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.
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CRL.R.P. NO. 1425 OF 2008
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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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