Santhamma and Pradeesh Kainady vs John and Leelamma

M. Sasidharan Nambiar, J.—Defendants in O.S.348 of 2006 on the file of Additional Munsiff Court, Kottayam are the Appellants. Respondents are the Plaintiffs. Respondents instituted the suit seeking a decree for permanent prohibitory injunction contending that plaint schedule property belongs to them under Ext.A1 sale deed and they are in possession of the property and the plaint schedule property having a length of 9.2 metres and width of about one metre is being used for laying the pipe connection, electric connection and telephone lines to the residential building of Respondents through the plaint schedule property and Appellants are not entitled to cause any obstruction to the said usage and they are also not entitled to trespass into the property. Appellants resisted the suit contending that Respondents were tenants of Vijayapuram Diocese and Respondents have a cattle shed in the plaint schedule property and they used to pollute the property of Appellants by the cow dung from the cattle shed by allowing it to be flowed through their property. Appellants preferred a complaint before the District Collector and Municipality and Respondents were restrained by an order from doing the illegal acts and Respondents have no right over the plaint schedule property and it forms part of the property of Appellants and they are not in possession of the property and therefore a decree for injunction cannot be granted.

Learned Munsiff on the evidence of Pws 1 and 2, DW1, Exts.A1 to A7 and B1 to B7, granted a decree for permanent prohibitory injunction finding that Respondents are in possession of the plaint schedule property and Appellants have no right to trespass into the property. Appellants challenged the judgment before District Court, Kottayam in A.S.143 of 2008. Learned District Judge, on re-appreciation of the evidence, found that though Respondents produced Ext.A1 sale deed and claimed right and title to the plaint schedule property from Vijayapuram Diocese, did not produce the title deed by which Vijayapuram Diocese obtained right over the property and therefore based on Ext.A1 title to the plaint schedule property cannot be upheld. Learned Judge also found that though Appellants have produced Ext.B1 and B2, their title deed, they also did not produce the anterior title deed establishing the title. But on the evidence it is found that it is the admitted case that a drainage pipe line is laid through the plaint schedule property from the residential house of the Respondents and electric and telephone lines are drawn through the plaint schedule property. Learned Additional District Judge therefore held that Respondents are entitled to get a decree restraining the Appellants from causing any obstruction or damage to the drainage pipe line drawn through the plaint schedule property and also from making any permanent construction obstructing the drainage and pipe line. It is challenged in the second appeal.

Learned Counsel appearing for Appellants was heard. The argument of the learned Counsel is that when Respondents did not claim any right of easement over the plaint schedule property, first appellate court should not have granted a decree with respect to the drainage pipe line or the water connection taken through the plaint schedule property and therefore the decree is not sustainable. The argument is that when the Respondents did not establish that their assignor under Ext.A1 have title to the plaint schedule property, a decree should not have been granted in the absence of a pleading on a right of easement.

On hearing the learned Counsel, I do not find any substantial question of law involved in the appeal. The decree as clarified by the first appellate court is only from causing obstruction or damage to the drainage pipe line drawn through the plaint schedule property or the water, electric or telephone connections taken through the plaint schedule property. It is not disputed that the drainage pipe from the residential house of Respondents is taken through the plaint schedule property. It is also admitted that the water, electric and telephone connections ere also taken through the plaint schedule property. Appellants have no right to remove those structures or construct any structure so as to damage those structures, other than by due process of law. In such circumstances, I do not find any reason to interfere with the decree granted by the first appellate court making it clear that the decree will not affect the right of Appellants, if any, to seek removal of them in accordance with law.

Appeal is dismissed.