Point of Law : Article 21 of the Constitution of India provides protection of life and personal liberty and a citizen cannot live without water and it would definitely come under the basic need of a human being.

JUDGMENT :

This Regular Second Appeal has been directed against the judgment and decree in A.S.No.29/2012 on the file of Subordinate Judge's Court, Karunagappally which arose out of judgment and decree in O.S.No.39/2009 on the file of Munsiff's Court, Sasthamcotta.

2. The suit is one for permanent prohibitory injunction. Plaintiffs are the appellants. (Parties would hereinafter be referred as per their status before the trial court).

3. Plaintiffs have got right of easement for ingress and egress through the plaint schedule pathway which is running through the property of defendants as per compromise decree in O.S.No.107/2000 of the Munsiff's Court, Sasthamcotta. During the pendency of the proceedings, plaintiffs in O.S. No.107/2000 transferred the property to the defendants in the suit and hence defendants are bound by the decree in O.S.No.107/2000. Plaintiffs intend to draw pipeline through the pathway provided in the compromise decree in O.S.No.107/2000 since he has no other source of water for satisfying his basic needs. But defendants obstructed him from drawing pipeline through the pathway. Hence the plaintiffs filed the suit for restraining the defendants 1 to 3 from causing any obstruction in drawing the pipeline through the pathway provided in the decree. Fourth defendant is the Kerala Water Authority.

4. Defendants 1 and 3 filed written statement contending that the suit is not maintainable. The defendants have no knowledge about the decree in O.S.No.107/2000. Third defendant purchased 4 ares 72 sq. mtrs of landed property and thereafter he is in possession and enjoyment of the said property. No pathway is going through the property of the defendants and the plaintiffs are going through their property with their consent for ingress and egress. It is also contended that plaintiffs have no right to draw any pipeline through the pathway.

5. Defendants 2 and 4 remained ex parte. PW1 examined and Ext.A1 marked from the side of the plaintiffs. Third defendant was examined as DW1.

6. Trial court on evaluating the facts and circumstances and evidence found that the right of plaintiffs over the plaint schedule property has been proved through Ext.A1 and the drawing of pipeline for getting water to the plaintiffs for satisfying their basic needs will not tend to the total destruction to the plaint schedule pathway and that cannot be considered as a construction which is prevented in Ext.A1. The trial court also taken notice of the fact that an electric line has been drawn through the plaint schedule pathway to the house of the plaintiffs. Hence it was found that the defendants have no right to obstruct the drawing of the pipeline through the plaint schedule pathway for which they have got easement by prescription as per Ext.A1 decree and accordingly the suit was decreed.

7. Against which, defendants filed appeal and the first appellate court by the impugned judgment reversed the judgment and decree passed by the learned Munsiff and found that the plaintiffs have no legal right to draw water connection through plaint schedule property and consequently are not entitled to get any injunction as prayed for and accordingly the suit was dismissed. Aggrieved by the same, appellants/ plaintiffs approaches this court in second appeal.

8. At the time of admission this court formulated the following substantial questions of law :

(1) When right over a pathway is granted by way of compromise decree and the plaintiff has been using the pathway as per the compromise, is it proper on the part of the respondents to obstruct drawing of water connection through the aforesaid pathway for the use of the plaintiffs?

(2) When the factum of existence of pathway over the plaint schedule property is specified by virtue of a compromise decree was the first appellate court right in reversing the decree of the trial court in holding that the issue is restricted to passage alone?

9. Lower court records were called for and perused. Both sides were heard.

10. Accordin