Prasannan, (Died) (Lhr Recorded) vs Sivadasan
2022 Latest Caselaw 9835 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                     THE HONOURABLE MRS. JUSTICE M.R.ANITHA

           WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944

                               RSA NO. 47 OF 2016

AGAINST THE JUDGMENT AND DECREE DATED 18.02.2015 IN A.S. NO.29/2012 ON THE FILE

                 THE SUBORDINATE JUDGE'S COURT, KARUNAGAPPALLY

AGAINST THE JUDGMENT AND DECREE DATED 21.6.2012 IN O.S. NO.39/09 ON THE FILE OF

                         MUNSIFF'S COURT, SASTHAMCOTTA

APPELLANTS/RESPONDENTS 1 & 2/PLAINTIFFS:

     1       PRASANNAN, (DIED) (LHR RECORDED)
             AGED 40 YEARS
             S/O.SADANANDAN, RESIDING AT KANNANKARA VEEDU, NADUVILE MURI, WEST
             KALLADA VILLAGE, WEST KALLADA PO, KOLLAM DISTRICT.
             (2ND APPELLANT IS RECORDED AS THE SOLE LEGAL HEIR OF THE DECEASED
             1ST APPELLANT AS PER ORDER DATED 12.10.2021 IN MEMO DATED
             29.09.2021.)
     2       USHA, AGED 38 YEARS
             W/O.PRASANNAN, RESIDING AT KANNANKARA VEEDU, NADUVILE MURI, WEST
             KALLADA VILLAGE, WEST KALLADA PO, KOLLAM DISTRICT
             BY ADVS.
             (PARTY)
             ARUN BABU

RESPONDENTS/APPELLANTS 1 TO 3/RESPONDENT NO.3/DEFENDANTS 1 TO 4:

     1       SIVADASAN @ SIVADASAN ACHARI, AGED 58 YEARS
             S/O.SANKU ACHARY, NANADANA BHAVANAM, HOUSE NO.439/VIII, WEST
             KALLADA PANCHAYATH, AITHOTTUVA MURI, WEST KALLADA PO,
             KOLLAM, PIN 691500
     2       BHAVANIMAYAN, AGED 35 YEARS
             S/O.SIVADASAN ACHARI, NANADANA BHAVANAM, HOUSE NO.439/VIII, WEST
             KALLADA PANCHAYATH, AITHOTTUVA MURI, WEST KALLADA PO,
             KOLLAM, PIN 691500
     3       BHAVANANTHAN
             AGED 31 YEARS
             S/O.SIVADASAN ACHARI, NANADANA BHAVANAM, HOUSE NO.439/VIII, WEST
             KALLADA PANCHAYATH, AITHOTTUVA MURI, WEST KALLADA PO,
             KOLLAM, PIN 691500
     4       ASSISTANT ENGINEER, KERALA WATER AUTHORITY, SASTHAMKOTTA,
             SASTHAMKOTTA PO, KOLLAM, PIN 690521
             BY ADVS.
             SRI.C.HARIKUMAR(CAVEATOR FOR R1 TO R3)
             SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY - FOR R4
             SRI.MANOJ RAJAGOPAL - FOR R1 TO R3
             SRI.MANU RAMACHANDRAN - FOR R1 TO R3
             P.M.JOHNY, SC, KERALA WATER AUTHORITY -FOR R4

      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON 31.8.2022 DELIVERED THE FOLLOWING:
 RSA No.47 of 2016
                                        2




                                  JUDGMENT

Dated this the 31st day of August, 2022

This Regular Second Appeal has been directed

against the judgment and decree in A.S.No.29/2012 on the file

of Subordinate Judge's Court, Karunagappally which arose out

of judgment and decree in O.S.No.39/2009 on the file of

Munsiff's Court, Sasthamcotta.

2. The suit is one for permanent prohibitory injunction.

Plaintiffs are the appellants. (Parties would hereinafter be

referred as per their status before the trial court).

3. Plaintiffs have got right of easement for ingress and

egress through the plaint schedule pathway which is running

through the property of defendants as per compromise decree

in O.S.No.107/2000 of the Munsiff's Court, Sasthamcotta.

During the pendency of the proceedings, plaintiffs in O.S.

No.107/2000 transferred the property to the defendants in the

suit and hence defendants are bound by the decree in

O.S.No.107/2000. Plaintiffs intend to draw pipeline through the

pathway provided in the compromise decree in RSA No.47 of 2016

O.S.No.107/2000 since he has no other source of water for

satisfying his basic needs. But defendants obstructed him from

drawing pipeline through the pathway. Hence the plaintiffs filed

the suit for restraining the defendants 1 to 3 from causing any

obstruction in drawing the pipeline through the pathway

provided in the decree. Fourth defendant is the Kerala Water

Authority.

4. Defendants 1 and 3 filed written statement

contending that the suit is not maintainable. The defendants

have no knowledge about the decree in O.S.No.107/2000.

Third defendant purchased 4 ares 72 sq. mtrs of landed

property and thereafter he is in possession and enjoyment of

the said property. No pathway is going through the property of

the defendants and the plaintiffs are going through their

property with their consent for ingress and egress. It is also

contended that plaintiffs have no right to draw any pipeline

through the pathway.

5. Defendants 2 and 4 remained ex parte. PW1

examined and Ext.A1 marked from the side of the plaintiffs.

Third defendant was examined as DW1.

6. Trial court on evaluating the facts and RSA No.47 of 2016

circumstances and evidence found that the right of plaintiffs

over the plaint schedule property has been proved through

Ext.A1 and the drawing of pipeline for getting water to the

plaintiffs for satisfying their basic needs will not tend to the

total destruction to the plaint schedule pathway and that

cannot be considered as a construction which is prevented in

Ext.A1. The trial court also taken notice of the fact that an

electric line has been drawn through the plaint schedule

pathway to the house of the plaintiffs. Hence it was found that

the defendants have no right to obstruct the drawing of the

pipeline through the plaint schedule pathway for which they

have got easement by prescription as per Ext.A1 decree and

accordingly the suit was decreed.

7. Against which, defendants filed appeal and the first

appellate court by the impugned judgment reversed the

judgment and decree passed by the learned Munsiff and found

that the plaintiffs have no legal right to draw water connection

through plaint schedule property and consequently are not

entitled to get any injunction as prayed for and accordingly the

suit was dismissed. Aggrieved by the same, appellants/

plaintiffs approaches this court in second appeal. RSA No.47 of 2016

8. At the time of admission this court formulated the

following substantial questions of law:

(1) When right over a pathway is granted by way of compromise decree and the plaintiff has been using the pathway as per the compromise, is it proper on the part of the respondents to obstruct drawing of water connection through the aforesaid pathway for the use of the plaintiffs?

(2) When the factum of existence of pathway over the plaint schedule property is specified by virtue of a compromise decree was the first appellate court right in reversing the decree of the trial court in holding that the issue is restricted to passage alone?

9. Lower court records were called for and perused.

Both sides were heard.

10. According to the learned counsel for the appellant

as per Ext.A1 compromise an easement by grant over plaint

schedule pathway has been given to the plaintiff by the

predecessor in interest of the defendant. Hence, he has every

right to do all reasonable acts necessary for the beneficial RSA No.47 of 2016

enjoyment of his dominant heritage which includes according

to him digging the plaint schedule pathway for drawing a pipe

line also. So, according to him the finding of the 1 st Appellate

Court that his right is only to use the plaint schedule property

as passage alone is illegal and unsustainable. He would also

contend that the water is the basic need of a human being and

for that he has every right to approach the Civil Court for his

redressal. It is also contended that the right to draw water is a

fundamental right and when such fundamental right is violated

it can be enforced through a civil court. Hence, finding of the

1st Appellate Court that fundamental right cannot be enforced

through a civil court and only a civil right can be enforced etc.

are not sustainable in law.

11. The learned counsel also placed reliance on Section

4 and 17 of the Indian Easements Act (Act No.V of 1882) (in

short the 'Act'), quoted by the learned Munsiff. Further the

learned counsel placed reliance on Section 38 and Section 53

of the Kerala Water Supply and Sewerage Act, 1986 to support

his contention. The learned counsel also placed reliance on

Bhargavi Amma v. Abraham [2021 (6) KHC 388 : 2021

(5) KLT online 1178].

RSA No.47 of 2016

12. The learned counsel for the respondent on the other

hand would contend that the entire plaint averments is based

on Ext.A1 the compromise decree by which right of easement

by grant has been given to the plaintiff over the plaint schedule

path way. According to him as per Ext.A1 only one meter width

way for passage alone has been granted and as per condition

No.2 in Ext.A1 there is a specific stipulation that without the

knowledge of the predecessor of the defendant, the plaintiff

should not do any construction work or to use excess width of

way than agreed. So, according to him since the grant has

been given with respect to specific width of way with an

express condition not to use the way exceeding the width

agreed and prohibiting from making any construction in the

way without the knowledge of the predecessor of the

defendant, plaintiff has no manner of right to draw the water

line through plaint schedule pathway.

13. He would also contend that before the trial court as

well as the 1st Appellate Court, no reliance was placed on any

of the provisions of Kerala Water Supply and Sewerage Act,

1986 and it is for the first time such an argument is raised in

the second appeal.

RSA No.47 of 2016

14. First of all the argument of the learned counsel

basing on Kerala Water Supply and Sewerage Act, 1986 can be

dealt with. Section 38 of the said Act is relevant in this context

to be extracted which reads thus:

Supply of Water by the Authority-

1) The authority shall on an application made to it by the owner of any premises or by the occupier with the consent in writing of the owner thereof, grant supply of water for domestic purposes on such terms and conditions as may be provided by regulations.

2) The authority may on application made in that behalf, grant supply of water for any purpose other than domestic purposes.

3) The supply of water for domestic or other purposes shall be subject to such terms and conditions as may be provided by regulations.

4) Notwithstanding anything to the contrary contained in the regulations referred to in sub- section (5), the Authority may supply water to the Government or any local authority or other statutory corporation or to any educational or charitable institution on such terms as to payment and as to the period and conditions of supply as may be agreed upon.

5) The ownership and control over the pipe line up to the meter point shall be vest with the Authority even though the cost of any connection RSA No.47 of 2016

or part thereof has been borne by the applicant.

15. According to the learned counsel, as soon as an

application has been made to the authority by the owner of

any premises or by the occupier, the authority has to grant

supply of water on such terms and conditions. Since, plaintiff is

the owner of the premises to which the water line is to be

drawn he is not bound to obtain the consent of the owner and

authority cannot insist for consent of the owner of the pathway

for drawing the line to his house.

16. He would also drew my attention to the definition of

occupier in Section 2(16) of the Act which reads thus:

"occupier", in relation to any premises, includes-

(a) any person for the time being paying or liable to pay rent or any portion thereof to the owner in respect of those premises;

(b) the owner who is in occupation of the premises'

(c) a tenant of the premises who is exempt from payment of rent;

(d) a licensee who is in occupation of the premises; and

(e) any person who is liable to pay damages to the owner in respect of use and occupation of the premises.

RSA No.47 of 2016

Plaintiff being the owner of the house to which water

connection is sought for, he need not obtain consent of the

owner since he is not a mere occupier, it is contended.

17. Section 53 which comes under Chapter VIII dealing

with General Provisions with respect to power of entry for

survey and inspection of the officer of the authority and for

convenience, it reads as follows:

(53) Power of entry, survey, inspection, etc.--

(1) Any Officer of the Authority authorised by it in that behalf may with or without assistance of workmen enter into or upon any premises in order--

(a) to make any inspection, survey, measurement or enquiry ;

(b) to take level ;

(c) to dig or bore into the sub-soil ;

(d) to set out boundaries and intended lines of work;

(e) to mark such levels, boundaries and lines by placing marks and cutting trenches ; or

(f) to do any other thing necessary for the purpose of this Act or any rule or regulation made thereunder.

RSA No.47 of 2016

Provided that--

(i) no such entry into a building shall be made betweensunset and sunrises;

                               (ii)    no dwelling house or place shall be so
                               entered except          with the consent of the

occupier thereof or without giving the occupier at least twenty four hours notice of the intention to make such entry;

(iii) reasonable opportunity and facility shall be allowed to the women occupying any part of a dwelling house to withdraw; and

(iv) due regard shall, so far as feasible, be paid to the social and religious customs and usages of the occupants of the premises entered into.

(2) Whenever any officer of the Authority authorized under subsection (1) enters into or upon any premises in pursuance of that sub section, he shall, at the time of such entry pay or tender payment for the damage, if any, to be caused by any act as aforesaid and in case of dispute as to the sufficiency of the amount of compensation such dispute shall be referred to the Chairman whose decision thereon shall be final.

(3) When any person is entitled to enter into or open any premises in exercise of the powers under sub-section (1) he may also enter in similar manner into or upon any adjoining premises for any work authorized by or under RSA No.47 of 2016

this Act, or for the purpose of depositing therein any soil, stone or other materials or for obtaining access to such work or for any other purposes connected with the execution of the same.

(4) It shall be lawful for any officer authorized in this behalf by the Authority to make any entry into any place to open or cause to be opened any door, gate or other barrier,--

(a) If he considers the opening thereof necessary for thepurpose of such entry, and

(b) If the owner or occupier is absent, or beingpresent refuses to open such door, gate or barrier.

(5) Before making any entry into any such place or opening or causing to be opened any such door, gate or other barrier under sub-section (4), the person authorized in this behalf shall call upon two or more persons of the locality in which the place to be entered into is situated to witness the enter or opening and may issue an order in writing to them or any of them so to do.

(6) The officer so authorized shall in exercise of any power conferred by sub-section (4) do as little damage as may be possible and compensation for such damage shall be payable by the Authority to the owner or occupier of such premises or to both and in the case of any dispute as to the sufficiency of the amount of compensation, the RSA No.47 of 2016

dispute shall be referred to the chairman, whose decision thereon shall be final.

18. So, according to the learned counsel as per Section

53 the authorized officer has powers to enter into any premises

on getting an application for doing any other thing necessary

for the purpose of this act or any rule or regulation. Hence,

once an application is received for water connection the

authorised officer has powers to enter into any premises for

doing any act for the purpose of drawing water connection.

19. The learned counsel for the respondent on the other

hand would contend that chapter VIII deals with general

provisions with respect to power of entry for the purpose to

survey, inspection etc. and it has no application with respect to

supply of water for domestic purposes. The learned counsel for

the respondent also would contend that the premises provided

under Sub Section 1 of Section 38 is the property through

which the line is to be drawn.

20. On evaluating Chapters VI and VIII it could be seen

that chapter VI deals with water supply including supply of

water for domestic purposes and supply of water to flats and

multistoried buildings etc. and it has no connection with RSA No.47 of 2016

general provisions coming under Chapter VIII which deals

with the general provisions with respect to the power of

entry, inspection, survey etc. of any authorised officer with or

without assistance of workmen to enter into the premises. If

the argument of the learned counsel for the appellant is

accepted any authorized officer can enter anybodies property

for drawing pipe line and that does not appear to be the

intention of the legislature and general provisions coming

under Chapter VIII provides the powers of the authorised

officer and his workmen to enter into any premises for the

purpose of inspection, survey measurement enquiry etc.

21. So, on evaluating the rival contentions, I am of the

considered view that what Section 38 provides is that on

getting an application for domestic connection for water supply

for drawing the line if it is not to the owner of the property and

is the occupier, he should get consent in writing of the owner.

Word "premises"has been defined as in Section 2 (xviii) in

Kerala Water Supply and Sewerage Act, 1986 as follows:

(xviii) "premises" means any land or building and includes -

(a) the garden, land and outhouses, if any, appertaining to a building or part of RSA No.47 of 2016

a building; and

(b) any fittings affixed to a building or part of a building for more beneficial enjoyment thereof;

22. Obviously the land through which line to be drawn

also must be of the owner or the occupier. Otherwise, it will

create an anomalous situation since a person who is residing in

a remote area can also simply apply for water connection and

authority concerned will have to dig the property of strangers

for drawing the water line to the property of the person who

applied for domestic connections. So provisions of the Act has

no application with respect to the right of easement of a party

to draw the pipe line.

23. The learned counsel for the plaintiffs also relied on

Bhargavi Amma v. Abraham [2021 (6) KHC 388] wherein

it has been held that a licence given by the owner of well to

immediate neighbour to fix up a water pump inside the well for

drawing drinking water is not revocable since when the

defendants had consented plaintiffs to draw drinking water for

his daily use to his house and permitted the plaintiffs to fix a

water pump inside the well with electricity connection from

defendants' house, right conferred on plaintiffs is one of a RSA No.47 of 2016

basic human right and that cannot be revoked. It is also held

that when defendants permitted to draw water from their well

knowing that plaintiffs have no other source of drinking water

it is an extreme case of acquiescence or estoppel by conduct

from which a licence may be implied.

24. Hence the question for determination revolves on

the right of easement by grant provided to plaintiff in Exhibit

A1. Hence decision afore has no application in the case on

hand because plaintiff is claiming protection under Exhibit A1

as an easement by grant. It is not a case of consent and

acquiescence or licence.

25. Learned counsel for the defendants would contend

that since an easement of grant is a matter of contract, parties

to the contract are bound by the terms by which grant has

been created, and, if the user of the grant is restricted or

limited through conditions in the contract, parties will be bound

by those conditions.

26. So, according to defendant, since as per Ext.A1

right has been given to the plaintiffs over plaint schedule

property only for passage and there is also an express

condition not to make any constructions without the knowledge RSA No.47 of 2016

of the plaintiff and to use the way in excess width, there is

express bar for drawing the pipe line by digging the way which

has been provided only for passage. It is not in dispute that

drawing the pipeline by digging will amount to 'construction'.

Whether that can be permitted as per the recitals in Exhibit A1

is the crucial issue. For that law of easement, the extent of

easements and how for a dominant owner can increase the

easement granted etc. would arise for consideration.

27. The Indian Easement Act, 1882 does not contain a

term as 'easement by grant'. Chapter II of the Indian

Easements Act, 1882 (in short, the Act) deals with the

imposition, acquisition and transfer of easements. Section 8

provides that an easement may be imposed by anyone in the

circumstances, and to the extent, in and to which he may

transfer his interest in the heritage on which the liability is to

be imposed. So the easement by grant derives from Section 8

by which an easement can be imposed and can be created by

an express grant or reservation. The owner of a servient

tenement can by his unilateral act can impose an easement on

his property even though the owners of the dominant

tenement are not parties to such a transaction. RSA No.47 of 2016

28. Section 22 of the of the Easements Act provides

that the dominant owner must exercise his right in the mode

which is least onerous to the servient owner; and when the

exercise of an easement can without detriment to the

dominant owner be confined to a determinate part of the

servient heritage, such exercise shall, at the request of the

servient owner, be so confined. Section 24 of the Act provides

that the dominant owner is entitled, as against servient owner,

to do all acts necessary to secure the full enjoyment of the

easement; but such acts must be done at such time and in

such manner as, without detriment to the dominant owner, to

cause the servient owner as little inconvenience as possible;

and the dominant owner must repair, as far as practicable, the

damage caused by the act to the servient heritage. It further

provides that accessory rights are the rights to do acts

necessary to secure the full enjoyment of an easement.

29. Section 28 of the Act deals with the extent of

easements and mode of their enjoyment, the relevant portion

reads as follows:

28. Extent of easements:- With respect to the extent of easements and the mode of their enjoyment, the following RSA No.47 of 2016

provisions shall take effect:--

Easement of necessity.--An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed.

Other easements.--The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the rights were imposed or acquired.

In the absence of evidence as to such intention and purpose:

(a) Right of way.-- A right of way of any one kind does not include a right of way of any other kind;

(b) Right to light or air acquired by grant.--The extent of a right to the passage of light or air to a certain window, door or other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-

testamentary instrument was made;

xxxxx

30. Section 29 of the Act is also relevant to be

extracted, which reads thus:

RSA No.47 of 2016

29. Increase of easement.--The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement.

Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the easement is proportionately increased, and if the dominant heritage is diminished by dilluvion, the easement is proportionately diminished.

Save as aforesaid, no easement is affected by any change in the extent of the dominant or the servient heritage.

31. So, from the above, it could be gathered that there

is express bar under Section 29 of the Act to the dominant

owner to alter or add to the dominant heritage and increase an

easement. Second paragraph of Section 29 further make it

clear that where an easement has been granted or bequeathed

and its extent is proportionate to the extent of the dominant

heritage, if the dominant heritage is increased by alluvion, the

easement is proportionately increased, and if the dominant

heritage is diminished by dilluvion, the easement is RSA No.47 of 2016

proportionately diminished. Except as otherwise, no easement

is affected by any change in the extent of the dominant or the

servient heritage.

32. Here, the present case will not come under second

paragraph of Section 29 since the plaintiffs have no case of

increase of dominant heritage by alluvion so as to

proportionately increase the easement provided. Section 22 of

the Act expressly provides that the dominant owner should

exercise his right in the mode which is least onerous to the

servient owner; and it also provides that when the exercise of

an easement can without detriment to the dominant owner be

confined to a determinate part of the servient heritage, at the

request of the servient owner, the dominant owner is bound to

confine the easement to a determinate part also. So Section

22 of the Act cautions the dominant owner to enjoy the

easement which is least onerous to the servient owner.

33. Section 28 of the Act also expressly provides that all

easements other than easement of necessity and the mode of

its enjoyment must be fixed with reference to the probable

intention of the parties and the purpose for which right was

imposed or acquired. It also points that in the absence of any RSA No.47 of 2016

evidence as to such intention and purpose in the case of right

of way, a right of way of any kind does not include of right of

way of any other kind.

34. Section 24 though entitles a dominant owner to do

all acts necessary to secure the full enjoyment of the easement

but such acts must be done at such time and in such manner

without detriment to the dominant owner or to cause the

servient owner as little inconvenience as possible and the

dominant owner must repair, as far as practicable the damage

(if any) caused by the act to the servient heritage.

Illustration (a) to Section 24 is relevant in this

context to be extracted, which reads thus:

"(a) A has an easement to lay pipes in B's land to convey water to A's cistern. A may enter and dig the land in order to mend the pipes, but he must restore the surface to its original state."

35. So it would indicate that in order to lay pipes by A

through the property of B, there should have right of

easement. Then only the law enables him to enter the

property of A and dig the land in order to mend the pipes and

in such circumstances he is bound to restore the surface to its RSA No.47 of 2016

original state also.

36. So a conjoined reading of the above provisions

would leave no room for doubt that in order to lay pipes over

another's land the dominant owner should have a right of

easement over the latter's property.

37. In the present case, plaintiffs relies on Ext.A1, the

compromise, as the easement by grant given by the

predecessor of the defendants for passage and the contention

of the plaintiffs is that once plaint schedule way has been

granted as passage to the plaintiffs property, he is entitled to

draw a pipeline through the passage so granted by the

predecessor of the defendants. But Section 28 of the Act

specifically provides that extent of easements and the mode of

its enjoyment is fixed with reference to the probable intention

of the parties, and the purpose for which the right was

imposed or acquired. It also expressly provides that in the

absence of evidence as to such intention and purpose a right of

way of any kind does not include a right of way of any other

kind.

38. So Ext.A1 would make the intention of the parties

very clear that a 1 mtr. Width pathway has been granted to the RSA No.47 of 2016

plaintiffs by the defendants' predecessor for ingress and egress

and it is aslo specifically provided that without the knowledge

of the plaintiffs the defendants (who is the plaintiffs herein)

cannot do any construction activities or use the way in excess

of the width that has been granted. So the intention of the

parties at the time of execution of Ext.A1 is very explicit that it

has been provided only for ingress and egress to the plaintiffs

property and there is also a prohibition for making any

construction or using in width excess than that is provided

without the knowledge of the plaintiffs. So as per Section 28 of

the Act the right of way granted for passage in Ext.A1 to the

plaintiffs by the defendants' predecessor is only for passage

and not for any other kind. The drawing of pipeline through the

passage will definitely come within the meaning of "any other

kind" as provided under clause (a) of Section 28.

39. Illustration (a) to Section 24 also would make it

clear that in order to lay pipeline through the another's land

there should have a right of easement. It would further make

it clear that only if such an easement to lay pipes through

another's land is in existence the dominant owner can enter

and dig the land in order to mend the pipes. RSA No.47 of 2016

40. From the above discussion of law and facts, the

reasonable conclusion would only be that when a right of

easement by grant over plaint schedule way has been given to

the plaintiffs as per Ext.A1 by the predecessor in interest of the

defendants, the intention of the parties is to use it as a

passage alone and not for any other purpose including drawing

of pipeline. Of course, with the knowledge or informing the

defendants the plaintiffs can with his permission extent the

easement granted as per Ext.A1. But without informing him or

without the knowledge of the defendants the law does not

permit the plaintiffs to increase the extent of easement of

passage provided in Ext.A1 by drawing a pipeline which will

amount to exercise of easement of any other kind (of drawing

the pipeline).

41. The learned counsel for the plaintiffs also would

contend that water is a basic need and is a fundamental right

and hence when there is violation of the same it can be

enforced through a civil court. Article 21 of the Constitution of

India provides protection of life and personal liberty and a

citizen cannot live without water and it would definitely come

under the basic need of a human being. In State of RSA No.47 of 2016

Karnataka v. State of Andra Pradesh [2000 (1) KLT

OnLine 937 (SC)] it has been observed that there is no

dispute that under the constitutional scheme in our country

right to water is a right to life and thus is a fundamental right.

But when there is violation of fundamental rights, it has to be

enforced through a constitutional court and not through civil

court. Moreover, basic need is water. Anyhow, it has come out

during argument that plaintiff has filed a writ petition in this

regard and the same is pending. So, I am leaving that question

open.

42. It has already been found that the right of the

plaintiffs, as per Ext.A1, is only to use the plaint schedule

property as a passage and they are not entitled to extent the

same so as to draw a pipeline without the knowledge of the

defendants, the servient owner of the property.

In the result, appeal is found to be devoid of any merit

and hence dismissed no cost.

Sd/-

M.R.ANITHA JUDGE SMF