High Court Kerala High Court

Bhaskaran vs Dayanandan.N. on 11 August, 2010

Kerala High Court
Bhaskaran vs Dayanandan.N. on 11 August, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 921 of 2010()


1. BHASKARAN, AGED 65 YEARS,
                      ...  Petitioner
2. ANOOP, AGED YEARS,
3. ANEESH, AGED 34 YEARS,

                        Vs



1. DAYANANDAN.N., AGED 51 YEARS,
                       ...       Respondent

                For Petitioner  :SRI.P.S.SREEDHARAN PILLAI

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :11/08/2010

 O R D E R
                      P.BHAVADASAN, J.
                      -------------------------
                    R.S.A No.921 of 2010
                      --------------------------
             Dated this the 11th August, 2010

                        J U D G M E N T

This Second Appeal is filed by the defendants in O.S

540/2006 before the Munsiff’s Court, Kozhikode who

suffered a decree at the hands of the trial court which was

confirmed in appeal. The parties and facts hereinafter

referred to as are available before the trial court.

2. The dispute relates to a well. Plaintiff claimed

that well belongs to him and is comprised in the property

acquired by him as per Ext.A1 sale deed dated 5.102004.

According to him, the plaintiff is in absolute possession

and enjoyment of the same. It is stated in the plaint that

the defendants are the the adjacent property owners.

They used to take water from the well situated within the

boundary of plaint schedule property. Plaintiff has no

objection for doing so. The defendants have installed a

motor pump in the well for taking water from it. They did

so without the knowledge and consent of the plaintiff.

R.S.A No.921 of 2010
2

They are not entitled to do so. Even in spite of the repeated

demands from the plaintiff defendants did not remove the

motor from the well. Hence the suit.

3. Defendants entered appearance and contested

the suit. Accordingly, from the date of partition of the

property, the common well had been used by the members

of plaintiff and defendants family. They have been drawing

water from the well. It is contended that separate

provisions were provided for both parties for taking water

from the common well. They claimed a right to install a

motor pump to draw water from the well. Therefore , the

defendants prayed for dismissal of the suit.

4. The trial court raised necessary issues for

consideration. The evidence consists of the testimony of

PW1 and PW2 and Exts. A1 to A3 were marked from the

side of the plaintiff. Defendant had examined DW1 and

Ext.B1 was marked. Exts.C1 and C1 (a) are the commission

report and plan. CW1 was examined as court witness.

5. The trial court found that defendants failed to

establish any manner of right to draw water from the well.

R.S.A No.921 of 2010
3

It is also found that well is situated in the property which

belonged to plaintiff and going by the evidence of PW2,

there is nothing to show that the defendants had any

manner of right to draw water from the well. Finding so,

the suit was decreed in favour of the plaintiff.

6. Defendants carried the matter in appeal as A.S

No.103/2008 before the District Court, Kozhikode. The

lower appellate court evaluated the evidence in the case

and came to same conclusion as that of the trial court.

7. It seems that at the appellate stage plaintiff

made a concession that he had no objection in defendants

drawing water manually from the well and objection is

regarding the installiation of a motor pump. It is also

conceded by him that he had no objection in continuing

with the said process. The decree passed by the trial court

was modified to that extent and the appeal was dismissed

observing so. Aggrieved by the said judgment and decree,

this appeal has been filed.

8. Learned counsel appearing for the appellants

pointed out that plaintiff had admitted that the ancestors of

R.S.A No.921 of 2010
4

the respective parties had only one well to draw water. It

is also pointed out that the well is not included in the

property purchased by plaintiff as per Ext. A1.

9. Learned counsel appearing for the appellants

pointed out that appellants had filed objection to the

commission report to the effect that location of the well

has been incorrectly identified and had sought for setting

aside the commission report. It is contended that the same

has not been considered. Finally it is contended that at

any rate, appellants enjoyed easement by prescriptive

right to draw water from the well.

10. None of the above contentions have any merits.

Plaintiff only stated that previously there was only one well

in the property and that does not mean by subsequent

partition, well will continue to be a common one. He also

accepted that people used to draw water from that well.

Plaintiff has asserted that the well is situated in the

property which exclusively belonged to him as per Ext.A1.

Defendants had contended that well is not situated

exclusively in the property owned by the plaintiff and it is a

R.S.A No.921 of 2010
5

common well. The defendants failed to establish the

same.

11. The trial court has referred to the report and

sketch submitted by the Commissioner. The court below

has observed that well is located within the boundary of

the plaint schedule property. It is also stated that no

evidence had been adduced by the defendants to show that

commission report is erroneous and contrary to facts.

12. The claim of co-ownership, is without any legal

basis. There is no document produced by the appellants to

show that they are co-owners of the property and as a

matter of fact they have right to draw water from the well.

It is interesting to note that the appellants claimed

ownership as per Ext.B1 will dated. 3.11.1955, said to have

been executed by Cheriyekku. When DW1 had examined,

he deposed that there is no document to show that

defendant had any manner of right over the well. He was

also unable to give any cogent and convincing evidence

regarding the right of the defendants to draw water from

the well. DW1 in fact stated that defendant had right as

R.S.A No.921 of 2010
6

such to draw water from the well though it was standing in

the property owned and possessed by the plaintiff.

13. As regards the claim of question of right of

easement by prescription, it is not proved.

14. Learned counsel appearing for the appellants

relied on the statement found in the appellate court

judgment that it was submitted on behalf of the plaintiff

that he has no objection in defendants taking water from

the well. It is contended that this shows that the

defendants have a right to draw water from the well.

15. It is pointed out that when the motor installed

by the defendants were forcibly removed, a complaint was

filed before the police and at the intervention of police, it

was directed that well will remain in that place. Even

assuming the said fact to be correct, that cannot confer

any enforcible right on defendants to draw water from the

well. One fails to understand the nature of right claimed

by the defendants to enable them to draw water from the

well.

R.S.A No.921 of 2010
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16. One cannot omit to note that defendants are

asserting a positive fact that they have a right to draw

water from the well. The evidence clearly shows that well

is situated within the property owned and possessed by the

plaintiff. The burden is therefore on the defendants to

show that they have a right to draw water from the well.

17. It is true that plaintiffs had stated that

defendants had been using water from the well. At the

appellate stage, plaintiff had conceded that he had no

objection in the defendants drawing the water manually

from the well but installation of motor pump by the

defendants is objected to. The above concession could not

be extended to carve out a right in favour of defendants.

18. The courts below have considered all the aspects

in considerable detail and come to the conclusion that

defendants have not been established any manner of right

to use the well. However, the decree of the trial court is

seen modified to the extent that defendants can draw water

manually from the well. Therefore, the right to draw water

from the well has been safeguarded.

R.S.A No.921 of 2010
8

No grounds are made out to interfere with the

judgment and decree of the courts below. The appeal is

without merits and it is accordingly dismissed.

P.BHAVADASAN, JUDGE
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