THAJUDEEN Vs. MOHAMMED HANEEFA

JUDGEMENT

(1.) The appellants are the plaintiffs in O.S.No.387/1992 on the files of the Principal Munsiff's Court, Palakkad. The aforesaid suit was one for prohibitory injunction restraining the defendants from closing the plaint 'B' schedule canal used for draining out water from the plaint 'A' schedule property. According to the plaintiffs, they are conducting an industrial unit in 'A' schedule property. The defendants' property is situated on the east of 'A' schedule, which lies on a lower level than plaint 'A' schedule property. The slope of 'A' schedule property is from south to north and from west to east. Rain water and water from bathroom and kitchen from plaint A schedule property flows through the 'B' schedule canal situated in the defendants' property and reaches at the municipal drain on the east. Apart from 'B' schedule canal, there is no other way from 'A' schedule property to discharge water. The plaintiffs and their predecessors are flowing rain water and sullage water through 'B' schedule canal for decades, openly, uninterruptedly and feasibly and nobody has any right to obstruct the same. Now the defendants are trying to close 'B' schedule canal. If the canal is closed, the legal right of the plaintiffs will be infringed as the plaintiffs have acquired Easement right by prescription to drain out rain water and dirty water through 'B' schedule canal. Hence the suit was filed seeking an injunction, as referred above.

(2.) In the written statement, the defendants contended that the plaintiffs have caused alteration of 'A' schedule property by making additional constructions. There are two sheds in the property of the defendants. To drain out water from the eaves of the said sheds, the defendants' father had constructed a canal on the western side of the sheds. The canal belongs to the defendants. It is not correct to say that the defendants' property lies on a lower level than 'A' schedule property. On the other hand, according to the defendants, the plaintiffs' property is lying at a lower level than the defendants' property. The plaintiffs have never drained out any water to the defendants' property. They have no right of Easement over 'B' schedule canal. After purchasing the property by the plaintiffs when their employees began to reside there, all sorts of sullage water containing faecal matter is being drained out through 'B' schedule canal causing nuisance to the defendants and the plaintiffs have no right to drain out sullage water through 'B' schedule canal.

(3.) On the rival pleadings, both parties adduced evidence and after evaluating the evidence, on record, the trial court decreed the suit in part, restraining the defendants from closing 'B' schedule canal and from interfering with the usage of canal; but, made it clear that the plaintiffs have no right to discharge filthy water through 'B' schedule canal. Feeling aggrieved, the plaintiffs filed Appeal Suit No.111/2000 before the I Additional District Court, Palakkad and the defendants filed cross-appeal. After reappreciating the evidence on record, the appellate court dismissed the suit and allowed the cross- appeal. The legality and correctness of the findings, whereby the courts below took divergent views, are challenged in this Regular Second Appeal.