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2015 DIGILAW 508 (KER)

BHARGAVI AMMA v. ARBAHAM

2015-05-25

A.V.RAMAKRISHNA PILLAI

body2015
JUDGMENT A.V. RAMAKRISHNA PILLAI, J. 1. The 1st defendant in O.S. No. 675 of 1997 tried by the II Additional Munsiff's Court, Thrissur, is in appeal. 2. The plaintiff filed the suit alleging that he is the owner of the well situated on the western side of his property and the defendants have demolished the wall around the well on 20.03.1997 and they are attempting to fill up the well and to construct a building at that place. Therefore, the plaintiff prayed for a decree of permanent prohibitory injunction restraining the defendants from filling up or covering the well in any manner and also from contaminating the well water and from doing anything, which would reduce the utility of the well. He also prayed for a mandatory injunction against the defendants to restore the well to its original position. 3. During the course of the suit, the plaint was amended incorporating the contention that the defendants did not obtain permission from the municipality to reclaim the well; and therefore, the attempt of the defendants to construct the building and to fill up the well is in violation of the Kerala Building Rules. It was further alleged that after filing the suit, the defendants demolished the eastern compound wall, which was connected to the western wall of the plaintiff's building, as a result of which, the plastering on the western wall of the plaintiff's building was destroyed. It was further alleged that the defendants are not allowing the workers of the plaintiff to plaster the western wall of the plaintiff's building. Therefore, an additional prayer was included to restrain the defendants from causing obstruction to the workers of the plaintiff in plastering the western side of the western wall of the building of the plaintiff. 4. The trial court, after raising proper issues for trial, permitted both sides to adduce evidence. At the trial, PW1 & DW1 were examined. Exts.A1 to A6, Exts.B1 & B2 and Exts.C1 series & C2 were marked. 5. The trial court, after considering the evidence, granted a decree restraining the defendants from filling up the well, from covering any portion of the well and from doing any act, which would contaminate or reduce the utility of the water. The defendants were also directed by a decree of mandatory injunction to restore the wall around the well to its original position within a time frame. 6. The defendants were also directed by a decree of mandatory injunction to restore the wall around the well to its original position within a time frame. 6. The 1st defendant took the matter in appeal. The Subordinate Judge, who heard the appeal, dismissed the same, confirming the decree and judgment passed by the trial court. The said judgment and decree are under challenge in this regular second appeal. 7. I have heard Mr. P.K. Ravi Sankar, the learned counsel for the appellant and Mr. G. Unnikrishnan, the learned counsel for the respondent. 8. It was argued by the learned counsel for the appellant that as per the plaint averments, the respondent claimed proprietary right over the well. However, when he realized that he would not be able to prove any proprietary right over the said well, during the course of the argument, he confined his claim to easement right to use the aforesaid well. It was argued that once the respondent failed in establishing the right over the well, the courts below were not justified in upholding the right of the respondent to use the well in dispute. 9. The claim of the respondent was that he obtained right over the well on the basis of Ext.A1 sale deed dated 08.01.1981 executed by Smt. Thailambal, who is the predecessor in interest of the respondent. The appellant alleges that prior to that, the mother of the appellant obtained the property now owned by her as per Ext.B2 dated 13.02.1978 from the aforesaid Smt. Thailambal. Thereafter, the mother of the appellant sold the same to the appellant on 08.08.1979 as per Ext.B2 assignment deed. Therefore, according to the appellant, it could be seen that as on the date of Ext.A1, Smt. Thailambal had no right over the property, in which the well is situated, as she had already sold the property to the mother of the appellant. Therefore, according to the appellant, the recital in Ext.A1 that the respondent was given a share in the well, is of no consequence and the same do not confer any legal right on the respondent. Therefore, it was argued that in the absence of any right to the respondent to use the disputed well, the courts below erred in finding that the respondent has right to use the well. Therefore, it was argued that in the absence of any right to the respondent to use the disputed well, the courts below erred in finding that the respondent has right to use the well. In support of the argument, it was asserted by the learned counsel for the appellant that apart from the proprietary right as claimed in the plaint, the respondent did not plead or prove that he had acquired any prescription or by grant, any easement right to draw water from the well. 10. It is settled law that the conception of easement right cannot go with the claim of title as they are contradictory to each other. A right to property under a valid title and a right of easement are totally distinct and different. One is the right to possess, enjoy and use the land in assertion of that right to the exclusion of others. In the case of easement, it is a right in, to or over the property of another. It is argued that even assuming that the plaintiff was using the disputed well, it is an incohate right, which has not been perfected by the completion of a statutory period. 11. This Court, in Krishna Pillai vs. Kunju Pillai, 1990 (1) KLT 136 , has taken a view that the incohate right can also be protected. Subsequently, it was distinguished in Ramanunni Vaidyar vs. Govindankutty Nair, 1998 (2) KLT 47 placing reliance on a Full Bench decision of the Hon'ble Madras High Court in Venkatanarasimharaju vs. Ramaswami, AIR 1941 Mad. 176 . It was observed that when the right is not enjoyed for a specific period, there is no right of action for interference. It was held that on the basis of an incohate right, which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user as against the owner of that land. 12. It is crucial to note that the respondent did not pursue his contention that the well or any portion of it, is within the boundaries of the suit property. The lower court interpreted Ext.B2 document on the basis of Ext.A1, which is a document executed subsequently. As rightly pointed out by the learned counsel for the appellant, Ext.B2 does not admit any ambiguity requiring any interpretation. The lower court interpreted Ext.B2 document on the basis of Ext.A1, which is a document executed subsequently. As rightly pointed out by the learned counsel for the appellant, Ext.B2 does not admit any ambiguity requiring any interpretation. Moreover, a document executed three years after Ext.B2 cannot be looked into to understand the interest of the parties at the time of its execution. Though the respondent failed to establish the source of any legal right to use the well before any of the courts below, the lower appellate court observed that Smt. Thailambal had retained some right over the well. Once the respondent, who is the plaintiff, has failed in establishing that she has any proprietary right over the well in dispute, the courts below were not at all justified in holding that the respondent had a right to use the disputed well. Therefore, this Court is of the view that the decree granted by the courts below on an erroneous finding has to go. In the result, the appeal is allowed. The judgments of the courts below granting the decree in favour of the respondent are set aside. Accordingly, the suit is dismissed.