AYUSUMMA AND OTHERS Vs. MUZHUPPILANGAD PANCHAYAT

JUDGEMENT

(1.) This appeal arises against the judgment in A.S.No. 252/1985 which was delivered in a common judgment with A.S. No. 251/1985 by the District Judge, Tellicherry. The above two appeals were filed before the District Judge questioning the common judgment of the Munsiff, Tellicherry delivered in O.S.No. 85/ 83 and suit No. 59/83. The present appellants are the respondents in A.S.No. 252/1985 and the plaintiffs in O.S.No. 85 of 1983. And the first defendant in O.S.No. 85/93 and the appellant in A.S.No. 252/1985 is the present respondent in this appeal.

(2.) The case of the appellants would be that they are owning coconut gardens on the banks of Anjarakkandy river. The lands of the appellants are sandy in nature and they have spent substantial sums for planting and raising coconut trees in their lands. The width of the river is 40 metres near the properties of the appellants. The river, admittedly, belongs to the respondent-panchayat. On account of the removal of sand from the riverbed, there occasioned soil erosion on the bunds of the properties of the appellants and thereby they have sustained loss on account of the damage caused by the soil erosion. Therefore, they filed the suit in O.S.No. 85/ 1983 for permanent injunction restraining the respondent from auctioning or otherwise granting licence to anybody for the purpose of removing the sand from the river-bed adjacent to the appellants' properties, which are the plaint properties.

(3.) The above case of the appellants is resisted by the respondent panchayat on the main ground that it is their right to auction the sand to private contractors. If the sand is not removed, the purpose of navigation mechanised and country boats will be affected. In other words, if there is no periodical removal of sand from the river, the river cannot be used for navigation purposes. Further, leaving on either side to a considerable length they are removing the sand in the middle of the river and therefore in no way by their act there will be any damage to the lands of the appellants. In such circumstances, the appellants as per law and fact, are not entitled to ask for an order of injunction.