Dismissed

Marappan v. Sakthival,S/O.Late Muthuswamy and Others

Kerala HC9 Jul 2012RSA/1063/2009

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration of title and prohibitory injunction, the High Court of Kerala dismissed the appellant's challenge to the first appellate court's judgment. The court upheld the 1st respondent's right to take water through underground pipes but clarified this right does not extend to using the appellant's motor pump, permitting entry without trespass characterizat

What did the court decide?

Second appeal dismissed subject to undertaking of no waste; interlocutory applications dismissed.

Marappan Vs Sakthival,S/O.Late Muthuswamy and Others — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934

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RSA.NO. 1063 OF 2009 ( )

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AS.129/2004 DISTRICT COURT, PALAKKAD OS.279/2001 OF MUNSIFF COURT, CHITTUR

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APPELLANT/1ST RESPONDENT/PLAINTIFF:

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MARAPPAN

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AGED 55 YERS, MANGAPALLAM KALAM, ERUTHENPATHY VILLAGE, CHITTUR TALUK.

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BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA

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RESPONDENTS/APPELLANTS/RESPONDENTS/DENDANTS 1 TO 4 AND 6 TO 8:

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1. SAKTHIVAL,S/O.LATE MUTHUSWAMY AND OTHERS AGED 53 YEARS, MANGAPALLAM KALAM, ERUTHEMPATHY VILLAGE, CHITTUR TALUK.

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2. VIJAYALAKSHMY, W/O. SATHIVAL, AGED 42 YEARS, DO-

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3. VEDHANAYAKI, D/O. SAKHIVAL AGED 25, DO-DO-

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4. MANGALA GOURI, AGED 23 YEARS, D/O. DO-DO-

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5. KANDIAMMAL @ ANNAMAL, W/O. PAZHNISWAMY GOUNDER, D/O. LATE MUTHUSWAMY GOUNDER, MANGALAM R.V.T. PUDUR, ERUTHENPATHY VILLAGE, CHITTUR TALUK.

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R.S.A. No.1063 of 2009

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6. LOKANAYAKI, W/O. VELLINGIRI, NO.12, CHELLANKUMARA GOUNDER VISTRIPPIL VAKAKKUPALAYAM, POLLACHI TALUK.

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7. SAKTHIVAL, S/O. MAILATHAL PUDUR, PERIAPOTHU, POLLACHI TALUK.

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BY ADV. SRI.P.SANTHALINGAM (SR.) BY ADV. SRI.S.SHARAN

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.1063 of 2009

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====================================

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Dated this the 09^th day of July, 2012

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J U D G M E N T

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Plaintiff in O.S. No.279 of 2003 of the court of learned

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Munsiff, Chittur is the appellant before me.

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Appellant sued the respondents for declaration of title and

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prohibitory injunction. Learned Munsiff granted the decree as

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prayed for. First respondent-1^st defendant challenged that

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judgment and decree in the court of learned District Judge,

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Palakkad in A.S. No.129 of 2004. That appeal was allowed in part

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modifying the judgment and decree of the trial court. Aggrieved

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by that judgment and decree plaintiff has preferred this Second

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Appeal.

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R.S.A. No. 1063 of 2009

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-: 2 :-

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According to the appellant suit property originally belonged

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to Muthuswamy Gounder, father of appellant and respondents 1

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to 6. He gifted the property to appellant as per settlement deed

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No.920 of 1983. A motor pump was installed in the property for

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irrigation purpose. While so, 1^st respondent filed O.S. No.483 of

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1986 against Muthuswamy Gounder claiming a right of easement

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to draw water from the Well making use of the motor pump.

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Muthuswamy retaliated that by filing O.S. No.501 of 1989 Both

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the suits were dismissed. According to the appellant in view of

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the dismissal of O.S. No.483 of 1986, 1^st respondent is not entitled

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to make any right of easement over the suit property. First

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R.S.A. No. 1063 of 2009

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-: 3 :-

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respondent is attempting to trespass into the suit property and

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hence the suit.

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Respondents denied that they attempted to trespass into

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the suit property. They claimed that 1^st respondent is drawing

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water from the Well situated in the suit property for irrigation of

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his own property and that though O.S. No.502 of 1989 was

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dismissed right of 1^st respondent to take water from the Well in

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the suit property was upheld. Hence 1^st respondent has a right of

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quasi easement to take water from the Well in the suit property.

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Trial court negatived the contention of 1^st respondent and

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granted a decree in favour of the appellant as prayed for. Trial

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R.S.A. No. 1063 of 2009

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-: 4 :-

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court was of the view that 1^st respondent has no right in the suit

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property.

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First appellate court found from Ext.A4, judgment in O.S.

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No.483 of 1986 and 501 of1989 that the claim of easement

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made by 1^st respondent was upheld and hence 1^st respondent cannot be injuncted from taking water from the Well in the suit

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property through underground pipes for irrigation of his own property. Accordingly judgment and decree of the trial court were

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modified while confirming the decree for declaration of title, the

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decree for injunction was set aside. Hence this Second Appeal.

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Learned counsel for appellant contended that claim of

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R.S.A. No. 1063 of 2009

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-: 5 :-

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easement raised by 1^st respondent is not established and in view

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of the dismissal of O.S. 483 of 1986 filed by the 1^st respondent

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specifically claiming right of easement over the Well, motor

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pump, etc., 1^st respondent cannot make a further claim in the

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present litigation. It is also contended that at any rate 1^st respondent has no right to make use of the motor and pump installed in the Well in the suit property.

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Learned counsel for 1^st respondent contended that though

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O.S. No.483 of 1986 Is dismissed claim of easement raised by 1^st

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respondent has been upheld specifically. The father of 1^st

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respondent (Muthuswamy Gounder - defendant in O.S. No.483 of

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R.S.A. No. 1063 of 2009

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-: 6 :-

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and plaintiff in O.S No.501 of 1989 filed appeal against

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Ext.A4, judgment where there was a settlement and that was

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followed by a compromise decree.

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In Ext.A4, a copy of which is given to me for perusal, learned

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Munsiff has specifically held in paragraph 17 that 1^st respondent can take water from the Well in the suit property through

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underground pipes to his property (marked as C schedule in that case) which will not be interfered with by the late Muthuswamy

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Gounder. But that right is exercisable without using motor,

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pump and other accessories attached to the Well described in

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the plaint schedule in O.S No..501 of 1989 and without

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R.S.A. No. 1063 of 2009

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-: 7 :-

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unreasonably burdening the property of Muthuswamy Gounder.

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Learned Munsiff made it clear that what is permitted is to take

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water from the Well in the suit property in O.S. No.501 of 1989

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through underground pipes.

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It is without giving proper consideration of the permission

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granted to the 1^st respondent in Ext.A4 that trial court proceeded

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to grant a decree for prohibitory injunction against him. No

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doubt, O.S. No.483 of 1986 was dismissed but by Ext.A4,

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judgment and specific right has been granted to the 1^st

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respondent. It is not a mere finding. The right given to the 1^st

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respondent as per Ext.A4 was executable as well. It is certainly

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R.S.A. No. 1063 of 2009

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-: 8 :-

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therefore that Munthuswamy Gounder filed appeal against the

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dismissal of O.S. No.501 of 1989. Assuming that s compromise

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decree was passed hence the question of res judicata does not

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arise .that compromise decree will operate as estoppel against

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Muthuswamy Gounder and following him the appellant. In the circumstances first appellate court was right in recognizing the

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right of 1^st respondent accepted and upheld by the learned Munsiff by Ext.A4, judgment and modified the decree granted

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by the trial court accordingly.

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Learned counsel for appellant contends that at any rate 1^st

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respondent has no right to use the motor and pump installed by

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R.S.A. No. 1063 of 2009

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-: 9 :-

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the appellant or his predecessor in interest in the Well in the suit

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property. I must notice that in Ext.A4, judgment also it is

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specifically mentioned that 1^st respondent has no right to use the

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motor, pump or other accessories installed in the Well in the suit

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property. I must also notice that the first appellate court while modifying the decree in O.S. No.279 of 2001 did not also grant

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any right to 1^st respondent to use any motor, pump or accessories installed in the Well in the suit property. It is clear from the

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direction given by the first appellate court in its judgment that 1^st

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respondent will have to use his own mechanism for drawal of

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water from the Well in the suit property (in the manner referred to

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R.S.A. No. 1063 of 2009

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-: 10 :-

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in Ext.A4, judgment)

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Further contention learned counsel advanced is that 1^st

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respondent might under the cover of the decree of first appellate

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court vacating the trial court decree for prohibitory injunction

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trespass into the suit property and commit waste.

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So far as the apprehension of trespass is concerned I do not

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find any merit in that since for the enjoyment of the right

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provided to the 1^st respondent as per Ext.A4, judgment and

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decree of the first appellate court he is entitled to enter the suit

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property. That cannot be characterized as a 'trespass'. But under

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the cover of right guaranteed to 1^st respondent as per Ext.A4 and

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R.S.A. No. 1063 of 2009

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-: 11 :-

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by the decree of the first appellate court 1^st respondent cannot

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commit waste in the suit property. Learned counsel for 1^st

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respondent has undertaken that 1^st respondent will not commit

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any waste in the suit property. That undertaking is recorded and

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is sufficient to allay the apprehension of the appellant.

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Otherwise I do not find no substantial question of law

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involved for a decision by this Court.

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Resultantly, subject to the undertaking made by learned

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counsel on behalf of 1^st respondent that he will not commit waste

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in the suit property, this Second appeal is dismissed.

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R.S.A. No. 1063 of 2009

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-: 12 :-

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Marappan v. Sakthival,S/O.Late Muthuswamy and Others

Case brief

What is this about?

What did the court decide?

Marappan v. Sakthival,S/O.Late Muthuswamy and Others

Case brief

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