Kerala High Court
P.P.Santhosh vs Mary Mathew on 28 January, 2014
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY,THE 28TH DAY OF JANUARY 2014/8TH MAGHA, 1935
RSA.No. 72 of 2014 ()
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AGAINST THE JUDGMENT IN AS 63/2006 OF SUB COURT, CHERTHALA
AGAINST THE JUDGMENT IN OS.NO. 44/2005 OF ADDL.MUNSIFF COURT, CHERTHALA
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APPELLANTS/APPELLANTS/PLAINTIFFS :
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1. P.P.SANTHOSH,
S/O.PRABHAKARAN,
VELIYIL HOUSE, AGED 33
NADUBHAGAM MURI
THYCATTUSSERI VILLAGE.
2. BOBY SANTHOSH
W/O.SANTHOSH, DO. DO. DO.
AGED 23.
3. V.V. BOBAN,
S/O.BABU, DO. DO. DO.
AGED 22.
BY SENIOR ADVOCATE SRI.N.SUKUMARAN
BY ADVS.SRI.S.SHYAM
SRI.N.K.KARNIS
SRI.SAJI VARGHESE KAKKATTUMATTATHIL
SRI.KURUVILLA JOHN
RESPONDENTS/RESPONDENTS/DEFENDANTS :
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1. MARY MATHEW,
W/O.MATHEW, KOTTILAKKATHU FROM KANDAZHATHU HOUSE
PALLIPPURAM MURI, PALLIPPURAM VILLAGE,
AGED 61, PIN 688541..
2. JOLLY MATHEW,
S/O.MATHEW, DO. DO. DO., AGED 35.
3. JOJI MATHEW,
S/O.MATHEW, DO. DO. DO., AGED 33.
4. JESSY MATHEW ,
D/O.MATHEW, DO. DO. DO., AGED 31.
5. JIJI MATHEW ,
D/O.MATHEW, DO. DO. DO., AGED 28.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 28-01-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Mn
P. BHAVADASAN, J.
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R.S.A. No. 72 of 2014
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Dated this the 28th day of January, 2014.
JUDGMENT
The plaintiffs alleging obstruction of natural flow of water from the property of the defendants to their property laid the suit.
2. The property of the plaintiffs situate on the northern side of the defendants' property. On the southern side of the defendants' property there is a thodu. The allegation is that water from the said thodu enters the property of the defendants and that flows into the property of the plaintiffs which they use for cultivation purposes. The suit was laid as if it was the only source of water to the property of the plaintiffs.
3. The defendants contested the suit and pointed out that the claim of the plaintiffs that the water that enters into their property flows into the property of the plaintiffs is R.S.A.72/2014.
2incorrect and there is other source of water for their property. They also pointed out that at no point of time there was natural flow of water through their property to the property of the plaintiffs.
4. The trial court perused the commission reports. The trial court came to the conclusion that there was want of evidence to show that there is level difference and there is natural flow of water from the property of the defendants to the property of the plaintiffs. The trial court also found that there was a sluice on the north-eastern corner of the plaintiffs' property and there was other source of water. Holding that the plaintiffs are not entitled to the reliefs prayed for, dismissed the suit.
5. The plaintiffs carried the matter in appeal as A.S. 63 of 2006. The appellate court after an independent evaluation of the evidence confirmed the judgment of the trial court.
R.S.A.72/2014.
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6. Learned counsel appearing for the appellants contended that the courts below have erred both on facts and in law in holding that there is no natural flow of water. It is pointed out with reference to Exts.C1 and C1(a) and also Exts.C2 and C2(a) that the portion shown as ABCD is a portion of the plaint schedule property and therefore from the very lie of the property it is difficult to say that water that enters into the defendants' property does not flow to the property of the plaintiffs and that is the main source of water for the property of the plaintiffs. The lower courts have not considered the real case of the plaintiffs and based their conclusion on the fact that there is no level difference so as to reach a conclusion that there is natural flow of water.
7. After having heard learned counsel for the appellants and on perusing the judgments, this Court finds no ground to interfere with the judgment and decree of the courts below. It is significant to notice that the plaintiffs had R.S.A.72/2014.
4conveniently suppressed that there is a sluice on the north eastern side of their property which provide water for their property. The suit was laid as if the only source of water to the property of the plaintiffs is from the thodu on the southern side of the property of defendants. Both the courts below have found that none of the Commission reports indicate that water had ever flown or would flow from the property of the defendants to the property of the plaintiffs. No pleading regarding the existence of sluice for that purpose is made in the plaint. At the time of evidence, the plaintiffs came forward with a contention that even though he had an alternate source of water, that water was contaminated and cannot be used. That was found against by both the courts below. There is nothing to show that at any point of time water had flown from the defendants' property to the plaintiffs' property. It is true that the defendants' property lies uncultivated. But that by itself is not a ground to confer right on the plaintiffs to R.S.A.72/2014.
5have natural flow of water from the property of the defendants to their property.
8. After having given anxious consideration of the entire facts, this Court felt that there is no infirmity or illegality in the judgments of the courts below.
This appeal is without merits and it is dismissed.
P. BHAVADASAN, JUDGE sb.