IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 478 of 1994()
1. VADAKKUMTHANI KUNHURAMAN NAIR
... Petitioner
Vs
1. E.MEENAKSHI AMMA
... Respondent
For Petitioner :SRI.V.R.VENKATAKRISHNAN
For Respondent :SRI.K.P.DANDAPANI
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/11/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO. 478 OF 1994
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Dated this the 27th day of November, 2007
JUDGMENT
Defendant in O.S.218/1983 on the file of Sub
Court, Tirur is the appellant. On the death of
appellant, his legal heirs were impleaded as
additional appellants 2 to 5. Respondents are the
legal representatives of the original plaintiff.
Deceased plaintiff instituted the suit claiming
damages and prohibitory injunction. Plaint A
schedule property admittedly belonged to the
plaintiff. On the eastern side of the plaint
schedule property muthiatha chali, a lagoon. It is
the plaint B schedule property. Respondent
contended that he along with others are riparian
owners and the riparian owners have right of
possession and enjoyment of lagoon upto its middle
and for the proper maintenance and cultivation of
their properties, riparian owners are entitled to
get the silt removed from the mouth of the lagoon
S.A.478/1994 2
which touches the Arabian sea. It was contended
that when appellant caused obstruction to the
removal of silt, O.S.134/1983 was filed by
plaintiff and other riparian owners seeking a
mandatory injunction and as appellant did not
allow the silt to be removed, there was flood and
inundation of saline water which could not flow
out to the sea causing destruction of mundakam crop
and also caused damages to the coconut saplings,
coconut trees and erosion of the soil. Plaintiff in
this suit claimed the damages of Rs.1000/- for the
loss of mundakam crop for the year 1982 , Rs.1200/-
as loss of 80 coconut saplings, Rs.700/- as loss
of damages to the coconut trees. He also claimed
Rs.800/- for restoration of plaint A schedule
property to its original position. Plaintiff
contended that appellant did not allow him to fish
and thereby he lost Rs.300/- being the value of
the fish which he could have otherwise got from the
lagoon. A decree for mandatory injunction to
restore plaint A schedule property into its
original position and prohibitory injunction
S.A.478/1994 3
causing further obstruction were also
sought.Appellant resisted the suit disputing the
riparian right claimed by respondent. It was
contended that plaint B schedule lagoon exclusively
belonged to the tarwad of the appellant and neither
respondent nor other owners adjoining lagoon have
any riparian right over plaint B schedule property.
It was contended that they have also no right to
catch fish from plaint B schedule lagoon.
Appellant also contended that respondent or other
persons have no right to remove the silt as the
lagoon exclusively belongs to the appellant. It
was contended that the entire silt cannot be
removed and only a small portion of the silt could
be removed touching the arabian sea and it is being
done by appellant and not by plaintiff and by non
removal of silt no damage was caused and therefore
appellant is not entitled to claim damages. The
fact that damage was caused and the quantum of
damages were also disputed. Appellant also
contended that suit is barred under Order II Rule
2 of Code of Civil Procedure as the relief should
S.A.478/1994 4
have claimed in O.S.134/1983.
2. Learned Munsiff on the evidence of Pws.1
and 2 and DW1 and Exts.A1 to A20, Exts.B1 to B23
and Exts.C1 to C6 found under Exts.A16 and A17
judgment in the earlier suit exclusive right
claimed by appellant was decided against him and it
was found that appellant and others have riparian
right over the lagoon. Learned Munsiff also found
that due to non-removal of silt, damage was caused
to mundakam crop as well as destruction of coconut
saplings and erosion of soil from plaint A schedule
property and plaintiff is entitled to the
damages. It was found that O.S.134/1983 was
earlier instituted seeking a decree against the
State and though appellant was also one of the
defendants and a decree for injunction was sought
against appellant from causing obstruction to the
removal of silt, present suit is one for damages
and as the damage could be assessed only after
Midunam 32 namely 15.7.1983 suit for damages was
not barred on account of the failure to claim
damages in the earlier suit. Learned Munsiff
S.A.478/1994 5
granted a decree as sought for by respondent.
Appellant challenged the decree and judgment before
Sub Court, Tirur in A.S.No.5/1988. Learned Sub
Judge on reappreciation of evidence, relying on
Exts.A16, A17 and A18 judgments found that
riparian right claimed by respondent was upheld by
this court which is binding on the appellant.
Learned Sub Judge on the evidence confirmed the
findings of learned Munsiff with regard to the
damages caused. The finding on the objection
raised under Order II Rule 2 of C.P.C was also
repelled. The appeal was dismissed. It is
challenged in the second appeal.
3. The second appeal was admitted formulating
the following substantial questions of law.
1. Was the court below
justified in holding that the
plaintiff is a riparian
owner, when there were no
sufficient materials for the
same.
2. Has the law relating to
S.A.478/1994 6
riparian owners been properly
applied in this case when
there are no sufficient
materials to hold that the
plaintiff is a riparian
owner.
3. Was court below
justified in granting damages
when there were no sufficient
materials for the same and no
sufficient materials to prove
the quantum.
4. Is the present suit
barred by Order 11 Rule 2.
4. Learned counsel appearing for appellants
and respondents were heard.
5. As a contention was raised that Ext.A18
judgment of this court confirming Exts.A16 and 17
judgments is challenged before the Apex Court and
it has not become final, that fact was got
verified. It is seen from the judgment in Civil
Appeal No.1132/1981, that Civil Appeal filed by
S.A.478/1994 7
appellant challenging Ext.A18 judgment of this
court was dismissed by the Supreme Court for
default on 12.10.1995. Therefore Ext.A18 judgment
of this court confirming Exts.A16 and A17 judgments
have become final. In the light of the judgment in
Exts.A16 and A17 judgment as confirmed in Ext.A18
judgment, the exclusive right claimed by appellant
over plaint B schedule lagoon can only be rejected.
This court found that neither appellant nor his
tarwad has any exclusive right over plaint B
schedule lagoon and it is a natural lagoon and the
owners of the property on the bed of the lagoon
have riparian right over the water as well as the
lagoon including the right for fishing. Therefore
in the light of the said decision, substantial
questions of law 1 and 2, raised, are to be
answered against appellants.
6. Learned counsel appearing for appellant
relying on the decision of the Privy council in
Mohammad Khalil Khan v. Maahbub Ali Mian (AIR 1949
P.C. 78), and a decision of learned single Judge of
this Court in Raman Ittiyathi v. Pappy Bhaskaran
S.A.478/1994 8
(1989 (2) KLJ 377) argued that plaintiff is not
entitled to split up the cause of action and if the
relief sought for in the subsequent suit are
available for him to be claimed at the time of the
former suit and not claimed in the subsequent suit
it is barred under Order 11 Rule 2 of Code of Civil
Procedure.
7. True, under Rule 2 of Order 11, every suit
shall include the whole of the claim which the
plaintiff is entitled to make in respect of the
cause of action, though he is entitled to
relinquish any portion of his claim in order to
bring the suit within the jurisdiction of any
court, Ext.B12 the plaint in the former suit shows
that the said suit was predominantly one for
removal of the silt from plaint B schedule lagoon.
Plaintiffs in that suit, which include the
plaIintiff herein, sought a direction to the State
and other defendants to remove the silt. True a
decree for permanent prohibitory injunction was
also sought against the appellant and one of the
prayer in the present suit is also to restrain him
S.A.478/1994 9
from interfering with their possession upto the
middle of the lagoon as they have got riparian
right over the property.
8. On hearing the learned counsel and on the
facts of the case, I do not find that provisions
of Rule 2 of Order II has any application in the
present case. There is no allegation in the plaint
that damages claimed was caused either on the date
of cause of action in the earlier suit or earlier.
Allegation is that damages were caused due to the
failure to remove the silt. That damages were not
caused on a particular day but a continuing one.
Hence cause of action cannot be the same. Moreover
it cannot be said that the claim for damages was
available to be claimed in that suit. The claim
for damages in the suit is one for loss of mundakam
crop, which as rightly found by trial court, could
be ascertained only after 15.7.1983. O.S.134/1983
was instituted prior to that date. Hence claim for
damages could not have been claimed thereunder.
So also there is no allegation or evidence that
damages to the coconut saplings or other damages
S.A.478/1994 10
was caused before 15.7.1093. In such circumstance,
findings of courts below that suit is not barred
under Rule 2 Order II of CPC is perfectly correct.
8. Then the only question is with regard to
the damages. As rightly pointed out by learned
counsel appearing for respondent, question whether
any damage was caused and if so, its cause and
the quantum are all questions of fact. The
findings of fact arrived at by the trial court and
confirmed by the first appellate court cannot be
interfered by reappreciating the evidence, as
sought for by learned counsel in exercise of the
powers of this court under section 100 of Code of
Civil Procedure. Though learned counsel appearing
for appellant relying on the report submitted by
Commissioner argued that Commissioner has reported
that it is not possible to say that the damage was
caused only on account of the non-removal of the
silt, trial court and first appellate court on
appreciating the evidence found that damages were
caused on account of the non-removal of the silt
which in turn was caused by the appellant. Though
S.A.478/1994 11
learned counsel appearing for appellants argued
that there is no evidence to prove the obstruction
caused by the appellant, the very contention raised
in the written statement as well as before the
appellate court was that apart from appellant
nobody else was got any right to remove the silt.
In such circumstance, even if there is no direct
evidence to prove the alleged obstruction caused,
it is clear that the non-removal of silt was on
account of the action of the appellant. Therefore
he is liable for damages. The learned Munsiff has
awarded only a reasonable damages of Rs.4000/-. In
such circumstance, appeal is dissmissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006