Dismissed

Thankamma v. Ramanikuttiyamma

Kerala HC17 Oct 2016RSA/1049/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a regular second appeal challenging findings of lower courts in a suit for permanent prohibitory injunction. The court upheld the judgment that plaintiffs had an easement right to drain water through a brook on defendants' property, rejecting the defense that usage was merely permissive.

What did the court decide?

The regular second appeal was dismissed, upholding the trial court's decree granting injunction and the lower appellate court's decision to dismiss the first appeal.

Thankamma Vs Ramanikuttiyamma — Contract and Commercial Disputes | Kerala HC (2016)

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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 K.HARILAL

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MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938

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RSA.No. 1049 of 2016-G

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AGAINST THE JUDGMENT & DECREE DATED 30-06-2016 IN AS 1/2002 OF THE SUB COURT, ALAPPUZHA.

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AGAINST THE JUDGMENT & DECREE DATED 02-11-2001 IN OS 854/1996 OF THE ADDITIONAL MUNSIFF COURT, CHERTHALA.

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APPELLANTS IN R.S.A./APPELLANT IN A.S. - DEFENDANTS IN SUIT:

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1. THANKAMMA, D/O. DEVAKIAMMA, AGED 79 YEARS, MATTATHIL HOUSE, MARARIKKULAM NORTH VILLAGE, MARARIKKULAM MURI, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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2. DEVARAJAKURUP, S/O.DEVAKIAMMA, AGED 52 YEARS, MATTATHIL HOUSE, MARARIKKULAM NORTH VILLAGE, MARARIKKULAM MURI, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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BY ADVS.SRI. S.V. BALAKRISHNA IYER (SENIOR)

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SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE

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RESPONDENTS IN R.S.A./RESPONDENTS 1,3 TO 5 AND ADDL. 6 TO 8 IN A.S.- PLAINTIFFS 1 AND 3 TO 5 & L.RS. OF PLAINTIFF NO.2 IN SUIT:

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1. RAMANIKUTTYAMMA, D/O.BHARATHIAMMA, AGED 78, VADIYATH, MARARIKKULAM NORTH VILLAGE, MARARIKKULAM, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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......2

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-2-

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2. THANKAMMA, D/O.GOWRI, AGED 81, CHANDRANVELIYIL, MARARIKKULAM NORTH VILLAGE, MARARIKKULAM, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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3. MEENAKSHY,

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D/O.DEVAKI, AGED 65, KOCHUVELIYIL, MARARIKKULAM NORTH VILLAGE, MARARIKULAM, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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4. GOPALAKRISHNA KURUP, S/O.MARTHANDAKURUP, AGED 73, AYYANATTU HOUSE, MARARIKKULAM NORTH VILLAGE, MARARIKULAM, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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5. SREEMATHIYAMMA,

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W/O.RADHAKRISHNAN NAIR, AGED 60, MAPPILAPARAMBIL, MARARIKKULAM NORTH VILLAGE, MARARIKULAM, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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6. SYAMALAMMA, D/O.SUMATHYAMMA, AGED 57, MAPPILAPARAMBIL, MARARIKKULAM NORTH VILLAGE, MARARIKULAM, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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7. PRABHAVATHYAMMA, W/O.VASUDEVAN NAIR, AGED 53, MAPPILAPARAMBIL, MARARIKKULAM NORTH VILLAGE, MARARIKKULAM, CHERTHALA TALUK, ALAPPUZHA, PIN 688 523.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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-----------------------------------------------------R.S.A. No. 1049 of 2016

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-----------------------------------------------------Dated this the 17^th day of October, 2016

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JUDGMENT

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The appellants are the defendants, in O.S. No.854/1996 on the files of the Additional Munsiff's Court, Cherthala, a suit for permanent prohibitory injunction filed by the respondents/plaintiffs, for a decree restraining the appellants from reclaiming the plaint 'B' Schedule brook or obstructing the free flow of water through the same. The parties are referred to as in the Original Suit.

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According to the plaintiffs, the plaint 'A' Schedule property belongs to them and it is a wet land which is being used for agricultural operations. The plaint 'B' Schedule is a brook, which has been used for draining excess water from the 'A' Schedule property

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R.S.A. No. 1049 of 2016 -: 2 :-

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from time immemorial and the brook is running towards North and passes through the defendants' property and goes further North. It is further averred that the same is in existence for more than 80 years and is being used for draining water for agricultural operations in the 'A' Schedule property and the same is necessary for beneficial enjoyment of the 'A' Schedule property. Thus, the plaintiffs have been using the 'B' Schedule brook openly, peacefully and without any interruption or obstruction and as of right as an easement right for a long years and the defendants have no right, to obstruct the same. The apprehension of the plaintiffs is that recently the defendants have made an attempt to reclaim that portion of the 'B' Schedule brook which passes through their property and thereby to reduce the same into their possession.

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The defendants resisted the claim of easement right; but the existence of the brook, as averred by the

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R.S.A. No. 1049 of 2016 -: 3 :-

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plaintiffs, has been admitted; but further contended that water from plaint 'A' Schedule property is being drained through the 'B' Schedule brook with the permission of the defendants. It is also contended that with the permission of the authorities, they have diverted the lie of the brook. Thus, in the written statement itself the defendants have admitted the existence of the 'B' Schedule brook and the usage of the same by the plaintiffs for their agricultural operations.

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On the aforesaid rival pleadings, the 5^th plaintiff was examined as P.W.1 marked Exts.A1 to A2 (e) and examined P.Ws.2 and 3 to substantiate the usage of the 'B' Schedule brook for the agricultural operations in the plaint 'A' Schedule property. On the other hand, the defendants did not enter the witness box so as to adduce oral evidence; but they have produced Exts.B1 to B3. Exts.C1 to C2 and X1 to X3 were marked as Court Exhibits. After considering the

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R.S.A. No. 1049 of 2016 -: 4 :-

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evidence on record, the trial court arrived at a finding that the plaintiffs have succeeded in establishing their

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right to use the 'B' Schedule brook for their agricultural operations in the 'A' Schedule property and they have been enjoying that right from time immemorial openly and without any interruption. But, on the other hand, the defendants failed to adduce evidence to show that the right which was being enjoyed by the plaintiffs was a permissive right. On the above premises, the trial court found that the defendants have failed to discharge the burden of proof on the claim that the right which was being used by the plaintiffs was a permissive one only. Even though the defendants had preferred an appeal, the appellate court also concurred with the above finding and dismissed the appeal. This R.S.A. is filed mainly on the question whether the courts below have concurrently erred in finding that the defendants have failed to discharge the burden of proof on the claim

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R.S.A. No. 1049 of 2016

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-: 5 :-

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that water from the 'A' Schedule property is being drained through the brook with the permission of the defendants.

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Heard Sri. S.V. Balakrishna Iyer, the learned senior counsel appearing for the appellants/ defendants. The learned senior counsel advanced arguments exhaustively highlighting the illegality and impropriety in the findings, whereby the courts below concurrently found that the defendants have failed to discharge the burden of proof.

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The existence of 'B' Schedule brook and the

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fact that water from 'A' Schedule property is being drained through the brook which runs through the defendants' property, are not disputed. It is the case of the defendants that the plaintiffs have been using the brook for draining water from 'A' Schedule property with the permission of the defendants. In short, the existence of brook and the plaintiffs' usage stand admitted. Therefore, the first point to be

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R.S.A. No. 1049 of 2016 -: 6 :-

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considered is, whether the plaintiffs have succeeded in establishing their claim that they have been using or enjoying the 'B' Schedule brook for draining water from the 'A' Schedule property as of right peacefully and uninterruptedly, for the last so many years. To prove the said fact, the 5^th plaintiff was examined as P.W.1 and P.Ws.2 and 3 were also examined. The plaintiffs have adduced evidence in terms of the averments in the plaint and P.W.2 has deposed regarding the usage of 'B' Schedule brook for the past so many years. The Commissioner, who filed Exts.C1 and C2 was examined as P.W.3 and she also deposed the existence of the brook and the flow of water which she had seen at the time of her first visit. The trial court, after analysing the evidence, found that even though they were cross-examined, nothing brought out to discredit their evidence and the plaintiffs have discharged the initial burden successfully.

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On the other hand, even though the

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R.S.A. No. 1049 of 2016 -: 7 :-

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defendants have contended that the plaintiffs have a permissive right only, no evidence had been adduced to substantiate the said contention. This Court is also of the view that when the existence of 'B' Schedule brook and the usage of the same by the plaintiffs for their agricultural operations stand proved, the burden will shift upon the defendants to prove that the said usage was with the permission of the defendants only. In the absence of evidence to prove permissive usage, the courts below are justified in finding that the defendants have failed to discharge the burden of proof on their contention that the brook is being used for draining water with their permission. There is no illegality or impropriety in the aforesaid finding of the courts below.

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The learned counsel for the appellants/ defendants further contended that the defendants have already diverted the lie of the brook and, at present, there is no brook in between their property.

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R.S.A. No. 1049 of 2016 -: 8 :-

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But, going by Exts.X1 to X3, it could be seen that 'B' Schedule brook is a lengthy one which passes through the properties of different land owners. Ext.C1 report further shows that, on the date of suit, there was a brook, as alleged by the plaintiffs and the Commissioner has reported the attempts made by the defendants to reclaim that portion of the brook which passes through the defendants' property only. But, it is true that the Commissioner, in Ext.C2 report, reported that when she visited the property again, after three years, the brook was found reclaimed, in that portion, which lies in between the defendants' property. Needless to say, as far as a suit for prohibitory injunction is concerned, the lie of the property as on the date of suit alone need be considered. Going by the judgment passed by the trial court, it is seen that the plaintiffs have filed I.A. No.1902/1997 for the restoration of the brook and that application stands allowed accordingly. So, it is for

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R.S.A. No. 1049 of 2016

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-: 9 :-

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the plaintiffs to take necessary steps to restore the original position of the brook as on the date of the suit, if they are aggrieved.

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Thus, on an analysis of the concurrent findings

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arrived at by the courts below, in the light of the arguments advanced by the learned senior counsel appearing for the appellants/defendants, this Court is of the view that the courts below have arrived at just and proper findings, in view of the evidence on record and there is no illegality or impropriety in any of the findings, whereby the trial court decreed the suit and the lower appellate court dismissed the appeal. No question of law arises for consideration, in this Regular Second Appeal.

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Therefore, this R.S.A. will stand dismissed.

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Sd/-

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Nan/

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(K. HARILAL, JUDGE) //true copy/

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P.S. to Judge

Thankamma v. Ramanikuttiyamma

Case brief

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Thankamma v. Ramanikuttiyamma

Case brief

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