High Court Kerala High Court

Eldhose vs T.J.Joy on 11 June, 2008

Kerala High Court
Eldhose vs T.J.Joy on 11 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 1425 of 2008()


1. ELDHOSE, S/O.MATHAI,
                      ...  Petitioner

                        Vs



1. T.J.JOY, THELLINYANKKAL HOUSE,
                       ...       Respondent

2. K.J.KURIACHAN, KUNNUMPURATH HOUSE,

3. V.J.MOHANAN, VAZHAPARAMBIL HOUSE,

4. K.P.JOSE, KAYIKKAKUDI HOUSE,

5. STATE OF KERALA, REP. BY PUBLIC

                For Petitioner  :SRI.N.M.VARGHESE

                For Respondent  :SRI.K.K.JOHN

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :11/06/2008

 O R D E R
                     V.RAMKUMAR, J.
       ======================================
                 CRL.R.P. NO. 1425 OF 2008
       ======================================
             Dated this the 11th day of June 2008

                            ORDER

Heard both sides.

2. The revision petitioner who was the counter

petitioner in M.C.No.14/2007 on the file of the Sub

Divisional Magistrate, Devicolam, challenges the final

order dated 3.1.2008 passed by the Sub Divisional

Magistrate.

3. The revision petitioner – Eldhose @ Kunjumon is

the uncle of one Mahesh Varkey, who has an item of

property situated at Anaviratty in Vellathooval Village

bounded on the west by a Panchayat road and on the

south by a big water channel for the drainage of water.

Since the said Mahesh Varkey is stated to be abroad, the

revision petitioner is looking after the said property on

behalf of his nephew. The eastern boundary of the said

property is the property of T.J.Joy, the first respondent

herein and the said property does not extend

CRL.R.P.1425 of 2008 2

southwards upto the big water channel. In between the

property of T.J.Joy and the southern water channel is

the property of the 4th respondent, K.P.Jose Kayikkakudi.

Immediately to the east of the property of the first

respondent – T.J.Joy is the property of the second

respondent – K.J.Kuriachan. The common northern

boundary of the property of Mahesh Varkey, T.J.Joy and

K.J.Kuriachan is the Adimaly-Munnar National Highway

called N.H.49. There is no dispute that the lie of the land

is such that it slopes towards south or south – west.

4. On 15.5.2007, respondents 1, 2 and 4 herein and

one V.J.Mohanan moved the Sub Divisional Magistrate,

Devikulam alleging that a thodu which proceeds from the

National Highway southwards and turns westwards at the

southern boundary of the first respondent’s property and

passing through the property of Mahesh Varkey was

obstructed by the revision petitioner, who is the uncle of

Mahesh Varkey causing inundation of water and deposit

of mud and silt in the property of the complainants.

CRL.R.P.1425 of 2008 3

They also alleged that the said thodu was used for

draining water for the last several years and the revision

petitioner who is looking after the property of Mahesh

Varkey had filled up portions of the thodu passing

through the property of Mahesh Varkey by filling up the

same with earth. They further alleged that during the

monsoon season, excess water and silt came to be

deposited in their property resulting in damage to the

paddy cultivation. They, therefore, prayed for appropriate

directions for redressel of their grievances.

5. The Sub Divisional Magistrate called for a report

from the Village Officer Vellathooval. On 2.6.2007, the

Village Officer, Vellathooval submitted a report to the

following effect:-

There is a thodu along the culvert, across the

National Highway on the north. The said thodu is passing

and passing in between the properties of T.J.Joy and

K.J.Kuriachan and having a width of 1 metre is meant for

draining rain water to the southern water canal. His

CRL.R.P.1425 of 2008 4

enquiry with the neighbors revealed that the said thodu

after passing southwards was passing through the

property of the revision petitioners to eventually reach

the southern water canal, situated about 200 meters

away and on account of the blockage created by the

revision petitioner, there was likelihood of collection of

mud and earth and damage the paddy cultivation. The

Field Measurement Book pertaining to re-survey does not

show the existence of the thodu starting from the

National Highway. But the enquiry conducted by him

revealed that the thodu, as alleged by the complainants,

was in existence for the past 40 years and the water

channel which was obstructed by the revision petitioner

has to be restored to its original condition. On discussing

the matter with the revision petitioner and the

complainants, the revision petitioner had objected to the

carriage of water through his property but had agreed to

construct a new thodu along his eastern boundary so as

to reach the southern water canal.

CRL.R.P.1425 of 2008 5

6. On 27.6.2007, the Sub Divisional Magistrate

passed a conditional order under Section 133 Cr.P.C.

directing the revision petitioner to remove the

obstruction caused to the free flow of rain water by

blocking the thodu passing through his property and by

diverting the course of the water channel and directing

the revision petitioner to restore the water channel to its

original position or to appear before the Sub Divisional

Magistrate on 12.7.2007 and show cause why the

conditional order should not be made absolute.

Thereafter the Sub Divisional Magistrate, as per the

impugned order dated 3.1.2008 made the conditional

order absolute, after taking note of the pendency of a

suit filed by the revision petitioner as O.S.111 of 2007

before the Munsiff Court, Devikulam and after adverting

to the statement of witnesses, by name, Shaji, Regi, Anil

Kumar and that of the Village Officer, Vellathooval. It is

the said order which is assailed in this revision.

7. After hearing both sides and perusing the lower

CRL.R.P.1425 of 2008 6

court records, I am of the view that if the impugned

order is upheld, then it will have the effect of virtually

cutting the property of the revision petitioner’s nephew

into two segments which may render the property

useless. As mentioned earlier, the revision petitioner’s

property is bounded on the west by a Panchayat road

and on the southern side by the main water canal into

which the water collected in the National Highway which

is at a higher level is said to eventually reach through

the disputed thodu. While there is no dispute regarding

that portion of the thodu which run southwards in

between the properties of T.J.Joy and K.J.Kuriachan and

reaching up to the southern boundary of the property of

T.J.Joy, the dispute is really pertaining to the further

course of the thodu running from east to west almost

through the middle of the revision petitioner’s property.

According to the complainants, from the point where the

said thodu touches the eastern boundary of the revision

petitioner’s property, it was running westwards to reach

CRL.R.P.1425 of 2008 7

the Panchayat road and then southwards to reach the

southern water canal. According to the revision

petitioner, there was no thodu passing through his

property allowing water to be drained into the southern

water canal. But the revision petitioner had made an

undertaking before the Village Officer at the time of his

inspection, that he is willing to construct a thodu from

the point where the existing thodu touches his eastern

boundary, up to the southern water canal along his

eastern boundary. Unfortunately, this aspect of the

matter has not been gone into by the Sub Divisional

Magistrate, who has also not explored the possibility of

draining water to the southern water canal along the

eastern boundary of the revision petitioner’s property. In

case the course of the existing thodu could be directed

to the southern water canal through the eastern

boundary of the revision petitioner’s property, that may

abate the nuisance alleged by the respondents 1 to 4.

That is certainly a possible alignment which can cause

CRL.R.P.1425 of 2008 8

least hardship and inconvenience to all the parties. If the

problem of inundation of water and collection of earth on

account of the blockage at the disputed point could be

got over by extending the thodu along with the eastern

boundary of the revision petitioner’s property, that will

certainly solve the problem faced by the respondents 1 to

4 herein. Such an alternative alignment can allay the

heartburn caused to the revision petitioner also. I,

therefore, set aside the final order dated 3.1.2008

passed by the Sub Divisional Magistrate and remit the

matter to the Sub Divisional Magistrate to explore the

possibilities of the aforementioned or any other alternate

alignment which may cause the least inconvenience to

either parties. In case after considering the topography

of the land, water could be drained through the

aforementioned or any other alternate alignment, that

can be the best possible solution to this problem. Both

the parties shall adduce evidence to show whether the

above alternate course could be adopted so that there is

CRL.R.P.1425 of 2008 9

no heartburn for either side. The sub Divisional

Magistrate shall call for a report from the Village Officer

during the ensuing monsoon and may also conduct a

local inspection, if necessary.

The Revision Petition is allowed as above.

V.RAMKUMAR, JUDGE

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