Mariamma John vs Baby George

Justice Thomas P. Joseph

These appeals arise from the common judgment and decree of learned Sub Judge, Thiruvalla in A.S Nos.10 and 11 of 2005 confirming the judgment and decree passed by the learned Munsiff, Thiruvalla in O.S.Nos.523 of 1998 and 131 of 1999. Respondent filed the suits against the appellant and the first defendant for a decree for prohibitory injunction. In O.S No.523 of 1998, the prayer was for injunction to restrain the appellant and the first defendant from carving out a path way through the plaint schedule property(item No.1), described as 1.09 hectors in Re.survey No.201/4. Respondent claimed title and possession of the said property as per registered Will No.141of 1998. He claimed that property on the west of item No.1 belongs to the appellant and the first defendant and is situated at a lower level from item No.1. The properties are lying in slop towards west and accordingly is the natural flow of water. Through the property of appellant and the first defendant there is a water chal having width of 5 feet and length of 60 feet (described as Item No.3 in O.S No.523 of 1998). Respondent alleged that the appellant and the first defendant are attempting to closs the said water chal there by blocking flow of water from east to west during rainy season. He also apprehended that the appellant and the first defendant might convert the thodu on the southern side of item No.1 (described as item No.2 in O.SNo.523 of 1998) into a road. He prayed for a decree for prohibitory injunction against that as well. In O.S No.131 of 1999 also, respondent claimed a decree for prohibitory injunction on the strength of easement by prescription over the water chal (item No.3 in O.S No. 523 of 1998).

Appellant denied the existence of any such water chal through the property of himself and the first defendant. He claimed that there is a thodu on the southern side of item No.1 of the plaint schedule in O.S No.523 of 1998. He denied that the flow of water is from east to west or through item No.3 (water chal). He also contended that the first defendant had filed O.S No. 448 of 1996 against the respondent for prohibitory injunction against constructing a new canal through the property of the first defendant and thereafter, the respondent has filed the present suits.

The trial court found in favour of the plea set up by the respondent, held that he has right of easement by way of prescription to discharge water from the east to the west through item No.3 and granted injunction regarding that. On the finding that Item No.2 is a thodu running along the southern side of item No.1 of plaint A schedule in O.S.No523 of 1988, the appellant and the first defendant were restrained from converting that thodu into a road.

Judgment and decree of the trial court were challenged before the learned Sub Judge, in A.S Nos.10 of 2005 and 11 of 2005. The appeals were dismissed. Hence this second appeal.

The learned counsel for the appellant/additional second defendant has contended that the finding of the courts below as regards the right claimed by the respondent is erroneous. It is contended that there is no reliable evidence to show that the respondent has any right of easement by way of prescription over item No.3. The learned counsel has invited my attention to Ext.B5, copy of report and sketch in O.S.No.448 of 1996 proved through DW2, the Advocate Commissioner. It is pointed out from Ext.B5 that Item No.3 of the plaint schedule in O.S No.523 of 1998 claimed by the respondent as in existence for more than 20 years was formed immediately before institution of O.S No.448 of 1996. It is also argued by the learned counsel that the evidence of PW2 in cross examination would show that he has no idea about the properties and his evidence should not have been accepted. The learned counsel also invited my attention to the contention respondent had raised as defendant in O.SNo.448 of 1996 as regards item No.2 (stated in the preset suit as a thodu) that it is a road.

The learned counsel who took notice for the respondent contended that there is sufficient evidence to show that item No.3 of the plaint schedule, the chal through the property of the appellant and the first defendant is in existence beyond the statutory period u/s 15 of the Easements Act (for short ''the Act''). According to the learned counsel, evidence of PW2 could be accepted. It is also contended by the learned counsel that the natural flow of water is from east to west and that cannot be blocked by the appellant.

So far as the higher and lower riparian owners are concerned, position of law is settled that the inferior holder cannot obstruct the natural flow of water from the higher ground even if it is adverse to him. In this case, the evidence would show that the natural flow of water is from the east to the west. It is admitted that Item No.1 belonging respondent is situated on the east while the property of appellant and the first defendant are situated on its west. It has also come in evidence that towards further west of property of appellant and the first defendant, there is the railway track under which there is a culvert constructed by the railway. It came in evidence that the said railway culvert was constructed about the 70 years back. There is also a chal through the property on the immediate east of the railway culvert connecting the item No.3 and that culvert. The courts below having regard to these circumstances were of the opinion that claim of the appellant that Item No.3 water chal was formed by the respondent through their property about a year before the filing of O.S 448 of 1996 cannot be accepted. According to the courts below, the existence of the railway culvert for the last several years, even exceeding the statutory period u/s 15 of the Act and the connecting water chal running through the property on the west of property of appellant and first defendant connecting item No.3 to the culvert is a definite indication of existence of Item No.3 during the statutory period at least. The evidence of PW2 was relied upon.

I have been given a copy of Ext.B5, the report in O.S No. 448 of 1996. My attention is drawn to page 6 of Ext.B5 where the commissioner has reported (as told by one Madhavan) that according to the said Madhavan the water chal through the property of the appellant and the first defendant was formed about a year before (inspection of the commissioner-DW1). But it is relevant to note that the said Madhavan who gave that information was not examined. No doubt in Ext.B5 it is further stated that the Commissioner (DW1) found that at the portion were the water chal starts (in the property of the respondent), roots of the coconut tree were seen removed and that appeared to be having the oldness of about one year. From that description alone, in the light of what I have stated above and discussed by the courts below it is difficult to conclude that item No.3 of the plaint schedule in O.S No.523 of 1998 was formed about an year before filing of O.SNo.448 of 1996.

As regards the use of the item 3 for the discharge of water from east to west, respondent has given evidence as PW1. He has also examined PW2. (I do not forget that according to the appellant, the answers given by PW2 in cross examination would make his version unaccepted). The courts below were satisfied with the evidence of Pws.1 and 2. That, along with the existence of the railway culvert for more than the statutory period and the water chal connecting the item No.3 to that railway culvert were taken as positive indications of existence of item No.3 even beyond the statutory period. I must also notice that the natural flow of water is from the east to the west. Hence, the possibility of there being a water chal as described in item No.3 is also there. In the circumstances, I do not find any infirmity in the finding of the trial and the first appellate courts as to the existence of item No.3, water chal and its use.

So far as item No.2 of the plaint schedule in O.S No.523 of 1998 is concerned, whatever may be the contention respondent has raised as defendant in O.S No.448 of 1996, in O.S.No.523 of 1998 he contend that it is a thodu. It is relevant to note that even in Ext.B5, item No.2 is shown as a thodu along the southern side of Item No.1. If that be so, the appellant or first defendant have no right to convert the same into a road. In that view of the matter, the injunction granted by the trial court and confirmed by the first appellate court in that regard also justified. The decision of the courts below on facts is based on the evidence on record. I have heard the learned counsel on both sides and perused the judgments under challenge. I have also gone through the Ext.B5 and Exts.C1 and C1(a). I am not satisfied that any substantial question of law is involved in this second appeal.

The second appeals are dismissed.