Dismissed

Asharaf v. Abdul Latheef

Kerala HC17 Jul 2012RSA/839/2012

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court dismissed the challenge to the First Appellate Court's decree. The First Court had granted an injunction to respondents against appellants obstructing the natural flow of water in paddy fields, restricting construction/bunds that would divert water flow, rejecting the appellants’ claim of authorization for fish farming bunds.

What the court decided

AI extract

Asharaf Vs Abdul Latheef — Civil Procedure and Limitation | Kerala HC (2012)

¶1

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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TUESDAY, THE 17TH DAY OF JULY 2012/26TH ASHADHA 1934

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RSA.No. 839 of 2012 ()

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AS.85/2010 of SUB COURT, PERUMBAVOOR OS.29/2007 of MUNSIFF COURT, PERUMBAVOOR

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APPELLANT(S)/RESPONDENTS IN THE LOWER APPELLATE COURT AND DEFENDANTS IN THE TRIAL COURT:

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ASHARAF

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S/O.ABOOBACKER, VALLOPPILLY HOUSE, PURAYAR KARA CHENGAMANADU VILLAGE,

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ALUVA TALUK, NOW RESIDING AT VALLOPPILLY HOUSE PONJASSERY.P.O., PIN-683 547.

¶11

BEENA ASHARAF

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W/O.ASHARAF, VALLOPPILLY HOUSE, PURAYAR KARA CHENGAMANADU VILLAGE

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ALUVA TALUK. NOW RESIDING AT VALLOPPILLY HOUSE PONJASSERY.P.O., PIN-683 547.

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BY ADVS.SRI.S.VINOD BHAT

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SRI.BIJOY CHANDRAN SRI.LEGITH T.KOTTAKKAL SRI.RAJESH NAIR

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RESPONDENT(S)/APPELLANTS IN THE LOWER APPELLATE COURT AND PLAINTIFFS IN THE TRIAL COURT:

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ABDUL LATHEEF

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S/O.MUHAMMED, MULLAPPILLY HOUSE, VENGOLA KARA VENGOLA VILLAGE, MUDICKAL.P.O., PIN-683 547.

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FATHIMA

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W/O.ABDUL LATHEEF, MULLAPPILLY HOUSE, VENGOLA KARA VENGOLA VILLAGE, MUDICKAL.P.O., PIN-683 547.

¶21

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17-07-2012, 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.839 of 2012

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Dated this the 17^th day of July, 2012.

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JUDGMENT

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The defendants are in appeal, challenging the judgment and decree passed by the learned Sub Judge, Perumbavoor in A.S.No.85 of 2010 reversing dismissal of O.S.No.29 of 2007 by the learned Munsiff, Perumbavoor.

¶27

Plaint A and B schedules, it is alleged, are paddy fields forming part of Pappanattu Padasekharam. Plaint A schedule situated on the west belong to the respondents/plaintiffs while plaint B schedule situated on its east belongs to the appellants/defendants. According to the respondents, natural flow of water in that padasekharam and plaint A and B schedules is from east to west but, the appellants are trying to construct bunds on the east, west and south of plaint B schedule blocking the natural flow of water. They have a further allegation that the appellants are trying to reclaim the plaint B schedule in violation of the Kerala Land Utilisation Order, 1967 (for short, “the Order”). Hence they sought for a decree for prohibitory injunction against appellants obstructing flow of water and using the plaint B for any other purpose other than cultivation of paddy, etc.

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¶29

RSA No.839/2012

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Appellants contended that there is no paddy cultivation in the plaint A and B schedules since long. It is also not fit for the said purpose since it is marshy land. They claimed that they have obtained Exts. B1 and B5 series licenses from the appropriate authorities for construction of bund for fish farming in the plaint B schedule. They have also obtained permission from the District Collector for conversion of the plaint B schedule.

¶31

Learned Munsiff accepted case of the appellants and dismissed the suit. Respondents challenged that judgment and decree before the learned Sub Judge. Learned Sub Judge observed that appellants are not entitled to make any construction in the plaint B schedule in such a way so as to cause obstruction to the natural flow of water and accordingly reversed judgment and decree of the trial court. Appellants were restrained from making any construction or bund in the plaint B schedule in such a manner so as to cause any obstruction to the natural flow of water from the plaint A schedule and diverting direction of the thodu in the plaint B schedule.

¶32

The learned counsel contends that finding of the first appellate court is not justified in view of Exts.B1, B5 series and B10. It is also contended that there is no possibility of the plaint A schedule being cultivated with paddy in view of the condition in which the plaint A schedule is situated.

¶33

Assuming that there is no cultivation at present, possibility of respondents cultivating the plaint A schedule in future cannot be ruled out. Even if it is not cultivated, respondents can ensure that it is not inundated.

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¶35

RSA No.839/2012

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Appellants cannot block the natural flow of water. Exts.C1 and C1(a) show that the natural flow of water is from east to west. It is seen from the judgment of the first appellate court that what is prohibited is making any construction or bunds in the plaint B schedule in such a manner so as to cause any obstruction to the natural flow of water from the plaint A schedule and from diverting the direction of the thodu in the plaint B schedule. In the nature of the relief granted by the first appellate court I do not find any reason to interfere with the same. No substantial question of law is also involved.

¶37

Second Appeal is dismissed.

¶38

All pending interlocutory applications will stand dismissed.

¶39

THOMAS P.JOSEPH, Judge.

¶40

cks

Asharaf v. Abdul Latheef

Case brief

What is this about?

What the court decided

Asharaf v. Abdul Latheef

Case brief

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What the court decided

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