VISWANATHAN Vs. M.K.SREEDHARAN NAMBIAR

JUDGEMENT

(1.) The appellants are the defendants in OS 205/2011 of the Court of the Munsiff, Vadakara (Trial Court) and the appellants in AS 13/2013 of the Court of the Subordinate Judge, Vadakara (Lower Appellate Court). The respondent in the second appeal was the plaintiff before the Trial Court and respondent before the Lower Appellate Court. The parties are referred to as per their status in the original suit.

(2.) The plaintiff had sought a decree for permanent prohibitory injunction to restrain the defendants and their men (i) from blocking the pipe fixed on the northern and north-eastern compound wall of the plaint schedule property for the free flow of rain water to the lane on the northern side, (ii) from blocking or preventing the flow of rain water from the plaint schedule property through the lane, (iii) from causing any damage to the compound wall of the plaint schedule property, and (iv) from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property.

(3.) The concise facts in the plaint, which are relevant of the determination of the appeal, are: the plaintiff is the owner in possession of the plaint schedule property having an extent of 18 cents confined within specified boundaries, which he obtained pursuant to a compromise decree. The plaint schedule property is lying at a lower level than the tar road of the Vadakara Municipality. The plaint schedule property has a slope towards northern side from time immemorial. During the rainy season, the water that accumulates in the plaint schedule property gets discharged through the pipes fitted in the compound wall, to the narrow unused lane situated between the property of the plaintiff and the defendants, and lying on the northern and north-eastern corner of the plaint schedule property; and from there it flows through the culvert beneath the tar road and passing through the side of the Paravanthala Temple. Rain water from the adjacent properties also flow through the lane. There are retaining walls on the eastern and northern boundaries of the plaint schedule property. The property situated on the northern side of the plaint schedule property belongs to the first defendant. Two years prior to the institution of the suit, the first defendant constructed a house in his property. He brought soil to the property and widened the lane. Thereafter, he along with his brother " ' the second defendant - widened the lane for using it as an entry to his property. On 4.12.2011, the plaintiff saw the defendants blocking the mouth of the pipe in his compound wall. Although the plaintiff requested the defendants to remove the blockage, they threatened him and did not remove the same. The defendants have no manner of right to block the free flow of water from the plaint schedule property through the lane. Hence, the plaintiff is entitled to a decree as prayed for in the plaint.