Kerala High Court
Thahira vs Pathumma on 17 September, 2012
Author: N.K. Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 18TH DAY OF JULY2013/27TH ASHADHA, 1935
RSA.No. 278 of 2013 ()
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AGAINST THE JUDGMENT IN AS 204/2011 of ADDL.DISTRICT COURT, KOZHIKODE
DATED 17-09-2012
AGAINST THE JUDGMENT IN OS 141/2008 of ADDL.MUNSIFF COURT-II, KOZHIKODE
DATED 30-09-2011
APPELLANT(S)/APPELLANT/APPELLANT/PLAINTIFF :
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THAHIRA, AGED 41 YEARS
W/O. MUHAMMED, UMMERAKUZHI PURAYIL, MADAVOOR AMSOM
MUTTANCHERRY DESOM, POST MUTTANCHERRY, VIA NARIKUNI
KOZHIKODE TALUK, KOZHIKODE DISTRICT.
BY ADVS.SRI.GRASHIOUS KURIAKOSE (SR.)
SMT.M.MANJU
SRI.K.R.RANJITH
SRI.R.SUDHISH
RESPONDENT(S)/RESPONDENTS/DEFENDANTS :
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1. PATHUMMA, AGED 56 YEARS
D/O. KARIKKERIKANDIYIL ADHRUMAN KUTTY HAJI
W/O. ARITUMCHALIL ABDUL KHADER
RESIDING AT KUDUKKILUMARAM, ANDONA ROAD, RAROTH AMSOM
KARINHAMANNA DESOM, POST THAMARASSERY
KOZHIKODE-673 573.
2. KADHEEJA , AGED 62 YEARS
W/O. HSSAN, RESIDING AT PANGANDIYIL
NANMANDA AMSOM DESOM, NATIONAL LP SCHOOL ROAD
POST NANMANDA, KOZHIKODE-673 613.
3. SHAMEEM , AGED 33 YEARS
S/O. UMMARAKUZHI PURAYIL AHAMMED KOYA
MADAVOOR AMSOM, MUTTANCHERRY DESOM, POST MUTTANCHERRY
KOZHIKODE-673 585.
R1 & R2 BY ADVS. SRI. SANTHOSH G PRABHU
SMT.N.U.DEEPA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
18-07-2013, ALONG WITH CO. 22/2013, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
JJJ
N.K. BALAKRISHNAN, J.
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R.S.A. No. 278 of 2013
&
Cross Objection No.22 of 2013
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Dated this the 18th day of July, 2013
J U D G M E N T
Plaintiff who concurrently lost in a suit for injunction is the appellant. Plaint A schedule property belongs to herself and her husband who is abroad. B Schedule property now belongs to the defendants. There is a well in another property. Though it is not described in the plaint as C schedule, in one of the Commissioner's report it is described as C schedule property. Hence, that property is referred as 'C' schedule property
2. The suit was filed contending that the defendants were attempting to cut and remove the pipe fitted to the motor pump installed inside the C schedule well. The water from that well, according to the appellant, had been drawn using that pump set and was taken to the appellant's house R.S.A. No.278/2013 & Cross Objection No.22/2013 -2- situated in the A schedule property by laying pipes through the B schedule property belonging to the respondents. It is also contended that the electric connection to the pump set was also connected to the appellant's house by drawing line through a pipe laid in the B schedule property. The appellant contends that the respondents were attempting to disrupt and remove the water pipes as well as the electricity line and thereby the appellant's right to draw water from the C schedule well was prevented by the defendants.
3. The defendants filed written statement denying the allegations made in the plaint. It is contended that the plaintiff has absolutely no right to draw water by using pump set. Not only that the plaintiff has no right to lay pipes through B schedule property for the purpose of taking water from the well or for taking the electricity line through the pipe laid underneath the B schedule property belonging to the respondents. The respondents further contended that R.S.A. No.278/2013 & Cross Objection No.22/2013 -3- the appellant laid pipes as aforesaid without the consent and knowledge of the respondents, taking advantage of the fact that the respondents were staying about 15 kilometres away from the B schedule property. It is further contended that it was a cruel act on the part of the appellant to draw the line almost through the middle of the B schedule property rendering the B schedule property useless. A counter claim was made by the defendants seeking mandatory injunction directing the plaintiff to remove the pipe lines laid underneath the plaint B schedule property and also for a prohibitory injunction restraining the plaintiff and her men from trespassing into the B schedule property.
4. PWs 1 to 4 were examined and Exhibits A1 to A10
(a) were marked on the side of the plaintiff. DWs 1 and 2 were examined and Exhibits B1 to B6 were marked on the side of the defendants. Commissioner's report and plan were marked as Exhibits C1 and C1(a).
R.S.A. No.278/2013 & Cross Objection No.22/2013 -4-
5. The learned Munsiff, after thoroughly scanning the evidence, found that the plaintiff is not entitled to get a decree for injunction and hence the suit was dismissed. But a decree was passed in the counter claim directing removal of the pipe lines laid underneath the plaint B schedule property and a prohibitory injunction was also granted restraining the plaintiff from trespassing into the B schedule property.
6. In the appeal the decree granted by the trial court was partly set aside and a decree for injunction was granted restraining the defendants and their men from causing disturbance of the plaintiff's right of drawing water from the C schedule well by conventional methods and for that purpose to use the B schedule property for the plaintiff's access to the well. The plaintiff's suit, as far as it relates to the injunction sought against removal of pipes, which was R.S.A. No.278/2013 & Cross Objection No.22/2013 -5- dismissed by the trial court was confirmed. A mandatory injunction was granted in favour of the respondents directing the plaintiff to remove the pipe lines and also the cable lines (electric lines) laid in the soil underneath the B schedule property.
7. The learned senior counsel appearing for the plaintiff/appellant would submit that admittedly both parties are bound by the terms of Ext.A1- gift deed/settlement deed dated 20.09.1977. Parties are claiming right over A schedule and B schedule properties under Ext.A1. C schedule well is situated in item no.12 of Ext.A1. In Ext.A1 it was stipulated that the said well was kept apart for the user of the parties of that document and that the user shall not be obstructed by the other parties to the document. The fact that the plaintiff is entitled to draw water from the said well is not disputed by the respondents also. The plaintiff contends that even at the time of Ext.A1, R.S.A. No.278/2013 & Cross Objection No.22/2013 -6- pump set was installed in the well and water was being drawn to the plaintiff's house by laying pipes underneath the soil in the B schedule property. But no such recital is seen in Ext.A1. There is also no stipulation or statement in Ext.A1 that B schedule property which was alloted to another donee/setlee as per Ext.A1 was bound to consent or provide right to the plaintiff for laying pipes for taking water from the well to the appellant's house through the B schedule property nor is there anything to indicate that as on the date of Ext.A1 any motor pump set was fitted or that electricity connection was taken from the appellant's house to the pump set in the C schedule, drawing it through the B schedule property by laying cables underneath the soil in the B schedule property.
8. Though two witnesses were examined to prove the laying of pipes, cables etc, those two witnesses were found to be hired and tutored by the plaintiff to speak falsehood in R.S.A. No.278/2013 & Cross Objection No.22/2013 -7- court as dictated and desired by the plaintiff. The courts below have rightly rejected the evidence of PWs 3 and 4, as unworthy of credence.
9. The learned senior counsel appearing for the appellant refers to section 24 of the Indian Easements Act. It reads:
"The dominant owner is entitled, as against the servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage. Accessory rights - Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights."
R.S.A. No.278/2013 & Cross Objection No.22/2013 -8-
10. According to the learned counsel since the right to do all the acts necessary to secure full enjoyment of the easement to draw water from the well in the C schedule is there, the right to lay pipes through B schedule property to the A schedule property should be treated as an accessory right and that if only such right is protected, the right to take water conferred on the parties/beneficiaries would become meaningful and so in order to enable the parties to secure the full enjoyment of the easement, the accessory right has to be protected. But here, as per Ext.A1 no right was provided to the parties to take water by laying pipes through B schedule property.
11. Section 28 of the Indian Easements Act also can be referred to here, which reads:
"With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:-
Easement of necessity - An easement R.S.A. No.278/2013 & Cross Objection No.22/2013 -9- of necessity is co-extensive with the necessity as it existed when the easement was imposed.
Other easements - The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired.
In the absence of evidence as to such intention and purpose -
(a) Right of way - A right of way of any
one kind does not include a right of
way of any other kind;
(b) Right to light or air acquired by
grant - The extent of a right to the
passage of light or air to a certain
window, door on other opening,
imposed by a testamentary or non-
testamentary instrument, is the
quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument R.S.A. No.278/2013 & Cross Objection No.22/2013 -10- was made;
(c) Prescriptive right to light or air -
The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used;
(d) Prescriptive right to pollute air or water - The extent of a prescriptive right to pollute air or water is the extent of the pollution at the commencement of the period of user on completion of which the right arose; and
(e) Other prescriptive rights - The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right."
R.S.A. No.278/2013 & Cross Objection No.22/2013 -11-
12. Here, the right that has been projected by the appellant is one by grant, but it was not specifically granted. There was no specific case in the plaint nor is there any evidence to show that the plaintiff/appellant has acquired prescriptive right of easement for laying pipes through B schedule property for taking water from the well to plaint A schedule property or for laying cables/electric lines to draw electricity from the appellant's house to the C schedule well. Moreover, no argument was addressed to the effect that the appellant has acquired any prescriptive right. If so, the extent of any other easement or the mode of its enjoyment must be fixed with reference to the probable intention of the parties, for which the right was imposed or acquired.
13. What could be the probable intention of the parties at the time of Ext.A1, is to be gathered. Since no mention what so ever was made in Ext. A1 regarding the laying of pipes for taking water from the well and since no R.S.A. No.278/2013 & Cross Objection No.22/2013 -12- stipulation was also made that the respondents should allow the appellant or other parties to the document to lay pipes underneath the B schedule property for the purposes as aforesaid, it would be an exercise in futility to contend that the right to draw water should take within it the right to lay pipes through other properties for the purpose as aforesaid.
14. Though Exts. A9 and A10 - the letters alleged to have been given by the respondents to the appellant were also thrust in after the evidence was closed, the courts below could find that those documents were not proved to be the consent letters as alleged by the appellant. In fact, nothing was stated about those two letters in the plaint or in the written statement filed to the counter claim nor were those documents produced at the time of trial. It was only after the evidence was closed those two letters were produced. The courts below found that those two documents were not proved to be genuine. The courts R.S.A. No.278/2013 & Cross Objection No.22/2013 -13- below have rightly rejected Exts.A9 and A10.
15. It was already found that there is absolutely no evidence to show that as on the date of Ext.A1 motor pump set was installed or that the water pipes and the electricity lines were laid underneath the soil in the B schedule property. In such circumstances, it is only reasonable to hold that the motor pump set was fitted and the pipes were laid only a few months prior to the filing of the suit. It is in order to get those pipes removed, the defendant filed the counter claim. If the plaintiff fails to establish her right to lay pipes through B schedule property then certainly she has to remove the same. It was also pointed out that if electricity is to be taken from the appellant's house to the well situated in C schedule, an application should have been filed by the appellant to the section concerned of the K.S.E.B. which would have thrown light as to whether permission was granted to draw electricity to the C schedule R.S.A. No.278/2013 & Cross Objection No.22/2013 -14- and if so when it was granted. The evidence on that point is completely lacking. Without permission of the Board, electricity line/cable line cannot be drawn through another man's property and that too to the C schedule well situated in yet another man's property.
16. The decision in Sree Swayam Prakash Ashramam and another v. G. Anandavally Amma and others - (2010) 2 SCC 689 has been relied upon by the learned senior counsel appearing for the appellant to buttress his submission that absence of pleadings in plaint regarding implied grant of easementary right cannot be a reason to reject the rights so claimed. But in the case cited supra though it was not stated that claim was founded on implied grant there was pleading to the effect that there was a grant. Here, the question is not whether there is a pleading or not but whether there is material to hold that there was implied grant as contended by the appellant. R.S.A. No.278/2013 & Cross Objection No.22/2013 -15-
17. The decision in Mathai v. Jordi Poulose - 2011 (2) KLT 605 has also been relied upon to fortify his submission that right of easement by grant need not be created by registered document. In the aforesaid case it was held that if a right is granted to lay pipes in the property by its owner to the neighbouring owner to take water to his property, the owner thereby creates a burden on his property and thus it becomes the servient tenement. The property of the neighbour for which the beneficial enjoyment is granted is the dominant tenement and thus the right created is a right of easement which is annexed to the land. Here, the position is different. No right was granted by the respondents or their predecessor-in-interest to the appellant and her husband to lay pipes in the B schedule property so as to take water from the C schedule well to the house in the A schedule.
R.S.A. No.278/2013 & Cross Objection No.22/2013 -16-
18. The decision of Anthappa Bhandary v. Poovu and other - AIR 1965 Mysore 124 has also been relied upon by the learned senior counsel appearing for the appellant. There it was held that the dominant owner has a right to do everything requisite to secure to himself the fullest advantage of his servitude, provided in exercising such a right he does not impose additional burden on the servient tenement. According to the appellant, she is entitled, under section 24 of the Easements Act, to do in the servient tenement all acts necessary to secure full enjoyment of the easements, subject to the limitation indicated in section 24.
19. The argument proceeds in the premise that since right to draw water was provided under Ext.A1 it must necessarily be inferred that at that time itself the pump set was fitted and water pipes were also laid and at any rate the right to draw water should take within it the right to take R.S.A. No.278/2013 & Cross Objection No.22/2013 -17- water to the house of the appellant by laying pipes in the B schedule property. Such an inference cannot be drawn since as found by the lower appellate court it is possible to draw water by conventional method and to carry it in pots or buckets to the house of the appellant. There is no material to hold that as on the date of Ext.A1 pipes were laid through the B schedule to take water. There is also no evidence to hold that electric lines, pipes were drawn underneath the B schedule land. Hence, the argument to the contrary advanced by the learned counsel for the appellant cannot be sustained.
20. In Anthappa's case the oil pump was situated for irrigating fields for about 30 years and on the basis of that finding, it was held that the defendants had acquired prescriptive right and so Anthappa's case cited supra is not applicable to the facts of this case.
R.S.A. No.278/2013 & Cross Objection No.22/2013 -18-
21. It is also argued that the grant of an easement is also a grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. Where the use of a thing is granted, everything is granted by which the grantee may have and enjoy such use. The ancillary right arises because it is necessary for the enjoyment of the right expressly granted. So far as the case on hand is concerned, as there is nothing on hand to show that at the time of Ext.A1, pump set was installed or that pipes were laid. Hence, it cannot be said that the right to draw water takes within it the right to take it through pipes, laying it in the 'B' schedule land. The question of ancillary easement commonly arises in connection with repairs, maintenance etc. If a person gives a license or right to lay pipes in his land to convey water, it would certainly include the right to enter that property for repairs or maintenance of pipes etc. But, so long as there is no evidence to show that pipes were R.S.A. No.278/2013 & Cross Objection No.22/2013 -19- laid and were in existence at the time of Ext.A1, the argument so advanced on behalf of the appellant cannot be countenanced.
22. The contention that if only the appellant is allowed to take water from the pipes and is also allowed to take the electricity to the pump sets through the cables laid underneath, she would get the fullest advantage of the easement granted under Ext.A1, cannot be accepted. Here, the dispute is not with regard to drawing a water, but with regard to laying of water pipes and electric cables underneath the soil in the B schedule property which was not provided as per Ext.A1. The contention that the interest of the dominant owner would be jeopardised by disallowing the taking of water through pipes, does not gain ground since no such right was given as per Ext.A1 nor can it be said that it is an ancillary right necessary for the enjoyment of the right to draw water, provided under Ext.A1. R.S.A. No.278/2013 & Cross Objection No.22/2013 -20-
23. It is in evidence that the appellant has got water connection to her house, whether it be from the Water Authority or from the Panchayath, and so the appellant does not require water to be drawn from the C schedule well, it is contended by the respondents. It is also pointed out that there is a well in the plaint A schedule property itself, but it is pointed out that during March, April and May it becomes dry. Anyway, it is not necessary to delve deep into those matters since the question is whether the appellant has got right to take water by laying pipes underneath the soil of the B schedule property.
24. The learned counsel for the respondents would submit that the courts below have analysed the pleadings and evidence in the correct perspective and no substantial question of law arises in this case. In order to entertain a Second Appeal the High Court should be satisfied that the case involves a substantial question of law and not a mere R.S.A. No.278/2013 & Cross Objection No.22/2013 -21- question of law. The proper test for determining whether a question of law is substantial is to find whether it directly or substantially affects the rights of the parties. An inference of fact from the recitals and contents of a document is a question of fact. But the legal effect of the terms of the document is a question of law. Construction of a document involving the application of any principle of law is also a question of law. Here, there was no misconstruction of a document or wrong application of a principle of law in construing the terms of Ext.A1 and as such it does not give rise to a question of law much less a substantial question of law.
25. The learned counsel for the respondents has also pointed out that no appeal was filed against the decree granted by the court below pertaining to the mandatory injunction based on the counter claim filed by the defendant and as such the decree granted against the appellant in the R.S.A. No.278/2013 & Cross Objection No.22/2013 -22- counter claim filed by the appellant would operate as res judicata. It is submitted that though grounds were raised in the appeal memorandum with regard to the challenge made against the mandatory injunction and the findings relied upon by the trial court, no separate court fee was paid and as such it has to be found that there was no appeal as against the mandatory injunction granted by the court below and if so to that extent the appeal would be barred by res judicata. In support of that submission, the learned counsel for the respondents has relied upon the decision of this court in N.P. Moideen v. K.Narayanan Nair - 1997 (2) KLJ 82.
26. As stated earlier there is a concurrent finding of fact that the appellant is not entitled to take water to the plaint A schedule property from the plaint C schedule well laying pipes underneath the B schedule property. The lower appellate court modified the decree allowing the appellant to R.S.A. No.278/2013 & Cross Objection No.22/2013 -23- draw water and to take water by conventional method. The Advocate Commissioner could find pulley, rope (coir) and bucket for drawing water from the well. It is argued on behalf of the appellant that if water is to be taken through the B schedule property the appellant or her men have to be permitted to pass through B schedule property which would be more inconvenient to the respondents. But in the cross objection the respondents have contended that admittedly there is a road immediately to the south of A, B and C schedule properties and so for drawing water by conventional method the parties can straight away enter into the Panchayat road and carry water to the appellant's house walking along the road.
27. Since Ext.A1 provides right to the appellant to draw water from the C schedule well, the lower appellate court is correct in holding that the appellant can draw water by conventional method. But the learned counsel for the R.S.A. No.278/2013 & Cross Objection No.22/2013 -24- respondents/cross objectors would submit that the lower appellate court was not justified in holding that the appellant can take water by conventional method using the B schedule property for having access to the C schedule well. According to the learned counsel since no such provision was made in Ext.A1, the lower appellate court should not have granted such a relief. Admittedly, the appellant and her husband are residing in the A schedule property allotted as per Ext.A1 and the well is situated in the C schedule property, beyond B schedule property held by the respondents. Therefore, if the appellant is given the right to take water then certainly it must take with in it the right to take water to the appellant's house, which can only be through the B schedule property but it can not be by laying pipes. It is true that there is a Panchayath road also, but the learned counsel for the appellant submits that it is very difficult to walk through that Panchayath road, carrying R.S.A. No.278/2013 & Cross Objection No.22/2013 -25- water. But at the same time the contention that the appellant can walk through the middle of the B schedule property for the purpose of taking water from the well, cannot be upheld. For that purpose a slight modification of the decree is required. Instead of straight away crossing the B schedule property, the appellant has to reach the southern boundary of the properties and walk along the southern boundary of the B schedule property and then reach the C schedule well, so that there would be no unreasonable restriction in the user of the B schedule property by the servient owner; namely the respondents.
28. Since the appellant has no right to lay pipes for taking water from the well to the appellant's house, the mandatory injunction granted by the courts below for removal of the pipes is well justified. Similarly, since the appellant has no right to have electric connection from her house to the pump set installed in the C schedule well by R.S.A. No.278/2013 & Cross Objection No.22/2013 -26- laying cables underneath the soil of the 'B' schedule property, the mandatory injunction directing removal of the same is also well justified. No substantial question of law arises in this case.
In the result, this Regular Second Appeal is dismissed. The Cross Objection is allowed in part, modifying the decree that the appellant's right to carry water by conventional method from the well to the appellant's house shall be along the southern boundary of the B schedule property.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj