Dismissed

Ajikumar v. Soman Nair

Kerala HC17 May 2016RSA/1075/2009

Case brief

AI extract

What is this about?

This second appeal challenges a regular second appeal decree granting declaratory relief and injunctions regarding the natural flow of water between properties. The High Court dismissed the appeal, finding the questions moot as the natural right of drainage includes flow through pipes installed to ensure existing natural drainage, and any current obstruction is a factual matter for the trial court

What did the court decide?

No fresh relief; matters discussed regarding preliminary decree are for trial court. Appeal dismissed.

Ajikumar Vs Soman Nair — Property and Title | 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 P.B.SURESH KUMAR

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TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938`

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RSA.No. 1075 of 2009 (C)

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------------------------(AGAINST THE JUDGMENT AND DECREE IN AS.NO. 91/2005 OF DISTRICT COURT, PATHANAMTHITTA)

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(AGAINST THE JUDGMENT AND DECREE IN OS.NO. 231/2003 OF MUNSIFF COURT, PATHANAMTHITTA

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APPELLANT:-(DEFENDANT/RESPONDENT:

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AJIKUMAR, S/O.GOPINADHAN NAIR, THATTARETHU,VALLICODE MURI, VALLICODE VILLAGE.

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BY ADV. SRI.T.M.ABDUL LATIFF

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RESPONDENT(S):-(PLAINTIFFS/APPELLANTS):

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1. SOMAN NAIR, S/O. KRISHNAN NAIR, PEKKUZHIKKARA VEEDU, PRAKKANAM MURI, CHENNEERKARA VILLAGE.

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2. AJITHAKUMARY, W/O.SOMAN NAIR, PEKUZHIKKARA VEEDU, PRAKKANAM MURI,

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CHENNEERKARA VILLAGE.

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BY ADV. SRI.JACOB P.ALEX

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-04-2016 , THE COURT ON 17-05-2016 DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = R.S.A.No.1075 of 2009.

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= = = = = = = = = = =

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Dated this the 17^th day of May, 2016.

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J U D G M E N T

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The defendant in a suit for declaration and injunction, both mandatory and prohibitory, is the appellant in this appeal.

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The plaint schedule item No.1 property belongs

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to the plaintiffs. The plaintiffs are cultivating plantain and tapioca in the plaint schedule item No.1 property. There is a panchayat road on the northern boundary of the plaint schedule item No.1 property. The panchayat road is constructed almost 2 ½ feet above the level of the plaint schedule item No.1 property. The plaint schedule item No.2 property which is lying on the immediate north of the panchayat road belongs to the defendant. The properties on the south of the panchayat road including the plaint schedule item No.1 property lie at a higher level than the properties on the north of the panchayat road including the property of the defendant. Before the formation of the

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RSA.No.1075/2009.

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panchayat road, the water collected in the plaint schedule item No.1 property used to flow naturally to the plaint schedule item No.2 property through a defined water channel and used to reach the water channel on the side of the Kaippattoor – Vallikkode PWD road lying on the east of the plaint schedule item No.2 property. The plaint schedule item No.3 is the water channel in the plaint schedule item No.2 property. When the panchayat road was constructed about 30 years ago in the east-west direction, a pipe having a diameter of 70 cms. was installed beneath the road to ensure the free flow of water from the properties on the south of the panchayat road.

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According to the plaintiffs, the plaint schedule properties are paddy fields and prior to the institution of the suit, the defendant reclaimed the plaint schedule item No.2 property. It is also the case of the plaintiffs that on account of the aforesaid conduct of the defendant, the natural flow of water from the properties on the south of the panchayat road was obstructed and as a result, water began to stagnate in the plaint schedule item No.1 property, causing damage to the cultivation therein.

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RSA.No.1075/2009.

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The suit was filed, in the circumstances, claiming a declaration of the natural right of the plaintiffs for draining out water from plaint schedule item No.1 property through the plaint schedule item No.3 water channel situated in the plaint schedule item No.2 property. A decree of mandatory injunction directing the defendant to restore the plaint schedule item No.2 property as also the plaint schedule item No.3 water channel to its original position and a decree of permanent prohibitory injunction restraining the defendant from causing obstruction to the natural flow of water through the plaint schedule item No.3 water channel were also sought. After the suit, the plaint was amended and a prayer for recovery of Rs.80,000/- towards damages caused to the plaintiffs on account of the conduct of the defendant in obstructing the flow of water was also sought.

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The defendant contested the suit by filing a written statement. According to him, the free flow of water from the plaint schedule item No.1 property was not through the plaint schedule item No.2 property and that there is no water channel in existence in the plaint schedule item No.2 property as

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RSA.No.1075/2009.

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described in the plaint schedule item No.3. As regards the pipe installed beneath the panchayat road between the plaint schedule item No.1 and 2 properties, the contention raised by the defendant was that the same is of a recent origin as a result of the attempt of the plaintiffs to drain the water collected in the plaint schedule item No.1 property through the plaint schedule item No.2 property. In substance, the contention of the defendant in the written statement was that the plaintiffs have no right to drain out the water collected in their property through the property of the defendant.

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The trial court dismissed the suit. The plaintiffs took up the matter in appeal. The appellate court, on an elaborate consideration of the facts and circumstances of the case, found that the plaint schedule item No.1 property is lying on a higher level than the plaint schedule item No.2 property; that the natural flow of water from the plaint schedule item No.1 property is to the plaint schedule item No.2 property through the cement pipe installed beneath the panchayat road separating the said properties; that the said cement pipe is not of a recent

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RSA.No.1075/2009.

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origin; that the permission obtained by the defendant for reclaiming the plaint schedule item No.2 property was subject to the condition that the natural flow of water through the said property shall not be obstructed; that the defendant had reclaimed the plaint schedule item No.2 property violating the condition subject to which he obtained permission to reclaim the land; that the plaint schedule item No.3 water channel is not in existence at present on account of the reclamation of the plaint schedule item No.2 property by the defendant and that on account of the obstruction caused by the defendant to the free flow of water, water got stagnated in the plaint schedule item No.1 property and caused extensive damage to the plaintiffs. The appellate court also found that having regard to the lie of the properties, the plaintiffs have a right to drain water from their property to the plaint schedule item No.2 property through the cement pipe installed beneath the panchayat road. The appellate court further found that the defendant is liable to remove the obstruction caused by him for the free flow of water. The appellate court, however, found that since no convincing evidence

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RSA.No.1075/2009.

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is available as to the original position of the plaint schedule item No.3 water channel, as regards the decree for restoration of the plaint schedule item No.3 water channel sought by the plaintiffs, they are entitled to only a preliminary decree of mandatory injunction directing the defendant to provide a water course from the northern end of the cement pipe so as to reach the canal on the eastern side of the Kaippattoor – Vallikkode PWD road, making it clear that the width, depth and direction of the water course within the plaint schedule item No.2 property will be fixed in the final decree proceedings. The decree passed by the appellate court reads thus:

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(1) A declaration is granted to the plaintiffs/appellants to the effect that they have got right to drain surface water from item No.1 to item No.2 through the cement pipe denoted by A in Ext.C1(b) plan of the commissioner.

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(2) A mandatory injunction is granted in favour of the plaintiffs/appellants directing the defendant to remove the obstruction caused at the northern end of the cement pipe at A in Ext.C1(b) and also at or near the eastern portion of the concrete slab point G adjacent of the eastern road canal so as to provide a free flow of the water from the item No.1.

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(3) Regarding the restoration of item No.3

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RSA.No.1075/2009.

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to its original position the relief sought as such is negatived. But a preliminary decree for mandatory direction is granted in favour of the appellants directing the defendant to provide a water course from the northern end of the cement pipe at point A in Ext.C1(b) so as to reach the eastern road canal subject to the rider the direction of the water course so provided could be without prejudice to the reclamation work already done vide Ext.C1 and C2 as far as possible and with the least inconvenience of the defendant, at the risk and cost of the defendant, failing which the plaintiffs/appellants are at liberty to move for the final decree for providing the water course as mentioned above and to realise the cost there from the defendant and his assets. The width, depth and direction of the water course within item No.2 shall be fixed at final decree.

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(4) A consequential injunction is granted restraining the defendant from causing any obstruction to the flow of the water from item No.1 to item No.2 through the water course made available in item No.2 for the discharge of water in item No.2 to the eastern road canal, as per the direction contained in (3) above.

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(5) The plaintiffs/appellants are granted compensation from the defendant. A preliminary decree is passed granting compensation with effect from 2004 till the date of providing water course within item No.2 to the plaintiffs/appellants from the defendants, the quantification of which shall stand relegated to the final decree.

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(6) For the preliminary decree granted under (3) and (5) above, the plaintiffs/appellants are at liberty to seek application for final decree for

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RSA.No.1075/2009.

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the purpose mentioned therein. The suit is decreed as above with cost through out. For the purpose of (b) above the suit shall stand adjourned sine die.

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The defendant is aggrieved by the said decision of the appellate

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court.

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At the time of admission, the following questions

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were formulated for decision:

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(i) Whether lower appellate court was correct in applying the principles laid down in various decisions regarding easement especially that relating to natural flow of water (natural advantages) when evidence points out that water from item No.1 property was drained using artificial means and in such cases the easement right flowing by way of natural right of drainage was established by the plaintiffs, which was found against by the trial court, enabled by any law to pass a decree in favour of the plaintiffs by the appellate court?

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(ii) Whether the court below was correct in granting a declaratory decree permitting flow of water through item No.2 property belongs to the defendant without establishing the natural right of drainage without bringing on record the flowing of water in a defined channel, when the case set up was to the said effect and in such cases whether the plaintiffs are bound to establish all the ingredients of easement?

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RSA.No.1075/2009.

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Heard the learned counsel for the appellant as

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also the learned counsel for the respondents.

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The learned counsel for the appellant contended that there is no obstruction to the flow of water from the plaint schedule item No.1 property at present and that therefore there is no need at all to restore the plaint schedule item No.3 water channel. Per contra, the learned counsel for the respondents disputed the aforesaid submission made by the learned counsel for the appellant. According to the learned counsel for the respondents, unless and until the water channel existed in the plaint schedule item No.2 is restored, natural flow of water from the plaint schedule item No.1 property cannot be ensured.

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Questions (i) and (ii): As noted above, on an elaborate consideration of the materials on record, the appellate court found that the plaint schedule item No.1 property is lying at a higher level than the plaint schedule item No.2 property and that the natural flow of water from the plaint schedule item No.1 property is to the plaint schedule item No.2 property. True, the appellate court also found that since the panchayat road came

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RSA.No.1075/2009.

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into existence in course of time, the natural flow of water from the plaint schedule item No.1 property to the plaint schedule item No.2 property is through the cement pipe installed beneath the panchayat road. The appellate court also found that since the plaint schedule item No.1 property slopes towards west, the water collected in the said property does not flow to the drain on the side of the Kaippattoor – Vallikkode PWD road otherwise than through the plaint schedule item No.2 property. There cannot be any dispute to the proposition that the natural right of drainage covers only the right to allow rain water falling on land of a naturally higher level to drain off by surface flow along whatever lies the water may find its way to the neighboring land and does not include the right to pass the water which has come artificially thereon. But, merely for the reason that a road was constructed in between the properties by a local authority and while constructing the road a cement pipe was installed to ensure the natural free flow of water existed prior to the construction of the road, one cannot be heard to contend that the flow of water is through artificial means and therefore the right to drain the rain

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RSA.No.1075/2009.

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water falling on the land is not available. In the said view of the matter, the questions formulated for decision do not arise for consideration.

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As regards the contention raised by the learned counsel for the appellant that the natural flow of water is not obstructed at present, I am of the view that the same is a matter to be considered by the trial court while passing the final decree.

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In the result, there is no merit in the second appeal and the same is accordingly dismissed. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Ajikumar v. Soman Nair

Case brief

What is this about?

What did the court decide?

Ajikumar v. Soman Nair

Case brief

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