Kerala High Court
Prasannan, (Died) (Lhr Recorded) vs Sivadasan on 31 August, 2022
Author: M.R.Anitha
Bench: M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
RSA NO. 47 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 18.02.2015 IN A.S. NO.29/2012 ON THE FILE
THE SUBORDINATE JUDGE'S COURT, KARUNAGAPPALLY
AGAINST THE JUDGMENT AND DECREE DATED 21.6.2012 IN O.S. NO.39/09 ON THE FILE OF
MUNSIFF'S COURT, SASTHAMCOTTA
APPELLANTS/RESPONDENTS 1 & 2/PLAINTIFFS:
1 PRASANNAN, (DIED) (LHR RECORDED)
AGED 40 YEARS
S/O.SADANANDAN, RESIDING AT KANNANKARA VEEDU, NADUVILE MURI, WEST
KALLADA VILLAGE, WEST KALLADA PO, KOLLAM DISTRICT.
(2ND APPELLANT IS RECORDED AS THE SOLE LEGAL HEIR OF THE DECEASED
1ST APPELLANT AS PER ORDER DATED 12.10.2021 IN MEMO DATED
29.09.2021.)
2 USHA, AGED 38 YEARS
W/O.PRASANNAN, RESIDING AT KANNANKARA VEEDU, NADUVILE MURI, WEST
KALLADA VILLAGE, WEST KALLADA PO, KOLLAM DISTRICT
BY ADVS.
(PARTY)
ARUN BABU
RESPONDENTS/APPELLANTS 1 TO 3/RESPONDENT NO.3/DEFENDANTS 1 TO 4:
1 SIVADASAN @ SIVADASAN ACHARI, AGED 58 YEARS
S/O.SANKU ACHARY, NANADANA BHAVANAM, HOUSE NO.439/VIII, WEST
KALLADA PANCHAYATH, AITHOTTUVA MURI, WEST KALLADA PO,
KOLLAM, PIN 691500
2 BHAVANIMAYAN, AGED 35 YEARS
S/O.SIVADASAN ACHARI, NANADANA BHAVANAM, HOUSE NO.439/VIII, WEST
KALLADA PANCHAYATH, AITHOTTUVA MURI, WEST KALLADA PO,
KOLLAM, PIN 691500
3 BHAVANANTHAN
AGED 31 YEARS
S/O.SIVADASAN ACHARI, NANADANA BHAVANAM, HOUSE NO.439/VIII, WEST
KALLADA PANCHAYATH, AITHOTTUVA MURI, WEST KALLADA PO,
KOLLAM, PIN 691500
4 ASSISTANT ENGINEER, KERALA WATER AUTHORITY, SASTHAMKOTTA,
SASTHAMKOTTA PO, KOLLAM, PIN 690521
BY ADVS.
SRI.C.HARIKUMAR(CAVEATOR FOR R1 TO R3)
SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY - FOR R4
SRI.MANOJ RAJAGOPAL - FOR R1 TO R3
SRI.MANU RAMACHANDRAN - FOR R1 TO R3
P.M.JOHNY, SC, KERALA WATER AUTHORITY -FOR R4
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON 31.8.2022 DELIVERED THE FOLLOWING:
RSA No.47 of 2016
2
JUDGMENT
Dated this the 31st day of August, 2022 This Regular Second Appeal has been directed against the judgment and decree in A.S.No.29/2012 on the file of Subordinate Judge's Court, Karunagappally which arose out of judgment and decree in O.S.No.39/2009 on the file of Munsiff's Court, Sasthamcotta.
2. The suit is one for permanent prohibitory injunction. Plaintiffs are the appellants. (Parties would hereinafter be referred as per their status before the trial court).
3. Plaintiffs have got right of easement for ingress and egress through the plaint schedule pathway which is running through the property of defendants as per compromise decree in O.S.No.107/2000 of the Munsiff's Court, Sasthamcotta. During the pendency of the proceedings, plaintiffs in O.S. No.107/2000 transferred the property to the defendants in the suit and hence defendants are bound by the decree in O.S.No.107/2000. Plaintiffs intend to draw pipeline through the pathway provided in the compromise decree in RSA No.47 of 2016 3 O.S.No.107/2000 since he has no other source of water for satisfying his basic needs. But defendants obstructed him from drawing pipeline through the pathway. Hence the plaintiffs filed the suit for restraining the defendants 1 to 3 from causing any obstruction in drawing the pipeline through the pathway provided in the decree. Fourth defendant is the Kerala Water Authority.
4. Defendants 1 and 3 filed written statement contending that the suit is not maintainable. The defendants have no knowledge about the decree in O.S.No.107/2000. Third defendant purchased 4 ares 72 sq. mtrs of landed property and thereafter he is in possession and enjoyment of the said property. No pathway is going through the property of the defendants and the plaintiffs are going through their property with their consent for ingress and egress. It is also contended that plaintiffs have no right to draw any pipeline through the pathway.
5. Defendants 2 and 4 remained ex parte. PW1 examined and Ext.A1 marked from the side of the plaintiffs. Third defendant was examined as DW1.
6. Trial court on evaluating the facts and RSA No.47 of 2016 4 circumstances and evidence found that the right of plaintiffs over the plaint schedule property has been proved through Ext.A1 and the drawing of pipeline for getting water to the plaintiffs for satisfying their basic needs will not tend to the total destruction to the plaint schedule pathway and that cannot be considered as a construction which is prevented in Ext.A1. The trial court also taken notice of the fact that an electric line has been drawn through the plaint schedule pathway to the house of the plaintiffs. Hence it was found that the defendants have no right to obstruct the drawing of the pipeline through the plaint schedule pathway for which they have got easement by prescription as per Ext.A1 decree and accordingly the suit was decreed.
7. Against which, defendants filed appeal and the first appellate court by the impugned judgment reversed the judgment and decree passed by the learned Munsiff and found that the plaintiffs have no legal right to draw water connection through plaint schedule property and consequently are not entitled to get any injunction as prayed for and accordingly the suit was dismissed. Aggrieved by the same, appellants/ plaintiffs approaches this court in second appeal. RSA No.47 of 2016 5
8. At the time of admission this court formulated the following substantial questions of law:
(1) When right over a pathway is granted by way of compromise decree and the plaintiff has been using the pathway as per the compromise, is it proper on the part of the respondents to obstruct drawing of water connection through the aforesaid pathway for the use of the plaintiffs?
(2) When the factum of existence of pathway over the plaint schedule property is specified by virtue of a compromise decree was the first appellate court right in reversing the decree of the trial court in holding that the issue is restricted to passage alone?
9. Lower court records were called for and perused. Both sides were heard.
10. According to the learned counsel for the appellant as per Ext.A1 compromise an easement by grant over plaint schedule pathway has been given to the plaintiff by the predecessor in interest of the defendant. Hence, he has every right to do all reasonable acts necessary for the beneficial RSA No.47 of 2016 6 enjoyment of his dominant heritage which includes according to him digging the plaint schedule pathway for drawing a pipe line also. So, according to him the finding of the 1 st Appellate Court that his right is only to use the plaint schedule property as passage alone is illegal and unsustainable. He would also contend that the water is the basic need of a human being and for that he has every right to approach the Civil Court for his redressal. It is also contended that the right to draw water is a fundamental right and when such fundamental right is violated it can be enforced through a civil court. Hence, finding of the 1st Appellate Court that fundamental right cannot be enforced through a civil court and only a civil right can be enforced etc. are not sustainable in law.
11. The learned counsel also placed reliance on Section 4 and 17 of the Indian Easements Act (Act No.V of 1882) (in short the 'Act'), quoted by the learned Munsiff. Further the learned counsel placed reliance on Section 38 and Section 53 of the Kerala Water Supply and Sewerage Act, 1986 to support his contention. The learned counsel also placed reliance on Bhargavi Amma v. Abraham [2021 (6) KHC 388 : 2021 (5) KLT online 1178].
RSA No.47 of 20167
12. The learned counsel for the respondent on the other hand would contend that the entire plaint averments is based on Ext.A1 the compromise decree by which right of easement by grant has been given to the plaintiff over the plaint schedule path way. According to him as per Ext.A1 only one meter width way for passage alone has been granted and as per condition No.2 in Ext.A1 there is a specific stipulation that without the knowledge of the predecessor of the defendant, the plaintiff should not do any construction work or to use excess width of way than agreed. So, according to him since the grant has been given with respect to specific width of way with an express condition not to use the way exceeding the width agreed and prohibiting from making any construction in the way without the knowledge of the predecessor of the defendant, plaintiff has no manner of right to draw the water line through plaint schedule pathway.
13. He would also contend that before the trial court as well as the 1st Appellate Court, no reliance was placed on any of the provisions of Kerala Water Supply and Sewerage Act, 1986 and it is for the first time such an argument is raised in the second appeal.
RSA No.47 of 20168
14. First of all the argument of the learned counsel basing on Kerala Water Supply and Sewerage Act, 1986 can be dealt with. Section 38 of the said Act is relevant in this context to be extracted which reads thus:
Supply of Water by the Authority-
1) The authority shall on an application made to it by the owner of any premises or by the occupier with the consent in writing of the owner thereof, grant supply of water for domestic purposes on such terms and conditions as may be provided by regulations.
2) The authority may on application made in that behalf, grant supply of water for any purpose other than domestic purposes.
3) The supply of water for domestic or other purposes shall be subject to such terms and conditions as may be provided by regulations.
4) Notwithstanding anything to the contrary contained in the regulations referred to in sub-
section (5), the Authority may supply water to the Government or any local authority or other statutory corporation or to any educational or charitable institution on such terms as to payment and as to the period and conditions of supply as may be agreed upon.
5) The ownership and control over the pipe line up to the meter point shall be vest with the Authority even though the cost of any connection RSA No.47 of 2016 9 or part thereof has been borne by the applicant.
15. According to the learned counsel, as soon as an application has been made to the authority by the owner of any premises or by the occupier, the authority has to grant supply of water on such terms and conditions. Since, plaintiff is the owner of the premises to which the water line is to be drawn he is not bound to obtain the consent of the owner and authority cannot insist for consent of the owner of the pathway for drawing the line to his house.
16. He would also drew my attention to the definition of occupier in Section 2(16) of the Act which reads thus:
"occupier", in relation to any premises, includes-
(a) any person for the time being paying or liable to pay rent or any portion thereof to the owner in respect of those premises;
(b) the owner who is in occupation of the premises'
(c) a tenant of the premises who is exempt from payment of rent;
(d) a licensee who is in occupation of the premises; and
(e) any person who is liable to pay damages to the owner in respect of use and occupation of the premises.RSA No.47 of 2016 10
Plaintiff being the owner of the house to which water connection is sought for, he need not obtain consent of the owner since he is not a mere occupier, it is contended.
17. Section 53 which comes under Chapter VIII dealing with General Provisions with respect to power of entry for survey and inspection of the officer of the authority and for convenience, it reads as follows:
(53) Power of entry, survey, inspection, etc.--
(1) Any Officer of the Authority authorised by it in that behalf may with or without assistance of workmen enter into or upon any premises in order--
(a) to make any inspection, survey, measurement or enquiry ;
(b) to take level ;
(c) to dig or bore into the sub-soil ;
(d) to set out boundaries and intended lines of work;
(e) to mark such levels, boundaries and lines by placing marks and cutting trenches ; or
(f) to do any other thing necessary for the purpose of this Act or any rule or regulation made thereunder.RSA No.47 of 2016 11
Provided that--
(i) no such entry into a building shall be made betweensunset and sunrises;
(ii) no dwelling house or place shall be so
entered except with the consent of the
occupier thereof or without giving the
occupier at least twenty four hours notice of the intention to make such entry;
(iii) reasonable opportunity and facility shall be allowed to the women occupying any part of a dwelling house to withdraw; and
(iv) due regard shall, so far as feasible, be paid to the social and religious customs and usages of the occupants of the premises entered into.
(2) Whenever any officer of the Authority authorized under subsection (1) enters into or upon any premises in pursuance of that sub section, he shall, at the time of such entry pay or tender payment for the damage, if any, to be caused by any act as aforesaid and in case of dispute as to the sufficiency of the amount of compensation such dispute shall be referred to the Chairman whose decision thereon shall be final.
(3) When any person is entitled to enter into or open any premises in exercise of the powers under sub-section (1) he may also enter in similar manner into or upon any adjoining premises for any work authorized by or under RSA No.47 of 2016 12 this Act, or for the purpose of depositing therein any soil, stone or other materials or for obtaining access to such work or for any other purposes connected with the execution of the same.
(4) It shall be lawful for any officer authorized in this behalf by the Authority to make any entry into any place to open or cause to be opened any door, gate or other barrier,--
(a) If he considers the opening thereof necessary for thepurpose of such entry, and
(b) If the owner or occupier is absent, or beingpresent refuses to open such door, gate or barrier.
(5) Before making any entry into any such place or opening or causing to be opened any such door, gate or other barrier under sub-section (4), the person authorized in this behalf shall call upon two or more persons of the locality in which the place to be entered into is situated to witness the enter or opening and may issue an order in writing to them or any of them so to do.
(6) The officer so authorized shall in exercise of any power conferred by sub-section (4) do as little damage as may be possible and compensation for such damage shall be payable by the Authority to the owner or occupier of such premises or to both and in the case of any dispute as to the sufficiency of the amount of compensation, the RSA No.47 of 2016 13 dispute shall be referred to the chairman, whose decision thereon shall be final.
18. So, according to the learned counsel as per Section 53 the authorized officer has powers to enter into any premises on getting an application for doing any other thing necessary for the purpose of this act or any rule or regulation. Hence, once an application is received for water connection the authorised officer has powers to enter into any premises for doing any act for the purpose of drawing water connection.
19. The learned counsel for the respondent on the other hand would contend that chapter VIII deals with general provisions with respect to power of entry for the purpose to survey, inspection etc. and it has no application with respect to supply of water for domestic purposes. The learned counsel for the respondent also would contend that the premises provided under Sub Section 1 of Section 38 is the property through which the line is to be drawn.
20. On evaluating Chapters VI and VIII it could be seen that chapter VI deals with water supply including supply of water for domestic purposes and supply of water to flats and multistoried buildings etc. and it has no connection with RSA No.47 of 2016 14 general provisions coming under Chapter VIII which deals with the general provisions with respect to the power of entry, inspection, survey etc. of any authorised officer with or without assistance of workmen to enter into the premises. If the argument of the learned counsel for the appellant is accepted any authorized officer can enter anybodies property for drawing pipe line and that does not appear to be the intention of the legislature and general provisions coming under Chapter VIII provides the powers of the authorised officer and his workmen to enter into any premises for the purpose of inspection, survey measurement enquiry etc.
21. So, on evaluating the rival contentions, I am of the considered view that what Section 38 provides is that on getting an application for domestic connection for water supply for drawing the line if it is not to the owner of the property and is the occupier, he should get consent in writing of the owner. Word "premises"has been defined as in Section 2 (xviii) in Kerala Water Supply and Sewerage Act, 1986 as follows:
(xviii) "premises" means any land or building and includes -
(a) the garden, land and outhouses, if any, appertaining to a building or part of RSA No.47 of 2016 15 a building; and
(b) any fittings affixed to a building or part of a building for more beneficial enjoyment thereof;
22. Obviously the land through which line to be drawn also must be of the owner or the occupier. Otherwise, it will create an anomalous situation since a person who is residing in a remote area can also simply apply for water connection and authority concerned will have to dig the property of strangers for drawing the water line to the property of the person who applied for domestic connections. So provisions of the Act has no application with respect to the right of easement of a party to draw the pipe line.
23. The learned counsel for the plaintiffs also relied on Bhargavi Amma v. Abraham [2021 (6) KHC 388] wherein it has been held that a licence given by the owner of well to immediate neighbour to fix up a water pump inside the well for drawing drinking water is not revocable since when the defendants had consented plaintiffs to draw drinking water for his daily use to his house and permitted the plaintiffs to fix a water pump inside the well with electricity connection from defendants' house, right conferred on plaintiffs is one of a RSA No.47 of 2016 16 basic human right and that cannot be revoked. It is also held that when defendants permitted to draw water from their well knowing that plaintiffs have no other source of drinking water it is an extreme case of acquiescence or estoppel by conduct from which a licence may be implied.
24. Hence the question for determination revolves on the right of easement by grant provided to plaintiff in Exhibit A1. Hence decision afore has no application in the case on hand because plaintiff is claiming protection under Exhibit A1 as an easement by grant. It is not a case of consent and acquiescence or licence.
25. Learned counsel for the defendants would contend that since an easement of grant is a matter of contract, parties to the contract are bound by the terms by which grant has been created, and, if the user of the grant is restricted or limited through conditions in the contract, parties will be bound by those conditions.
26. So, according to defendant, since as per Ext.A1 right has been given to the plaintiffs over plaint schedule property only for passage and there is also an express condition not to make any constructions without the knowledge RSA No.47 of 2016 17 of the plaintiff and to use the way in excess width, there is express bar for drawing the pipe line by digging the way which has been provided only for passage. It is not in dispute that drawing the pipeline by digging will amount to 'construction'. Whether that can be permitted as per the recitals in Exhibit A1 is the crucial issue. For that law of easement, the extent of easements and how for a dominant owner can increase the easement granted etc. would arise for consideration.
27. The Indian Easement Act, 1882 does not contain a term as 'easement by grant'. Chapter II of the Indian Easements Act, 1882 (in short, the Act) deals with the imposition, acquisition and transfer of easements. Section 8 provides that an easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed. So the easement by grant derives from Section 8 by which an easement can be imposed and can be created by an express grant or reservation. The owner of a servient tenement can by his unilateral act can impose an easement on his property even though the owners of the dominant tenement are not parties to such a transaction. RSA No.47 of 2016 18
28. Section 22 of the of the Easements Act provides that the dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined. Section 24 of the Act provides that the dominant owner is entitled, as against 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 caused by the act to the servient heritage. It further provides that accessory rights are the rights to do acts necessary to secure the full enjoyment of an easement.
29. Section 28 of the Act deals with the extent of easements and mode of their enjoyment, the relevant portion reads as follows:
28. Extent of easements:- With respect to the extent of easements and the mode of their enjoyment, the following RSA No.47 of 2016 19 provisions shall take effect:--
Easement of necessity.--An easement 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 rights were 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 or 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 was made;
xxxxx
30. Section 29 of the Act is also relevant to be extracted, which reads thus:
RSA No.47 of 201620
29. Increase of easement.--The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement.
Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the easement is proportionately increased, and if the dominant heritage is diminished by dilluvion, the easement is proportionately diminished.
Save as aforesaid, no easement is affected by any change in the extent of the dominant or the servient heritage.
31. So, from the above, it could be gathered that there is express bar under Section 29 of the Act to the dominant owner to alter or add to the dominant heritage and increase an easement. Second paragraph of Section 29 further make it clear that where an easement has been granted or bequeathed and its extent is proportionate to the extent of the dominant heritage, if the dominant heritage is increased by alluvion, the easement is proportionately increased, and if the dominant heritage is diminished by dilluvion, the easement is RSA No.47 of 2016 21 proportionately diminished. Except as otherwise, no easement is affected by any change in the extent of the dominant or the servient heritage.
32. Here, the present case will not come under second paragraph of Section 29 since the plaintiffs have no case of increase of dominant heritage by alluvion so as to proportionately increase the easement provided. Section 22 of the Act expressly provides that the dominant owner should exercise his right in the mode which is least onerous to the servient owner; and it also provides that when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, at the request of the servient owner, the dominant owner is bound to confine the easement to a determinate part also. So Section 22 of the Act cautions the dominant owner to enjoy the easement which is least onerous to the servient owner.
33. Section 28 of the Act also expressly provides that all easements other than easement of necessity and the mode of its enjoyment must be fixed with reference to the probable intention of the parties and the purpose for which right was imposed or acquired. It also points that in the absence of any RSA No.47 of 2016 22 evidence as to such intention and purpose in the case of right of way, a right of way of any kind does not include of right of way of any other kind.
34. Section 24 though entitles a dominant 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 without detriment to the dominant owner or 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.
Illustration (a) to Section 24 is relevant in this context to be extracted, which reads thus:
"(a) A has an easement to lay pipes in B's land to convey water to A's cistern. A may enter and dig the land in order to mend the pipes, but he must restore the surface to its original state."
35. So it would indicate that in order to lay pipes by A through the property of B, there should have right of easement. Then only the law enables him to enter the property of A and dig the land in order to mend the pipes and in such circumstances he is bound to restore the surface to its RSA No.47 of 2016 23 original state also.
36. So a conjoined reading of the above provisions would leave no room for doubt that in order to lay pipes over another's land the dominant owner should have a right of easement over the latter's property.
37. In the present case, plaintiffs relies on Ext.A1, the compromise, as the easement by grant given by the predecessor of the defendants for passage and the contention of the plaintiffs is that once plaint schedule way has been granted as passage to the plaintiffs property, he is entitled to draw a pipeline through the passage so granted by the predecessor of the defendants. But Section 28 of the Act specifically provides that extent of easements and the mode of its enjoyment is fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired. It also expressly provides that in the absence of evidence as to such intention and purpose a right of way of any kind does not include a right of way of any other kind.
38. So Ext.A1 would make the intention of the parties very clear that a 1 mtr. Width pathway has been granted to the RSA No.47 of 2016 24 plaintiffs by the defendants' predecessor for ingress and egress and it is aslo specifically provided that without the knowledge of the plaintiffs the defendants (who is the plaintiffs herein) cannot do any construction activities or use the way in excess of the width that has been granted. So the intention of the parties at the time of execution of Ext.A1 is very explicit that it has been provided only for ingress and egress to the plaintiffs property and there is also a prohibition for making any construction or using in width excess than that is provided without the knowledge of the plaintiffs. So as per Section 28 of the Act the right of way granted for passage in Ext.A1 to the plaintiffs by the defendants' predecessor is only for passage and not for any other kind. The drawing of pipeline through the passage will definitely come within the meaning of "any other kind" as provided under clause (a) of Section 28.
39. Illustration (a) to Section 24 also would make it clear that in order to lay pipeline through the another's land there should have a right of easement. It would further make it clear that only if such an easement to lay pipes through another's land is in existence the dominant owner can enter and dig the land in order to mend the pipes.
RSA No.47 of 201625
40. From the above discussion of law and facts, the reasonable conclusion would only be that when a right of easement by grant over plaint schedule way has been given to the plaintiffs as per Ext.A1 by the predecessor in interest of the defendants, the intention of the parties is to use it as a passage alone and not for any other purpose including drawing of pipeline. Of course, with the knowledge or informing the defendants the plaintiffs can with his permission extent the easement granted as per Ext.A1. But without informing him or without the knowledge of the defendants the law does not permit the plaintiffs to increase the extent of easement of passage provided in Ext.A1 by drawing a pipeline which will amount to exercise of easement of any other kind (of drawing the pipeline).
41. The learned counsel for the plaintiffs also would contend that water is a basic need and is a fundamental right and hence when there is violation of the same it can be enforced through a civil court. Article 21 of the Constitution of India provides protection of life and personal liberty and a citizen cannot live without water and it would definitely come under the basic need of a human being. In State of RSA No.47 of 2016 26 Karnataka v. State of Andra Pradesh [2000 (1) KLT OnLine 937 (SC)] it has been observed that there is no dispute that under the constitutional scheme in our country right to water is a right to life and thus is a fundamental right. But when there is violation of fundamental rights, it has to be enforced through a constitutional court and not through civil court. Moreover, basic need is water. Anyhow, it has come out during argument that plaintiff has filed a writ petition in this regard and the same is pending. So, I am leaving that question open.
42. It has already been found that the right of the plaintiffs, as per Ext.A1, is only to use the plaint schedule property as a passage and they are not entitled to extent the same so as to draw a pipeline without the knowledge of the defendants, the servient owner of the property.
In the result, appeal is found to be devoid of any merit and hence dismissed no cost.
Sd/-
M.R.ANITHA JUDGE SMF