The High Court of Kerala disproved an appeal against a second order decreeing an injunction suit. The court upheld findings that the plaintiffs had rights to a road and to take water from a tank under a compromise decree, rejecting claims of landslide destruction.
The second appeal was dismissed. Pending interlocutory applications were 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
WEDNESDAY, THE 4TH DAY OF JANUARY 2017/14TH POUSHA, 1938
SA.No. 10 of 1998 (A)
AGAINST THE JUDGMENT & DECREE DATED 20-05-1997 IN AS.305/1996 of DISTRICT COURT, KASARAGOD
AGAINST THE JUDGMENT & DECREE DATED 05-09-1996 IN OS.138/1994 of SUB COURT, KASARAGOD
APPELLANT(S)/RESPONDENT/DEFENDANT:
M.RAMA BHAT, S/O.KRISHNA BHAT, RESIDING AT MULIZALA IN ENMAKAJE VILLAGE, KASARAGOD TALUK, P.O. ADYANADKA.
BY ADVS.SRI.A.P.CHANDRASEKHARAN (SR.) SRI.KODOTH PUSHPARAJAN SRI.M.KRISHNAKUMAR
RESPONDENT(S)/APPELLANT/PLAINTIFF:
DR.M.VISHWANATHA NARAYANA BHAT, S/O.KRISHNA BHAT, UROLOGIST, PROFESSOR AND HEAD OF DEPARTMENT OF UROLOGY, 4, S.B.COLONY, CHEVAYUR, CALICUT-673017, NOW AT A-7 MEDICAL COLLEGE CAMPUS, CALICUT-673008.
BY ADV. SRI.P.R.VENKETESH
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 0401-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OKB
K.HARILAL, J.
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S.A. No. 10 of 1998
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Dated this the 4th day of January, 2017
JUDGMENT
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The appellant is the defendant in O.S.No.138/1994 of the Sub Court, Kasaragod, a suit for perpetual prohibitory injunction, filed by the respondent herein. The reliefs claimed in the aforesaid suit are;
(1) Restraining the defendant, his men and agents by means of a permanent prohibitory injunction from interfering with plaintiff's user of road R in schedule B or from reducing its width or form in any way rendering it useless for the plaintiff.
(2) Restraining the defendant and his men and agents by means of a permanent prohibitory injunction from preventing the plaintiff from leading the water of tank T3 during his term or from diverting the water of the tank in R.S.No.211C for irrigation.
S.A.10/98-A :2:
road R in schedule B of the compromise decree and also to take water from tank T3, which is situated in the defendant's property as per the compromise decree. Thus, the plaintiff has sought for prohibitory injunction on the basis of the right conferred to him under Ext.A1 compromise decree.
S.A.10/98-A :3:
P.W. 1, D.W.1 and Exts.A1, B1 to B7 and C1 to C1(b). After considering the evidence on record, the trial court dismissed the suit on a finding that there was no road as alleged by the plaintiff which would extend upto his property and the tank was destroyed by landslide.
S.A.10/98-A :4:
the parties. After analysing the terms of compromise decree the lower appellate court found that, at any rate, it is evident from Clause 5 of Ext.A1 that on the date of Ext.A1 the parties intended to make a recital regarding the right of road for the plaintiff through R.S.No.21-1A along the road upto R.S.No.21-2B. That apart, it was conceded in Ext.A1 that on the date of Ext.A1 there existed a road through R.S.No.21-1A having a width of 10 Ft. along which motor vehicles and other vehicles could reach R.S. No. 21-2B alloted to the plaintiff. It is evident from the said recital that even if there was no well-defined road, the parties to the compromise intended to make the road as a continuation of the road R. Even according to the defendant, the road was formed after obtaining the ex parte order of injunction in the suit. If that be so, at the time of passing the compromise decree, the road was in existence upto the property allotted to the plaintiff. More over, it could be reasonably presumed that parties to the compromise incorporated Clause 5 assuming that extension of road which was available upto the family
S.A.10/98-A :5:
house as a pucca road and thereafter in a crude form could be made in a pucca form after signing Ext.A1. The aforesaid findings of the courts below are just and proper with respect to the claim over the road and I do not find any kind of perversity in the interpretation given to the terms of Ext.A1 compromise decree.
S.A.10/98-A :6:
sliding. After analysing Clause 7, the lower appellate court found that the plaintiff has right to draw water from tank T3 located in R.S.No.157/5 in Ext.C1(a), as stipulated in Clause 7 of Ext.A1.
This Second Appeal will stand dismissed.
All pending interlocutory applications will stand
closed.
Sd/K.HARILAL,
Judge.
okb
1 issue framed by the court
Whether the lower appellate court was justified in decreeing a suit for perpetual prohibitory injunction regarding road usage and water rights based on the terms of a compromise decree.
M.RAMA BHAT
DR.M.VISHWANATHA NARAYANA BHAT
K. HARILAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
