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
7
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
ma