context to be extracted which reads thus: “Licence when revocable-A license may be revoked by the grantor, unless- a) It is coupled with a transfer of property and such transfer is in force; b) the licensee, acting upon the licence has executed a work of a permanent character and incurred expenses in the execution.” 9. As per Section 60( a) License cannot revoked if it is coupled R.S.A NO. 584 OF 2020 **9** with transfer of property and said transfer is in force.So the first part of Section 60 is not applicable to the case in hand. As per clause (b), a licensee acting upon license if executed a work of permanent character and incurred expense in the execution of work it cannot be revoked. 10. In Page No. 1109 Paragraph 95 of Indian Easement Act, 1882 by Srinivasan's Commentaries on Law Relating to Easements & Licences 4[th] Edition describes permanent structure and its meaning which reads thus: “Permanent structures-meaning- Though the expression “work of permanent character” has not been defined in the Easements Act, some guidance may be obtained in this regard from the Assam Non-agricultural Urban Areas Tenancy Act, 1955 wherein “permanent structure” has been defined. The Court referred to this Act not because it applies to the present case, but because it throws some light on the question at hand. This Act has dealt with the rights of lessees of non-agricultural land in urban areas of this State whereas, the Court was concerned with rights of licensees of such land. The expression “permanent structure” has been defined in Sec. 3(d) of this Act as below: “Permanent structure” means a structure made of cement, concrete, stone, brick, iron, aluminum, asbestos or wood or any R.S.A NO. 584 OF 2020 combination of these materials. Provided that the building with bamboo or akra walls and thatched roof shall also be regarded as a permanent structure if its frame is constructed of any of the materials mentioned above.” 11. It is relevant in this context to quote _**Saraswathi v. M/s Bharath Textiles**_ [1992 (1) KLT 863] wherein while dealing with Section 60(b), a learned Single Judge of this Court considered the importance of pleading of the right under Clause (b )of Section 60 of the Act by quoting _**Ram Sarup Gupta, (Ram Sarup Gupta v. Bishun Narain Inter Collegiate and Others**_ (AIR 1987 SC 1242) and principles laid down which reads as follows: a) The object of pleading being to inform the opponent of the case he has to meet, the written statement, should inform the plaintiff that the defendant claims to have built the pump house in pursuance of a license. b) While in construing the written statement, hair-splitting technicalities should be avoided, and the substance understood, the written statement must state material facts, such as, grant of license and erection of permanent structure, acting upon such license. c) Even if such a case is not specifically set out, if there is an issue about such right, the plaintiff must be taken to have R.S.A NO. 584 OF 2020 known the case, he has to meet. d) If evidence has been let in without an issue or pleading, about irrevocability of license, such evidence should be ignored. e) Even if the written statement is deficient, it is enough if the plaintiff knew that he has to meet a case under Section 60(b) of the Easements Act. 12. In the written statement in the case on hand it has been contended that plaintiffs approached the defendants to avoid the flow of water through A schedule from defendant's property. Then defendants made suggestion that if they were permitted to lay a pipe through the eastern boundary of plaint A schedule property from south-eastern corner of the plaint B schedule it can be done. For which plaintiff demanded to construct a compound wall to an average hight of 5 feet separating plaint A and B schedule properties and accordingly they constructed a compound wall by spending money and before constructing the compound wall itself pipe has been put. So that is the contention with regard to construction in the written statement. But at the time of argument, the learned counsel for the defendants would contend R.S.A NO. 584 OF 2020 **12** that they have made permanent construction in B schedule for erecting the pipe and it is also his contention that the pipe erected for such purpose will be a permanent construction but as has been held in the above decision _**Saraswathi (supra),**_ in order to claim the benefit under Section 60(b) of the Act there should have a pleading for the same. Here the pleading in the written statement is with regard to construction of compound wall separating plaint A and B schedule properties. 13. It is true that in _**Mohan v. Sarath Chandran Nair**_ [2016 (4) KLT 15], the learned Single Judge of this Court has held that parties by an agreement can make a license irrevocable even if it is not covered by Clause (a) or Clause (b) of Section 60 of the Act. Though contention was raised in the written statement to the effect that they have constructed the compound wall in view of the agreement between the parties for permitting the defendant to flow water from plaint B schedule property by installing pipe, no evidence what so ever has been adduced by the defendants to substantiate that contention. R.S.A NO. 584 OF 2020 14. On the other hand, plaintiffs examined PW2, Mason who carried out construction of the compound wall separating plaint A and B schedule properties. He filed chief affidavit solemnly affirming that compound wall has been constructed by him at the instance of the plaintiffs. Though he was cross examined at length, nothing was brought out to discredit his testimony regarding the construction of the compound wall. On the other hand, the defendants could not adduce any evidence to prove that compound wall has been constructed acting upon the license granted by the plaintiffs in drawing the pipe line through plaintiffs property apart from the interested testimony of Dw1. 15. As stated earlier there is no pleading of permanent construction in plaint B schedule property for erecting the pipe, in the written statement apart from the contention of constructing compound wall which was proved to be false. Commissioner categorically reported that pipe has not been concreted and is possible to be removed as and when required. It is further reported that in the starting point of the pipe the property of the R.S.A NO. 584 OF 2020 **14** defendants has been concreted and kept clean. So there is no material in the commissioner's report to show that any permanent construction has been made for erecting PVC pipe. So defendants could not establish that acting upon the license given by the plaintiffs for erecting the pipe he had executed a work of permanent character spending money for drawing C schedule pipe. 16. Plaint C schedule property is a PVC pipe installed in a condition which could be removed as and when required cannot at any moment be taken as permanent structure to claim the benefit under Section 60(b) of the Act. _**Bhargaviamma (supra)**_ is a case in which license was given to the immediate neighbour to fix up the water pump inside the well for drawing water. In that case, defendants consented the plaintiffs to draw the drinking water for daily use to his house and permitted the plaintiffs to fix a water pump inside the well with the electricity connection from the defendant's house. In the said circumstances, finding that right conferred on plaintiffs is one of a basic human right, it was held that it cannot be revoked. It has no application in the present case. R.S.A NO. 584 OF 2020 **15** Plaint C schedule PVC pipe has been erected for drawing rain water from the B schedule property and the cause of action for filing the suit is that the defendants started drawing waste water and other filthy water through C schedule PVC pipe. Thereupon the plaintiff revoked the license which is already found to be in order. So on evaluation of the facts and circumstances, I am of the considered view that judgment and decree passed by the 1[st] appellate court is legal and proper and I do not find any substantial question of law emerging for consideration for entertaining this Second Appeal. In the result, appeal is found to be devoid of any merit and hence, dismissed. No cost. rps/ ## **M.R.ANITHA, JUDGE**