Dismissed

Kunhimuideenkutty @ Kunhappu v. Thitheemu Umma

Kerala HC22 Nov 2016RSA/833/2004

Case brief

AI extract

What is this about?

Dismissing an appeal against a regular second appeal, the Court upheld the trial court and appellate court findings that a permanent prohibitory injunction suit was rightly dismissed because the alleged water canal did not exist, citing an Advocate Commissioner report.

What did the court decide?

The Regular Second Appeal is dismissed, upholding the dismissal of the suit for permanent prohibitory injunction.

Kunhimuideenkutty @ Kunhappu Vs Thitheemu Umma — 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 K.HARILAL

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TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938

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RSA.No. 833 of 2004 ( )

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AGAINST THE JUDGMENT IN AS 65/1995 of SUB COURT, TIRUR DATED 13-02-2004

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AGAINST THE JUDGMENT IN OS 222/1993 of MUNSIFF COURT, TIRUR

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APPELLANT(S)/1ST APPELLANT/1ST PLAINTIFF:

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KUNHIMUIDEENKUTTY ALIAS KUNHAPPU, S/O.PULLATH ANDRU HAJI, AGED 55 YEARS, PALLIPRAM AMSOM, PERINTHALLUR DESOM, TIRUR TALUK.

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BY ADV. SRI.T.KRISHNAN UNNI (SR.)

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RESPONDENT(S)/2ND APPELLANT/2ND PLAINTIFF/ RESPONDNETS/DEFENDANTS:

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THITHEEMU UMMA, D/O.PULLATH ANDRU HAJI AGED 50 YEARS, KUTTIPPURAM AMSOM DESOM, TIRUR TALUK.

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ALIKUTTY, S/O.KOLUPARAMBIL CHERIYA USSAN HAJI, AGED 52 YEARS, PERINTHALLUR DESOM, PALLIPRAM DESOM, TIRUR TALUK.

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KOLUPARAMBIL CHERIYA USSAN HAJI'S SON MARAKKAR HAJI, AGED 32 YEARS, PERINTHALLUR DESOM, PALLIPRAM DESOM, TIRUR TALUK.

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R,R1 BY ADV. SMT.SHEEJA.P.A.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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R.S.A. No.833 of 2004 G

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Dated this the 22^nd day of November, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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Appellant is the plaintiff in O.S. No.222/1993 on

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the files of the Munsiff's Court, Tirur. The suit was one for permanent prohibitory injunction restraining the defendants

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from filling up of the chal 'Y' shown in the sketch attached to the plaint and making alteration to the nature of that chal and preventing the plaintiff from taking water through that chal. According to the plaintiff, there is a chal on the eastern side of the plaint B schedule properties. Water from the Chekuthankundu Lift Irrigation Scheme is provided to the plaint B schedule property through the aforesaid chal. There is another small chal which is connected to the chal

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on the eastern side, through which water is provided to the

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RSA.833/2004

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: 2 :

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various portions of the plaint B schedule properties for irrigation purpose. The chal on the eastern side is shown as 'X' in the sketch produced along with the plaint. The small chal, through which water is taken to the plaint schedule properties from the chal 'X', is shown as chal 'Y' in the sketch. About 1½ months ago, the 1^st defendant filled up and destroyed a portion of the chal 'Y' and now, they are making preparation to fill up the entire chal. On the above apprehension, the plaintiff has sought for permanent prohibitory injunction restraining the defendants from reclaiming the 'Y' chal.

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The defendants contended that there is no chal as alleged by the plaintiff and the plaintiff is not entitled to take water through the properties belonging to the defendants. According to them, it is impossible to take water from the chal on the eastern side to the properties on the western side through the disputed chal and the chal cannot be used to take water from the canal on the eastern

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RSA.833/2004

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: 3 :

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side to the properties of the plaintiff.

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After appreciating the evidence on record, the

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trial court found that there is no chal in existence on the date of institution of the suit and that, the plaintiffs failed to establish that they have got any legal right to take water through the disputed chal for the purpose of irrigating their properties and accordingly, the suit was dismissed. In appeal, the appellate court also affirmed the findings of the trial court and dismissed the appeal. The legality and correctness of the concurrent findings of the courts below are challenged in this appeal.

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Being a suit for simple prohibitory injunction, the matter in issue involved in the original suit centres around the existence of the chal 'Y' as on the date of the suit. Along with the suit, the appellant has filed an application seeking to appoint an Advocate Commissioner to ascertain the lie of the chal and a Commissioner was appointed on that application. The Advocate Commissioner has submitted

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RSA.833/2004

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: 4 :

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Ext.C3 report and in Ext.C3 report, the Commissioner has stated that the chal 'Y' described in the plaint does not enter into any portion of the properties of the plaintiff and there is no chal connecting the disputed chal and the properties of the plaintiff, enabling flow of water from the disputed chal to their properties. It is also stated that the 'Y' chal shown in the sketch produced by the plaintiff along with the plaint is not correct. Thus, Ext.C2 report shows that the pleadings in the plaint as well as the evidence given by PW1 in this regard are not true. The Commissioner had inspected the properties on the next day of the institution of the suit. Even at that time, the Commissioner had found that the chal was not in existence and it had been completely filled up by the 1^st defendant. The Commissioner has stated that the chal was filled up by taking mud from either side. The remnants of the chal was also not seen at the time of visit of the Commissioner.

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In the absence of evidence to show that there

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RSA.833/2004

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: 5 :

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was a chal abutting to the plaintiff's property, the courts below are justified in rejecting the claim for injunction restraining the defendants from filling of the chal. There is no illegality or impropriety in the findings whereby the courts below rejected the relief sought for in the plaint. I do not find any perversity in the appreciation of evidence. No question of law arises for consideration in this appeal.

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Hence, this Regular Second Appeal is dismissed.

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Sd/- (K. HARILAL, JUDGE)

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aks/24/11

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// True Copy //

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PA to Judge

Kunhimuideenkutty @ Kunhappu v. Thitheemu Umma

Case brief

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Kunhimuideenkutty @ Kunhappu v. Thitheemu Umma

Case brief

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