The High Court dismissed a second appeal challenging the decree in a suit for injunction. The court held that no easement right exists to discharge polluted water causing nuisance to servient land. Consequently, the servient owner has the right to obstruct such discharge as excessive user.
Regular Second Appeal dismissed; pending interlocutory applications closed.
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 K.HARILAL
TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938
RSA.No. 75 of 2005 (A)
AGAINST THE JUDGMENT & DECREE DATED 18-08-2004 IN AS.111/2000 of I ADDL. DISTRICT COURT ,PALAKKAD
AGAINST THE JUDGMENT & DECREE DATED 04-02-2000 IN OS.387/1992 of PRL.MUNSIFF COURT, PALAKKAD
APPELLANT(S)/APPELLANTS/PLAINTIFFS::
1. THAJUDEEN, S/O.PICHA RAWTHER.
2. UBAISSA, S/O.THAJUDEEN.
3. ABDUL GAFOOR, S/O.THAJUDEEN.
ALL ARE RESIDING AT PALLITHERUVU, KOPPAM AMSOM, PALAKKAD TALUK.
BY ADVS.SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.K.R. SREEKANTH SMT.G.GEETHISHA
RESPONDENT(S)/RESPONDENTS/DEFENDANTS::
1. MOHAMMED HANEEFA, S/O.ABDUL AZEEZ.
2. HAKKEEM, S/O.MOHAMMED HANEEFA, RESPONDENTS 1 AND 2 ARE RESIDING AT PARAKUNNAM KOPPAM AMSOM, PALAKKAD TALUK.
3. HIDAYATHULLA KHAN, S/O.ARIFULLAKHAN, RESIDING AT B.O.C.ROAD, KOPPAM AMSOM, PALAKKAD TALUK.
R1 TO R3 BY ADV. SRI.K.RAMAKUMAR (SR.)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OKB
C.R.
K.HARILAL, J.
R.S.A. No.75 of 2005
Dated this the 13th day of December, 2016
JUDGMENT
~ ~ ~ ~ ~
The appellants are the plaintiffs in
O.S.No.387/1992 on the files of the Principal Munsiff's Court, Palakkad. The aforesaid suit was one for prohibitory injunction restraining the defendants from closing the plaint 'B' schedule canal used for draining out water from the plaint 'A' schedule property. According to the plaintiffs, they are conducting an industrial unit in 'A' schedule property. The defendants' property is situated on the east of 'A' schedule, which lies on a lower level than plaint 'A' schedule property. The slope of 'A' schedule property is from south to north and from west to east. Rain water and water from bathroom and kitchen from
plaint A schedule property flows through the 'B' schedule canal situated in the defendants' property
RSA.75/05 :2:
and reaches at the municipal drain on the east. Apart from 'B' schedule canal, there is no other way from 'A' schedule property to discharge water. The plaintiffs and their predecessors are flowing rain water and sullage water through 'B' schedule canal for decades, openly, uninterruptedly and feasibly and nobody has any right to obstruct the same. Now the defendants are trying to close 'B' schedule canal. If the canal is closed, the legal right of the plaintiffs will be infringed as the plaintiffs have acquired Easement right by prescription to drain out rain water and dirty water through 'B' schedule canal. Hence the suit was filed seeking an injunction, as referred above.
contended that the plaintiffs have caused alteration of 'A' schedule property by making additional constructions. There are two sheds in the property of the defendants. To drain out water from the eaves of the said sheds, the defendants' father had constructed a canal on the western side of the sheds.
RSA.75/05 :3:
The canal belongs to the defendants. It is not correct to say that the defendants' property lies on a lower level than 'A' schedule property. On the other hand, according to the defendants, the plaintiffs' property is lying at a lower level than the defendants' property. The plaintiffs have never drained out any water to the defendants' property. They have no right of Easement over 'B' schedule canal. After purchasing the property by the plaintiffs when their employees began to reside there, all sorts of sullage water containing faecal matter is being drained out through 'B' schedule canal causing nuisance to the defendants and the plaintiffs have no right to drain out sullage water through 'B' schedule canal.
RSA.75/05 :4:
filthy water through 'B' schedule canal. Feeling aggrieved, the plaintiffs filed Appeal Suit No.111/2000 before the I Additional District Court, Palakkad and the defendants filed cross-appeal. After reappreciating the evidence on record, the appellate court dismissed the suit and allowed the crossappeal. The legality and correctness of the findings, whereby the courts below took divergent views, are challenged in this Regular Second Appeal.
and the learned counsel appearing for the respondents.
RSA.75/05 :5:
defendants' property to the municipal drain. According to them, they have no access other than 'B' schedule canal to discharge dirty water to the municipal drainage.
RSA.75/05 :6:
definition, acquisition by prescription, incidents, disturbance and extinction of Easement covered under
Chapters 1, 3, 4 and 5 of the Indian Easements Act, 1882 (for short, “the Act”). It is well discernible from the provisions under these Chapters that the right of Easement is neither unbridled nor unfettered. It is subject to Sections 7, 17, 21, 22, 23, 31, etc. of the Act. The Illustrations and the Explanations (f), (g), (h), (i) and (j) to Section 7 of the Act show that there is no right of Easement to discharge the dirty water from the drain of one's house or property to another person's land and it would cause nuisance or pollution on another person's land. Put it differently, an Easement of that kind is not contemplated under Section 7 of the Act. As per Section 21 of the Act, an Easement must not be used for any purpose not connected with the enjoyment of the dominant heritage and as per Section 23, subject to the provisions of Section 22, the dominant owner may, from time to time, alter the mode and place of
RSA.75/05 :7:
enjoying the Easement, provided that he does not thereby impose any additional burden on the servient heritage. As per Section 31 of the Act, in the case of excessive user of an Easement, the servient owner may, without prejudice to any other remedies to which he may be entitled, obstruct the user, but only on the servient heritage; provided that such user cannot be obstructed when the obstruction would interfere with the lawful enjoyment of the Easement. Further, according to Section 17 of the Act, a right which would tend to total destruction of the subject of the right, or the property on which, if the acquisitions were made, liability would be imposed, cannot be acquired by prescription.
RSA.75/05 :8:
specifically prescribes that in case of excessive user of an Easement, the servient owner may, without prejudice to any other remedies to which he is entitled, obstruct the user; but only on the servient heritage. This Court is of the opinion that the discharge of polluted water causing nuisance or pollution to the servient heritage is an excessive user of an Easement and in that case the servient owner has the right to obstruct the same. In the above analysis, the lower appellate court is justified in dismissing the Suit and allowing the Cross-Appeal.
This Regular Second Appeal will stand dismissed. All pending Interlocutory Applications will also stand closed.
K.HARILAL, Judge.
okb
3 issues framed by the court
Whether the dominant owner can acquire an Easement right by prescription to discharge polluted water causing nuisance or pollution through a canal on servient land?
Whether there is a right of Easement to discharge polluted water from one's house or property to a canal passing through another person's land?
Can the servient owner obstruct the discharge of excessive user of an Easement causing nuisance to the servient heritage?
6 provisions across 1 enactments
Thajudeen, S/O. Picha Rawther
Ubaissa, S/O. Thajudeen
Abdul Gafoor, S/O. Thajudeen
Mohammed Hanea
Hakkeem, S/O. Mohammed Hanea
Hidayathulla Khan, S/O. Arifulakhan
K. Harilal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
