T.M.MANI Vs. P.S.REJI

JUDGEMENT

(1.) The unsuccessful plaintiffs have instituted this Second Appeal impugning the concurrent findings of the trial court as well as the lower appellate court. The plaintiffs/appellants filed suit for injunction with the averment that plaint A schedule property belongs to the 1st plaintiff, who is claimed to be in possession of the same from 1969 onwards and that a building in the property is being used as go -down and office for the rubber business run by him. That B schedule property belongs to the 2nd plaintiff, which lies on the southern side of A schedule property and that the 2nd plaintiff is residing with family in the building situated therein. That C schedule property is said to be a water course through the southern side of A schedule and eastern side of B schedule, which is said to have a length of 80 ft. and width of 2.5 feet. That it is the only way for flow of water from the eve -drops of the plaintiffs' building and also waste water from the bathroom and kitchen portion. That the plaintiffs and the predecessors have been enjoying this water course for flow of water as easement, peaceably openly and as of right for the last more than three decades and that they have thus acquired prescriptive easement right. That the defendant attempted to obstruct the flow of water through C schedule and hence the plaintiffs have filed the suit for injunction.

(2.) The respondent herein/defendant filed written statement, inter alia, contending that the description of plaint A and C schedule properties is wrong and that there is no water course as referred to in C schedule. That the plaintiffs' property is lying about three feet lower level than the defendant's property and that the plaintiffs have destroyed the boundary wall of the defendant's property on its eastern end on 12.8.1991 and opened a new water channel and that it is this new water channel so unlawfully opened by the plaintiffs, which is described by them in the plaint as water course. The averment that foul water from the bathroom and kitchen is going through C schedule channel is wrong and that the plaintiffs have not acquired any easement right by prescription over plaint C schedule property. That it is also wrong to say that the defendant obstructed the flow of water and that the defendant has constructed boundary wall after obtaining permission from the authorities concerned, etc.

(3.) On the framework of these pleadings, three issues were framed by the trial court. Both sides adduced evidence, which consist of oral testimonies of PWs 1 to 3, DW -1 and further Exts.A -1 to A -5, B -1, B -2, C -1 and C -2 were also marked. The learned Munsiff, after appreciating the evidence, dismissed the suit finding that the plaintiffs have not acquired any easement right over C schedule property. The learned Munsiff has dismissed O.S.No. 674/1991 as per judgment dated 30.9.1994. Aggrieved by the same, the unsuccessful plaintiffs had instituted Appeal Suit, A.S.No. 87/1995 before the Principal Sub Judge, Kottayam and the said lower appellate court has also dismissed the said Appeal Suit as per the judgment dated 16.10.2000, affirming the considered view rendered by the learned Magistrate. Thus, it can be seen from a perusal of the impugned judgments of the courts below that both the courts below have concurrently made considered findings against the plaintiffs.