Viswanathan vs K.K.Sreedharan Nambiar
2021 Latest Caselaw 17846 Ker

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RSA No. 641 of 2014


                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
    WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
                          RSA NO. 641 OF 2014
  AGAINST THE ORDER/JUDGMENT IN AS 13/2013 OF SUB COURT, VADAKARA,
                               KOZHIKODE
   AGAINST THE ORDER/JUDGMENT IN OS 205/2011 OF THE MUNSIFF COURT,
                               VADAKARA.
APPELLANT/S:

             1. VISWANATHAN, S/O.GOPALAN ADIYODI,AGED 49 YEARS,
             BUSINESS, RESIDING AT PANOLI PARAMBA, NEAR PARAVANTHALA
             TEMPLE, VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE
             DISTRICT, KERALA STATE
             2. BROTHER VIJAYABABU @ BABU, AGED 51 YEARS, TEACHER,
             RESIDING AT PANOLI PARAMBA, NEAR PARAVANTHALA TEMPLE,
             VATAKARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE
             DISTRICT, KERALA STATE



             BY ADVS.
             SRI.B.KRISHNAN
             SRI.R.PARTHASARATHY

RESPONDENT/S:

             M.K.SREEDHARAN NAMBIAR, S/O.LATE APPUKURUP,AGED 77,
             PENSIONER, INDIAN RAILWAY, RESIDING AT SREESHYLAM,
             NAMBIAR GARDENS, PALAYAD AMSOM, PATHIYARAKKARA DESOM,
             VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA - 673 101.

             BY ADVS.
             SRI.U.K..DEVIDAS (CAVEATOR)
             SRI.K.K.ANILRAJ
             SRI.U.K.DEVIDAS

      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
10.8.2021,     THE COURT ON 1.9.2021 DELIVERED THE FOLLOWING:
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RSA No. 641 of 2014

                          C.S DIAS,J.
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                    RSA No. 641 of 2014
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         Dated this the 1st day of September, 2021.

                       JUDGMENT

The appellants are the defendants in OS 205/2011 of

the Court of the Munsiff, Vadakara (Trial Court) and the

appellants in AS 13/2013 of the Court of the Subordinate

Judge, Vadakara (Lower Appellate Court). The respondent

in the second appeal was the plaintiff before the Trial

Court and respondent before the Lower Appellate Court.

The parties are referred to as per their status in the

original suit.

2. The plaintiff had sought a decree for permanent

prohibitory injunction to restrain the defendants and their

men (i) from blocking the pipe fixed on the northern and

north-eastern compound wall of the plaint schedule

property for the free flow of rain water to the lane on the

northern side, (ii) from blocking or preventing the flow of

rain water from the plaint schedule property through the

RSA No. 641 of 2014

lane, (iii) from causing any damage to the compound wall

of the plaint schedule property, and (iv) from interfering

with the plaintiff's peaceful possession and enjoyment of

the plaint schedule property.

3. The concise facts in the plaint, which are relevant

of the determination of the appeal, are: the plaintiff is the

owner in possession of the plaint schedule property having

an extent of 18 cents confined within specified boundaries,

which he obtained pursuant to a compromise decree. The

plaint schedule property is lying at a lower level than the

tar road of the Vadakara Municipality. The plaint schedule

property has a slope towards northern side from time

immemorial. During the rainy season, the water that

accumulates in the plaint schedule property gets

discharged through the pipes fitted in the compound wall,

to the narrow unused lane situated between the property

of the plaintiff and the defendants, and lying on the

northern and north-eastern corner of the plaint schedule

property; and from there it flows through the culvert

RSA No. 641 of 2014

beneath the tar road and passing through the side of the

Paravanthala Temple. Rain water from the adjacent

properties also flow through the lane. There are retaining

walls on the eastern and northern boundaries of the plaint

schedule property. The property situated on the northern

side of the plaint schedule property belongs to the first

defendant. Two years prior to the institution of the suit,

the first defendant constructed a house in his property. He

brought soil to the property and widened the lane.

Thereafter, he along with his brother ‒ the second

defendant - widened the lane for using it as an entry to his

property. On 4.12.2011, the plaintiff saw the defendants

blocking the mouth of the pipe in his compound wall.

Although the plaintiff requested the defendants to remove

the blockage, they threatened him and did not remove the

same. The defendants have no manner of right to block the

free flow of water from the plaint schedule property

through the lane. Hence, the plaintiff is entitled to a

decree as prayed for in the plaint.

RSA No. 641 of 2014

4. The defendants filed a written-statement along

with a counterclaim. The defendants contended that there

is no lane separating the plaint schedule property and the

property of the first defendant. It was their case that, the

plaintiff had illegally constructed walls around his

property without any plan or permit. The plaintiff has no

right to accumulate water and discharge it through the

pipes to the lane. The plaintiff is also draining out waste

water through the pipes. Therefore, the defendants prayed

that the suit be dismissed and the counter claim be

decreed by granting the defendants a decree of

mandatory injunction directing the plaintiff to remove the

pipes fixed in the compound wall.

5. The plaintiff filed a written statement refuting the

allegation in the counterclaim. He contended that he had

not drained out waste water through the pipes. The

plaintiff prayed that the counterclaim be dismissed.

6. The plaintiff examined himself and a witness as

PW1 and 2 and marked Exts.A1 to A3 (d) in evidence. The

RSA No. 641 of 2014

defendants did not let in any oral evidence, but marked

Exts.B1 to B3 in evidence. Exts.C1 to C3 (a) commission

reports, plan and photographs were marked as Court

Exhibits through the CW 1 ‒ the Advocate Commissioner.

7. The Trial Court, after analysing the pleadings and

materials on record, decreed the suit, in part, and

dismissed the counterclaim. The operative portion of the

judgment reads as follows:

"In the result, suit is partly decreed and counterclaim is

dismissed as follows:

1. Plaintiff is entitled to permanent prohibitory injunction restraining the defendants or their men from blocking the pipe fixed on the northern and eastern boundary wall of the plaint schedule property with a three inch diameter pipe for the flow of rain water from the plaint schedule property to the lane on its northern side.

2. The above right shall not be interpreted as a right to drain out rain water using with a pipe more than three inch diameter or by using more than one pipe.

3. Plaintiff has no right to drain out any water other than the rain water to the northern side of the plaint schedule property.

4. Defendants are restrained from blocking the flow of rain water from the plaint schedule property through the pipe or from interfere with the peaceful possession and enjoyment of the plaint schedule property.

5. Considering the facts and circumstances of this case no order as to costs.

RSA No. 641 of 2014

8. Aggrieved by the judgment and decree, the

defendants moved the Lower Appellate Court in appeal.

9. The Lower Appellate Court after appreciating the

pleadings and materials on record, confirmed the

judgment and decree of the Trial Court.

10. It is assailing the concurrent findings of the courts

below that the defendants are before this Court in the

Second Appeal, raising the following substantial questions

of law:

(i) Whether the courts below were justified in finding that water could be drained from an artificial device on the compound wall of the plaintiff into the property of the defendants on a lower level when the defendants were bound to receive only water by gravitation more so when considerations of prescriptions did not arise in the suit;

(ii)Whether the courts below were justified in granting a decree to the plaintiff and dismissing the counterclaim when the effect of the decision was to cause nuisance to the defendants by discharge of water into the property held by the first respondent.

11. Heard Sri.B.Krishnan, the learned counsel

appearing for the appellants/defendants and

Sri.K.K.Anilraj, the learned counsel appearing for the

respondent/plaintiff.

RSA No. 641 of 2014

12. The plaintiff had asserted that he has a right to

flow rain water through the unused lane on the northern

side of the plaint schedule property. The defendants had

counter asserted that there is no separate lane and the

whole property belongs to them, therefore, the plaintiff

has no right to discharge water through their property.

13. The crux of the controversy is whether the

disputed lane is in the ownership and/or the possession of

the defendants.

14. The Trial Court and the Lower Appellate Court

after appreciating the pleadings and overwhelming

materials on record, particularly the oral testimonies of

PWs 1, 2 and CW1 and Exts C1 to C3 (a), have

concurrently arrived at a conclusion that there is an

unused lane on the northern portion of the plaint schedule

property separating the properties between the plaintiff

and the defendants, which is contrary to the defence of the

defendants.

RSA No. 641 of 2014

15. Even though the defendants produced Ext.B1

assignment deed dated 29.06.1946, to prove title over

their property, the said document does not show that the

existence of a lane. The defendants have not only failed to

describe the counter claim schedule property, particularly

the lane, but have also failed to get their property

identified. They have also not produced any material to

prove that the lane is in their possession. Even worse, is

that the fact that they have not let in any oral evidence to

substantiate their pleadings, which is fatal to the

defendants. As long as the defendants have failed to

establish their right and possession over the unused lane,

through which the rain water flows, the defendants cannot

aspire for a decree of mandatory injunction or have the

right to obstruct the flow of rain water from the plaintiff's

property to the unused lane.

15. The courts below have also found that, due to the

topography of the plaint schedule property, the rain water

flows from the plaint schedule property, without entering

RSA No. 641 of 2014

the defendants' property, to the lane and from there to the

culvert. It was in such circumstances, that the Trial Court

granted a restrictive injunction in favour of the plaintiff for

the purpose of draining out rain water from his property to

the lane through a three inch diameter pipe, which has

been confirmed by the Lower Appellate Court. I do not

find any error or illegality in the findings of the courts

below, especially because the appellants/defendants have

failed to establish their right and possession over the lane;

therefore, they have no right to obstruct the plaintiff from

discharging rain water to the lane as permitted by the

courts below.

Resultantly, I do not find any question of law involved

in the second appeal, much less any substantial question

of law. The appeal fails and is hence dismissed. The parties

shall bear their respective costs.

Sd/-

sks/26.8.2021                           C.S.DIAS, JUDGE