IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 426 of 1996()
1. PRESIDENT,CHALPURAM PADASEKHARA K.SAN.
... Petitioner
Vs
1. P.VASUDEVA NAIK
... Respondent
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :SRI.A.RAMAPRABHU
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/02/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.426 of 1996
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ORDER
Defendant in O.S.No.651/1991 on the file of
Principal Munsiff’s Court, Kochi is the appellant.
Respondent is the plaintiff. Respondent instituted the
suit seeking a decree for declaration that he is
entitled to construct a granite bund with an opening or
sluice having a width of five feet, corresponding to
the sluice on the Pandikudy-Chellanam Road, to the
properties of the appellant Padasekharam Committee and
for a permanent prohibitory injunction restraining
appellant from causing any obstruction to the
construction.
2. Plaint schedule property is 5.52 acres in Sy.
Nos.1757, 305/1 and 304/1 of Kumbalangi village. They
originally belonged to Thirumala Devaswom. Under
Exhibit A1, plaint schedule property was purchased by
the respondent. At the time when there was a proposal
for sale, O.S.No.99/1975 was instituted by two persons,
being the President and Secretary of Anthikadavu
Palappuram Padasekharam Committee, contending that if
SA 426/96 2
the properties are allowed to be sold by the Devaswom,
it would affect their rights for prawn fishing and
claiming that, plaint schedule property cannot be sold
by the Devaswom. Devaswom filed Exhibit B1 written
statement admitting that a portion of the plaint
schedule property is being used for letting water to
western fields and there is a sluice having a width of
20 feet through which water used to be let out and let
in and tenants of the fields on the western side have a
right to use the chal only to a width of 20 feet and
the Devaswom do not want to obstruct the said right.
The suit was dismissed under Exhibit A3 judgment
finding that as the property belonged to Devaswom, no
decree for injunction could be granted restraining
Devaswom from assigning the property, but clarifying
that any assignment could only be subject to the
easement rights available to the Padasekharam
Committee. After Exhibit A1 assignment deed, this suit
was instituted contending that spending lakhs of rupees
a granite bund was constructed, but appellant is not
permitting construction of bund on the disputed portion
and respondent is prepared to provide a sluice having a
SA 426/96 3
width of five feet, so as to allow free flow of water
and appellant is not entitled to cause any obstruction
to the construction of the bund and therefore, sought a
decree.
3. Appellant resisted the suit contending that
plaint schedule property is unfit for paddy cultivation
and the plaint schedule property is used for free flow
of water to the western paddy fields and Kochi
Thirumala Devaswom was never causing any obstruction to
the free flow of water and the appellant has a right to
get free flow of water through the plaint schedule
property and when the assignor of the respondent
admitted in Exhibit B1 written statement that they will
not cause any obstruction to the free flow of water by
constructing a granite bund, the assignee is not
entitled to cause any obstruction and therefore, the
suit is only to be dismissed.
4. Learned Munsiff, on the evidence of PWs 1 to
3, DWs 1 to 3, Exhibits A1 to A3 and B1 and B2,
dismissed the suit. Respondent challenged the judgment
before Sub Court, Kochi in A.S.No.66/1995. Learned
Sub Judge, on re-appreciation of the evidence,
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partly allowed the appeal and declared that respondent
is entitled to construct a granite bund on the eastern
boundary of the plaint schedule property providing a
sluice having a width of not less than ten feet.
Appellant was restrained by a permanent prohibitory
injunction from causing any obstruction for such
construction. Second appeal is filed challenging the
said judgment.
5. Second appeal was admitted formulating the
following substantial questions of law:
1. Whether the documents produced by the
plaintiff along with the suit are part of the
pleadings. If so, whether defendant need to prove
further the same facts brought out by the evidence
of the plaintiff?
2. Whether an assignee of a property is bound by
the recitals in the document as to the right of
easement enjoyed by a third party. If so, whether a
suit is maintainable against such recital in the
document?
3. Whether the lower appellate court was justified
in fixing the width of a water chal without any
legal evidence?
4. Whether a declaration in a suit is not necessary
to oppose a prayer for injunction, in a suit by way
of defence on the basis of easement right?
SA 426/96 5
6. Learned senior counsel appearing for the
appellant was heard.
7. Learned senior counsel pointed out that
respondent purchased the rights of Devaswom under
Exhibit A1 subject to the right of easement available
to the appellant, as is clear from the recital in
Exhibit A1. It was also pointed out that before
execution of Exhibit A1 sale deed, O.S.No.99/1975 was
filed before Munsiff’s Court, Kochi challenging the
right of the Devaswom to transfer the property raising
a contention that the sale would affect the right to
have free flow of water to the paddy fields. Exhibit B1
written statement filed by the Devaswom conclusively
establishes that the assignor under Exhibit A1 admitted
the right of easement, in respect of free flow of water
to the paddy fields towards the western boundary of the
plaint schedule property to a width of twenty feet and
when the admission in the written statement filed by
the assignor of the respondent is binding on the
respondent, learned Sub Judge was not justified in
granting a decree reducing free flow of water to a
width of ten feet. It is argued that the plaint
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schedule property was being used for the free flow of
water to the paddy fields towards west and when Exhibit
A3 judgment, produced by the respondent, establishes
that though the suit was dismissed, it was made clear
that the right that could be obtained by any assignee
from the Devaswom is only subject to the right of
easement available to the Padasekharam Committee, the
decree granted by the first appellate court is not
sustainable.
8. Plaint schedule property was admittedly
purchased by the respondent under Exhibit A1 sale deed
dated 12.3.1981. There was a bund separating the plaint
schedule property from the western paddy fields even
previously, with sluices for free flow of water from
east to west as well as vis-vis. The bund was
subsequently converted into a public road. It is also
the common case that a culvert was constructed by the
Government in the PWD road providing sluices for free
flow of water towards west. As rightly found by the
first appellate court, respondent, as the owner of the
plaint schedule property, is entitled to put up a
granite bund on the eastern boundary of the plaint
SA 426/96 7
schedule property. At the very same time, respondent is
not entitled to construct a bund causing obstruction to
the right of easement, if any, available to the
appellant.
9. Even though respondent disputed the right of
easement available to the appellant and expressed his
willingness to provide a sluice having a width of five
feet, Exhibit A3 judgment establishes that even though
the suit filed against the Devaswom to restrain from
transferring the plaint schedule property was
dismissed, it was specifically provided in Exhibit A3
judgment that what could be transferred by the Devaswom
is only their right subject to the right of easement
available to the tenants in possession of the property,
which lies to the west of the plaint schedule property.
Exhibit B1 written statement filed by the Devaswom
unambiguously establishes that Devaswom admitted the
right of easement available to the tenants to have free
flow of water to a width of twenty feet.
10. The relevant recitals in Exhibit B1 reads:
“The entire chal was not used for letting out water.
There is a sluice which has a width of about twentySA 426/96 8
feet. The water used to be let out and let in through
this sluice. The tenants have a right to use the chal
only to a width of twenty feet and not more.”
It is also pleaded in the written statement that “the
Devaswom wanted to sell the chal to the highest
offerer. The defendant has a right to do so. But, by
this, the defendant does not want to obstruct the right
of the tenants to use the chal for letting in and
letting out water”. Therefore, Exhibit B1 written
statement shows two things. Firstly, it shows that
there is a sluice with a width of above twenty feet,
through which, water is used to be let in and let out
and the right to let the water out and in through the
sluice is a right of easement available to the tenants.
The other is that sale of the plaint schedule property
is only subject to the said right of the tenants,
agreeing that the assignee cannot obstruct that right.
11. The relevant recitals in Exhibit A1 also show
that under the said document, the right of the Devaswom
was assigned to the respondent subject to the right of
the tenants to take water through the sluice. It also
provides that respondent/assignee shall never cause any
SA 426/96 9
obstruction to the said rights of the tenants.
Therefore, Exhibit A1 with Exhibit B1 establish that
the right which was reserved in Exhibit A1,
specifically providing that, that right shall not be
obstructed by the respondent, in respect of a sluice
having a width of twenty feet. In such circumstances,
the question is whether first appellate court was
justified in reducing the width of the sluice to ten
feet, while permitting construction of a granite bund.
12. The judgment of the first appellate court
shows that the width of ten feet for the sluice was
fixed for the reason that the sluice provided in the
culvert is only having a width of eight feet. As
rightly pointed out by the learned senior counsel, the
width of the chal in the plaint schedule property,
which is to be left open, is not for the purpose of
enabling free flow of water along the sluice alone. The
width of the plaint schedule property, which shall be
left open, must be much larger than the width of the
sluice provided in the culvert. It could only be for
that reason even in Exhibit B1 written statement, the
assignor under Exhibit A1 admitted that the tenants on
SA 426/96 10
the western side of the plaint schedule property have a
right of free flow of water to a width of twenty feet.
Unfortunately, this aspect was omitted to be taken note
of by the learned Sub Judge. In such circumstances, it
is necessary to modify the judgment of the first
appellate court providing that the sluice to be
provided, while constructing a granite bund on the
eastern boundary of the plaint schedule property, shall
not be ten feet as stated in the decree and judgment,
but, the width shall not be less than twenty feet as
admitted in Exhibit B1 written statement. Appeal is,
therefore, to be allowed to that extent.
Appeal is allowed. The judgment and decree in A.S.
No.66/1995 on the file of Additional Sub Court, Kochi
is modified as follows:
The right of the respondent/plaintiff to construct
a granite bund on the eastern boundary of the plaint
schedule property, providing a sluice having a width of
not less than twenty feet, is declared. Appellant/
defendant is restrained by a permanent prohibitory
injunction from causing any obstruction to the
construction of such granite bund, if the sluice is
SA 426/96 11
having a width of not less than twenty feet. It is also
made clear that respondent shall not cause any
obstruction to the free flow of water to the western
padasekharam or to the discharge of water from the
padasekharam through the said sluice. There shall not
be any reduction in the quantity of water, which the
padasekharam should receive from the kayal through the
plaint schedule property.
11th February, 2010 (M.Sasidharan Nambiar, Judge)
tkv
SA 426/96 12
M.Sasidharan Nambiar, J.
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S.A.No.426 of 1996
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JUDGMENT
11th February, 2010