Point of Law: Defendants have no manner of right to contaminate or reduce the utility of the well water to the detriment of the plaintiff.

JUDGMENT :

The 1st defendant in a suit for both prohibitory and mandatory injunctions is the appellant. The plaintiff filed the suit alleging that he has a right over the well, situated on the western side of his property and the defendants are trying to fill up the same.

2. According to the plaintiff, he purchased the plaint schedule property in the year 1981 and has been residing in the building therein. He purchased the property including a share in the well situated on the western side of the property. The defendants are residing on the western side of the property. The defendants have no right over the well. The defendants made an attempt to fill up the well for which they have no right. On the above facts, the plaintiff filed O.S.No.675/1997 on the file of the Additional Munsiff's Court-II, Thrissur (hereinafter referred to as 'the trial court') for an injunction restraining the defendant from filling up of the well on the western side of the plaint schedule property and from covering of any portion of the well in any manner which would contaminate or reduce the utility of the well water. Further, mandatory injunction directing the defendants to restore the wall around the well to its original position is sought for.

3. The defendants contended that the plaintiff has no right to use the well. According to them, the well is within the property purchased by the 1st defendant in the year 1979. During 1988-89, there was shortage of water and at that time the defendants permitted the plaintiff to take water from the well. However, the permission granted was subsequently withdrawn.

4. The trial court framed necessary issues for trial. The plaintiff was examined as PW1 and Exts.A1 to A6 were marked. The 1st defendant was examined as DW1 and Exts.B1 and B2 were marked. The reports of the Advocate Commissioner were marked as Exts.C1 and C2.

5. On appreciation of the evidence, the learned Munsiff found that the defendants have no right over the well. The learned Munsiff also recorded that the plaintiff was not claiming any proprietary right over the well and his claim is that he has right to use and enjoy the well. But the learned Munsiff on the basis of the recital in Ext.A1 title deed of the plaintiff, that the plaintiff is having share over the well and that the plaintiff is using the well, found that the plaintiff has the right to use the well. Accordingly, the trial court granted a mandatory injunction as well as prohibitory injunction by judgment and decree dated 7.11.1998.

6. Feeling aggrieved by the judgment and decree, the 1st defendant filed A.S.No.54/2003 before the Sub Court, Thrissur (hereinafter referred to as 'the first appellate court'). By judgment and decree dated 13.2.2004, the first appellate court dismissed the appeal confirming the judgment and decree of the trial court. Hence this second appeal. The parties are hereinafter referred to as referred in the original suit unless otherwise stated.

7. Heard Sri.P.K.Ravisankar, the learned counsel for the appellant and Sri.Arun B.Varghese, the learned counsel for the respondent.

8. The learned counsel for the appellant contended that the plaintiff did not have any proprietary right over the well and the well is situated within the property of the 1st defendant. On the contrary, the plaintiff claimed in the plaint that he has proprietary right over the well. According to the learned counsel for the appellant, the plaintiff realised that he was not able to prove his contention that he has the proprietary right. The plaintiff conceded that he did not have the proprietary right over the well but he claimed the right to use the same on the basis of the recital in his title deed. According to the learned counsel for the appellant, the deed was subsequent to the assignment of the land to the 1st defendant and hence will not confer any right on the plaintiff. Thus, it is submitted that in the absence of any legal right to the plaintiff to use the disputed well, the two courts below