AJIKUMAR Vs. SOMAN NAIR

JUDGEMENT

(1.) The defendant in a suit for declaration and injunction, both mandatory and prohibitory, is the appellant in this appeal.

(2.) The plaint schedule item No.1 property belongs to the plaintiffs. The plaintiffs are cultivating plantain and tapioca in the plaint schedule item No.1 property. There is a panchayat road on the northern boundary of the plaint schedule item No.1 property. The panchayat road is constructed almost 2 1/2 feet above the level of the plaint schedule item No.1 property. The plaint schedule item No.2 property which is lying on the immediate north of the panchayat road belongs to the defendant. The properties on the south of the panchayat road including the plaint schedule item No.1 property lie at a higher level than the properties on the north of the panchayat road including the property of the defendant. Before the formation of the panchayat road, the water collected in the plaint schedule item No.1 property used to flow naturally to the plaint schedule item No.2 property through a defined water channel and used to reach the water channel on the side of the Kaippattoor ­ Vallikkode PWD road lying on the east of the plaint schedule item No.2 property. The plaint schedule item No.3 is the water channel in the plaint schedule item No.2 property. When the panchayat road was constructed about 30 years ago in the east -west direction, a pipe having a diameter of 70 cms. was installed beneath the road to ensure the free flow of water from the properties on the south of the panchayat road.

(3.) According to the plaintiffs, the plaint schedule properties are paddy fields and prior to the institution of the suit, the defendant reclaimed the plaint schedule item No.2 property. It is also the case of the plaintiffs that on account of the aforesaid conduct of the defendant, the natural flow of water from the properties on the south of the panchayat road was obstructed and as a result, water began to stagnate in the plaint schedule item No.1 property, causing damage to the cultivation therein. The suit was filed, in the circumstances, claiming a declaration of the natural right of the plaintiffs for draining out water from plaint schedule item No.1 property through the plaint schedule item No.3 water channel situated in the plaint schedule item No.2 property. A decree of mandatory injunction directing the defendant to restore the plaint schedule item No.2 property as also the plaint schedule item No.3 water channel to its original position and a decree of permanent prohibitory injunction restraining the defendant from causing obstruction to the natural flow of water through the plaint schedule item No.3 water channel were also sought. After the suit, the plaint was amended and a prayer for recovery of Rs.80,000/ - towards damages caused to the plaintiffs on account of the conduct of the defendant in obstructing the flow of water was also sought.