Allowed

M.Rajan v. a.Ramakrishnan and Others

Kerala HC11 Jul 2019RSA/236/2009

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal filed by the defendant against injunctions granted in favor of plaintiffs seeking to drain rain water through his property. The Court held that no prescriptive easement exists over surface water unless it flows in a stream or is permanently collected, declaring the lower courts' decree erroneous.

What did the court decide?

The decree and judgment of both the trial court and the first appellate court were set aside; the suit dismissed; the appeal allowed without costs.

M.Rajan Vs a.Ramakrishnan and Others — Property and Title | Kerala HC (2019)

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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.SOMARAJAN

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THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941

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RSA.No.236 of 2009

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AGAINST THE JUDGMENT & DECREE IN AS 229/2008 OF I ADDITIONAL DISTRICT COURT, PALAKKAD DATED 20-12-2008

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AGAINST THE JUDGMENT & DECREE IN OS 151/2004 OF PRINCIPAL MUNSIFF COURT, PALAKKAD DATED 14-03-2008

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APPELLANT/APPELLANT/DEFENDANT:

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M.RAJAN, AGED 50 YEARS SON OF LATE MUTHU, SHOP NO. 21/339,, GENERAL MERCHANT, VENNAKARA, NURANI P.O., PALAKKAD, .

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BY ADV. SRI.P.R.VENKETESH

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RESPONDENTS/RESPONDENTS/PLAINTIFF AND SECOND DEFENDANT:

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1 A.RAMAKRISHNAN, AGED 58 YEARS SON OF LATE N.L. PARUSURAMA IYER, RETIRED TSO, 21/442, SRIPADMAM, STREET NO.5, VENNAKARA, NURANI P.O., PALAKKAD DISTRICT.

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2 K. VALSALAKUMARI, AGED 50 YEARS W/O. K. RAJAGOPAL, HEAD NURSE, PALAKKAD DISTRICT HOSPITAL, 21/442, KUNNATH HOUSE, STREET NO.5, VENNAKARA, NURANI P.O., PALAKKAD DIST.

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3 SECRETARY, PALAKKAD MUNICIPALITY PALAKKAD.

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BY ADVS. SRI.T.SETHUMADHAVAN (SR.) FOR R1 & R2 SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.236 of 2009 2

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JUDGMENT

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The first defendant came up with this appeal aggrieved

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by the concurrent finding rendered by both the courts below granting mandatory injunction and prohibitory injunction.

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The following question came up for

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consideration:-

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Whether it is permissible to acquire a prescriptive right of easement over a surface water or rain water unless the same flows in a stream and permanently collected in a pond or tank or otherwise and whether the court below justified in decreeing the suit by granting permanent prohibitory injunction and mandatory injunction as prayed for.

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The suit is one for mandatory injunction and prohibitory injunction. The prohibitory injunction is for not to obstruct the natural flow of water from A schedule through B schedule to the southern drainage and the mandatory injunction is to restore B schedule in its original position. Admittedly, in the instant case no natural source of water involved except rain water. There is no case that the rain water is passing through a definite stream and no such definite stream either mentioned or scheduled in the plaint.

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RSA.No.236 of 2009 3

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The B schedule is a channel passing through the property of the first defendant. The claim of the plaintiffs is that the plaintiffs are entitled to drain water through the above said channel to the southern drainage maintained by the Municipality and same is raised as prescriptive right of the easement.

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Section 17 of the Indian Easements Act, 1882

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deals with rights which cannot be acquired by prescription. There cannot be any easement on any percolating water or any water, which is flowing without a definite stream. Insofar as surface water(rain water) is concerned, no easement can be acquired, if it is not flowing in a stream and not permanently collected in a pool, tank or otherwise. Insofar as surface water(rain water), there should be pleading that it would flow into a stream and are permanently collected in a pond or tank or otherwise. No such case advanced. What is sought is to drain water through property of the first defendant to the southern Municipal drainage. No natural source of water except rain water made mentioned or pleaded anywhere in the plaint. The legal position is very much settled that there cannot be any easement over any surface water/rain water unless the

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RSA.No.236 of 2009 4

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same flows in a stream, permanently collected in a tank or pool or otherwise. What is sought by the plaintiffs are not capable of acquisition by prescriptive right.

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Hence, both the courts below went wrong in

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applying the legal position in its correct perspective. The decree and judgment of both the trial court and the first appellate court are liable to be set aside, I do so by dismissing the suit.

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The appeal is allowed accordingly, but without costs.

SD/-

P.SOMARAJAN

JUDGE

DCS

M.Rajan v. a.Ramakrishnan and Others

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M.Rajan v. a.Ramakrishnan and Others

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