State officials appealed against a permanent prohibitory injunction decree preventing drainage of water from a newly constructed public road canal into the respondent's property. The Court dismissed the second appeal, finding no question of law or substantial merit.
The second appeal was dismissed; no specific relief was granted in this appellate order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937
RSA.No. 37 of 2016
AS 72/2014 OFSUB COURT, PERUMBAVOOR DATED 31-10-2015 OS 252/2010 OF MUNSIFF COURT, PERUMBAVOOR DATED 20-07-2012
APPELLANT(S)/APPELLANTS/DEFENDANTS:
1. STATE OF KERALA,
2. KERALA STATE TRANSPORT PROJECT,
3. THE ASSISTANT EXECUTIVE ENGINEER, PWD ROADS SUB DIVISION, MUVATTUPUZHA-686661.
4. THE ASSISTANT EXECUTIVE ENGINEER, ROADS SUB DIVISION, PERUMBAVOOR-683542.
BY GOVERNMENT PLEADER SRI.THOMAS JOHN AMBOOKAN
RESPONDENT(S)/RESPONDENTS/PLAINTIFF:
MALATHI, AGED 55 YEARS, W/O.GOPINATHAN NAIR, PARAYATH HOUSE, EDATHALA, ALUVA EAST VILLAGE, ALUVA TALUK-683101.
BY ADV. SRI.P.SATHISAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PJ
P.B.SURESH KUMAR, J.
R.S.A.No.37 of 2016
Dated this the 19th day of January, 2016
JUDGMENT
The State and its officers under the Public Works
Department, who are the defendants in the suit have come up in this second appeal challenging the decision in the suit as confirmed in appeal. The suit was one for injunction.
that the drainage canal constructed by the State from one of the culverts constructed across the M.C. Road during 2004-'05 terminates at the plaint schedule property and consequently, the waste water flowing through the said road lands at the plaint schedule property and thereby causing nuisance to the plaintiff. The relief claimed in the suit, therefore, was a decree of permanent prohibitory injunction
R.S.A.No.37 of 2016
2
restraining the defendants from draining out water and filthy materials to the plaint schedule property. The defendants resisted the suit, contending that the drainage canal has been constructed long ago and that the plaintiff cannot, therefore, raise any objections against the same. The trial court accepted the case of the plaintiff and decreed the suit. Though the defendants took up the matter in appeal, the appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court. Hence this second appeal by the defendants.
the appellants.
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correct. The courts below, on facts, found that the contention of the defendants that the drainage canal referred to by the plaintiff was in existence for so many years is incorrect and that the same came into being only during 2004-'05. The courts below also took note of the fact that the defendants have no case that they have a natural right for flow of water into the plaint schedule property. In the said view of the matter, the impugned decisions are perfectly in order. There is no question of law, much less any substantial question of law involved in the second appeal. The second appeal, in the circumstances, is devoid of merits and the same is, accordingly, dismissed. All the interlocutory applications in the appeal are closed.
P.B.SURESH KUMAR, JUDGE.
smm
3 issues framed by the court
Whether the second appeal by the defendants challenging the decree of permanent prohibitory injunction in a suit for nuisance has any merit or involved legal questions.
Whether the drainage canal constructed by the State during 2004-2005 causing water entry into the respondent's property creates a substantial question of law.
Whether the impugned decisions of lower courts accepting the plaintiff's case and rejecting the defendants' defense are correct in law.
State of Kerala
Kerala State Transport Project
The Assistant Executive Engineer, PWD Roads Sub Division, Muvattupuzha
The Assistant Executive Engineer, Roads Sub Division, Perumbavoor
Malathi
P.B.Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
