The plaintiff in O.S.No.161/2002 who was successful before the trial court but suffered at the hands of the lower appellate court which dismissed the suit, has come up in appeal. 2. The plaintiff owns plaint item Nos.1 and 2. The plaint item No.3 is a pipeline which is drawn from item No.2 to item No.1. Earlier to the drawing of pipeline, there was a pully arrangement by which the plaintiff claimed to have been drawing water from the property of one Jose. Since Jose objected to the installation of electric motor, the plaintiff had to find another means to get water and therefore he purchased item No.2 and laid the pipeline. The definite case of the plaintiff is that the pipeline shown as item No.3 is through a puramboke land over which the 1st defendant had no manner of right. That pipeline had been laid long ago. Pointing out that the 1st defendant is attempting to put up a cattle shed threatening the pipeline, the suit was laid.
3. The 1st defendant resisted the suit pointing out that an extent of 16.750 sq. links of land was assigned to her father by patta and as a legal heir she was in possession of the same. Her further contention was that she wanted to put up a house and when she had laid foundation for the same, with ulterior motive, the plaintiff with the connivance of officials of the Village Office changed the position of the pipeline which was 100 feet away from the northern side of the proposed building. She disputed the claim of the plaintiff that the property through which pipeline was drawn was puramboke land. According to her, it belonged to her father and subsequently she came into possession of the same. She therefore prayed for dismissal of the suit.
4. The State filed a written statement almost admitting the claim of the plaintiff and conceding that the pipeline had been drawn through the puramboke property. The specific statement in paragraph 4 of the written statement of the State is that no patta has been given to the 1st defendant.
5. On the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PWs 1 to 5 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had DWs 1 to 3 examined and had Exts.B1 to B4 marked. Exts.C1 to C2 (a) are commission reports and plan.
6. The trial court, on evaluation of the evidence, found that the claim of the 1st defendant that she had ownership over the property above which pipeline has been drawn has not been established. It was also found by the trial court that the claim made by the 1st defendant that there was a shifting of pipeline from the puramboke land to her property is highly improbable and does not stand to reason. Relying on the evidence adduced by the plaintiff, a decree was granted.
7. The 1st defendant carried the matter in appeal as A.S.No.31/2009 before the Sub Court, Pala. Before the Sub Court, the 1st defendant produced Exts.B5 to B9 which, according to her, would prove that she had title to the property. The lower appellate court proceeding on the basis that the plaintiff was claiming prescriptive right of easement as against the 1st defendant went on to hold that since the plaintiff did not admit her title, the said claim cannot lie. It is also found that the claim made by the plaintiff that pipeline was drawn over the puramboke land was false and holding that the plaintiff had not come to the court with clean hands, reversed the finding of the trial court and dismissed the suit.
8. In the second appeal, the following substantial questions of law have been formulated.
I) Is not the finding of the lower appellate court that the appellant had not acquired an easement by prescription as regards plaint schedule item No.3 pipeline, contrary to law?
II) Did not the lower appellate court act contrary to law in not relying upon the admission of the owner of the servient tenement to find that the appellant had acquired an easement by prescription as regards plaint schedule item No.3 pipeline?
III) Whether an unauthorised occupant in the servient tenement can obstruct the easement right of the owner of the dominant tenement? Is not the finding of the lower appellate court that the first respondent can obstruct the easement right of the appellant as regards plaint schedule item No.3 pipeline contrary to law especially when the second respondent, the owner of the servient tenement admits the appellant's claim?
IV) Is not the finding of the lower appellate court that Exhibits B5 to B9 documents pertain to the area over which plaint schedule item No.3 pipeline is drawn, contrary to law? Is not the findings in this regard based on Exts.C1 and C1(a) prepared without reference to Exts.B5 to B9, contrary to law?
9. Sri.G.P.Shinod, learned counsel appearing for the appellant pointed out that the lower appellate court has misdirected itself both on facts and in law. It is not the case of the plaintiff that he was claiming prescriptive right of easement for drawing pipeline to take water over the property of the 1st defendant. The definite case put forward was that the property arranged for taking water was puramboke land and that the 1st defendant had no manner of right over the property. Subsequently, when she tried to put up a cattle shed below the pipeline, that caused apprehension in the mind of the plaintiff regarding the interference with the pipeline and that compelled him to file a suit.
10. Learned counsel for the appellant went on to point out that absolutely no evidence is adduced by the 1st defendant to show that she had any manner of right over the property over which the pipeline had been drawn. Further it is pointed out that the definite case of the 1st defendant was that the pipeline, prior to its present location, was running 100 feet away from the northern side of the place where she proposed to put up a building and that with ulterior motive it was shifted to run over the property over which she proposed to put up a building. This, according to the learned counsel, is improbable and inconceivable going by the two commission reports. It is inconceivable also for the simple reason that the plaintiff would not take such a risk of shifting the pipeline to the property belonging to the 1st defendant. It is also pointed out that none of the documents produced at the appellate stage would establish the case of the 1st defendant. It is further pointed out that going by the written statement of the 1st defendant, shifting was done in the year 2000 and the suit comes only in 2002. It is also significant to notice, according to the learned counsel for the appellant, that Ext.B2 complaint which is admittedly filed after the so called shifting, does not contain any whisper regarding shifting. It is therefore clear, according to the learned counsel, that the story of shifting is one cooked up for the purpose of the case and the 1st defendant has no manner of right over the property over which pipeline now runs. Accordingly, it is contended that the lower appellate court was wrong in reversing the judgment and decree of the trial court.
11. Learned counsel appearing for the 1st respondent, on the other hand, pointed out that the lower appellate court has correctly appreciated the facts and had come to the conclusion that the plaintiff has mislead the court by pointing out that the pipeline is drawn over puramboke land. It is also pointed out that even in the written statement of the 1st defendant, it is pointed out that the pipeline is now drawn over the property in respect of which the father of the 1st defendant was given patta and on the death of the father, the 1st defendant came into possession of the property since she was one of the legal heirs. It is further pointed out that the plaintiff has miserably failed to prove that the pipeline has been in existence as it now stands for more than 20 years which is necessary for claiming prescriptive right of easement. The lower appellate court has found that there are no sufficient pleadings with regard to the plea of prescriptive right of easement as against the 1st defendant. Accordingly, it is contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court.
12. After having heard the learned counsel on both sides and also after having perused the records and evidence, it is difficult to accept the contention of the learned counsel for the 1st respondent. The definite plea put forward in the plaint was that the pipeline was drawn over puramboke land. There is definite assertion in the evidence of PW1 that there was an earlier arrangement to draw water from the well by using pully. The case of the plaintiff was that the 1st defendant was trying to put up construction below the pipeline. The trial court, on evaluation of evidence, found that there is absolutely no evidence at all to show that the 1st defendant had any manner of right over the property over which the pipeline is now drawn. Even though at the appellate stage, Exts.B5 to B9 were produced, the lower appellate court without ascertaining whether they relate to the property in question jumped to the conclusion that she had title over property over which pipeline had been drawn. The lower appellate court went on to hold that since the plaintiff did not concede the title of the 1st defendant, his claim cannot lie.
13. Obviously, the lower appellate court has misunderstood the case projected by the plaintiff. The plaintiff's case was that he had been taking water through puramboke land for a long period. In fact, at the initial stage, he drew water by using some mechanical means and later when that source of water became unavailable, he purchased item No.2 and laid a pipeline. The plaintiff never admitted that the property over which the mechanical device for taking water was previously installed or pipeline as it now exists belonged to the 1st defendant. His definite case was that the 1st defendant had no manner of right and it was a puramboke land. Therefore, the question of pleading prescriptive right of easement as against the 1st defendant does not arise. Much of the discussion of the lower appellate court in this regard was unnecessary. The issue that ought to have been gone into was whether the 1st defendant who claimed title to the property was able to establish the same. It is significant to notice that even in the written statement, the 1st defendant has no case that she has obtained patta over the property over which pipeline is now drawn.
14. In the written statement, her definite case is that when she laid foundation for putting up a building in 2000, the plaintiff with the aid of Village Officers shifted the pipeline which was 100 feet away from the northern end of the structure with absolute malafides.
15. It must at once be noticed that the suit is of the year 2002. If, as a matter of fact, pipeline was drawn in 2000 infringing the right of the 1st defendant, it is difficult to believe that she would have kept quite. It is here that Ext.B2 assumes some significance. That is a complaint filed before the Revenue Divisional Officer regarding the act committed by the plaintiff and others. It is interesting to note that there is no whisper in the said complaint that there was shifting of pipeline by the plaintiff so as to make it run over the property belonging to the 1st defendant.
16. One fails to understand as to how the lower appellate court came to the conclusion that assuming Exts.B5 and B6 are pattas issued by the State, they referred to the property in question. It is also significant to notice that there is no patta standing in the name of the 1st defendant. Apart from the above fact, as rightly noticed by the trial court, the way in which the pipeline is drawn as could be discernible from Exts.C1, C1(a), C2 and C2(a), it was highly improbable that there would have been a shifting as claimed by the 1st defendant. The relief that is sought for as against the 1st defendant was only injunction restraining her from tampering or attempting to tamper with the pipeline. As long as it is not shown that she has any manner of right over the property over which pipeline is drawn, one fails to understand how she could resist the suit.
17. The lower appellate court found fault with the trial court for not referring to the pleadings that are required for claiming prescriptive right of easement and it reversed the finding. The lower appellate court omitted to note that the claim of prescriptive right of easement was not against the 1st defendant but against the State. As far as the State is concerned, the allegations in the plaint are almost admitted. It is also significant to notice that the State in its written statement has categorically stated that no patta has been granted to the 1st defendant.
18. It was the above factors which have persuaded the trial court to grant a decree in favour of the plaintiff. It is evident that the lower appellate court had misdirected itself both on facts and in law in reversing the finding of the trial court which seems to be reasonable.
For the above reasons, this appeal is allowed. The judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court is restored. There will be no order as to costs.
Sd/-
smp P.BHAVADASAN JUDGE