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2025 Supreme(Ker) 644
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.NAGARESH, J.
Krishnamani, S/o.Pazhaniyappa Mudali - Appellant
Versus
Chamiyar, (Died), S/o.Kunchan - Respondents
SA NO. 742 of 1999
Decided on : 20-03-2025
Advocate Appeared:
For the Appellant : BY ADVS. SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI. A.P. CHANDRASEKHARAN (SR.) SRI. M. KRISHNA KUMAR
For the Respondent: BY ADVS. RAJESH SIVARAMANKUTTY, FOR R30 MAYA C.P., FOR R30 K.V.ANTONY, FOR R30 VIJINA K., FOR R30 ARUL MURALIDHARAN, FOR R30 J.MARY HELP JOHN DAVID, FOR R1 & R4 S.RAMACHANDRAN, FOR R1 & R4
IMPORTANT POINT
Rights under lease agreements are binding on assignees, and cannot be revoked, affirming entitlement to water despite property assignment.
Headnote:
(A) Specific Relief Act, 1963 - Sections 34 and 38 - Water Rights - Plaintiffs sought declaration for entitlement to half of the water from tanks and injunction against defendants obstructing this right - Defendants contended that plaintiffs had no right post-assignment of property - Courts found that plaintiffs retained rights under Ext.A5 despite assignment - Defendants cannot obstruct plaintiffs' rights. (Paras 9 , 10 , 20 , 23 )
(B) Lease Agreements - Rights under lease agreements are binding on assignees - The right to draw water from the tanks is not merely a license but an absolute right retained by the plaintiffs. (Paras 19 , 22 )
Facts of the case:
Plaintiffs claimed entitlement to half the water from tanks originally belonging to their family, asserting rights retained despite property assignment to defendants. Defendants obstructed this right, leading to litigation.
Findings of Court:
The courts upheld the plaintiffs' rights to draw water as per Ext.A5, confirming that such rights persist despite property assignment.
Issues: The main issues included the nature of rights retained by plaintiffs post-assignment and whether the decree was executable.
Ratio Decidendi: The court ruled that rights under lease agreements are binding on assignees and cannot be revoked, affirming the plaintiffs' entitlement to water.
Result: Second Appeal dismissed.
JUDGMENT :
(N. NAGARESH, J.)
Defendants 1 to 4 in OS No.300/1986 on the files of the Sub Court, Palakkad and the appellants in AS No.152/1991 on the files of the District Court, Palakkad, are the appellants in this Second Appeal. The appellants challenge the judgment and decree dated 22.09.1998 in AS No.152/1991 and the judgment and decree dated 30.03.1991 in OS No.300/1986. In this judgment, parties are referred to as they are described in the OS, for clarity.
2. Plaintiffs (respondents 1 to 7) filed the suit for declaration that they are entitled to half of the water in the plaint schedule tanks and to restrain the defendants from objecting to take half of the water from the tanks and further from obstructing the Ramesam Pottakulam filling with water from Kunnamkattupathy through pipe 206 and to restrain the defendants from diverting the water to the Vathankulambu Nilam from pipe 206. The plaintiffs further sought for a decree to allow them to walk through the varamba of the defendants' field to draw half the water and catch fish.
3. In the plaint, the plaintiffs stated that there are three tanks which originally belonged to Ekkanathu Tharavadu and the water from the said tanks was utilised for irrigating the paddy fields in Kuttiyambak belonging to the aforesaid family. The fields at Kuttiyambak were taken on lease by Kunjan, father of plaintiffs 1 to 3. Water from the aforesaid tanks was utilised for irrigation. Ramesam Pottakulam used to be filled up with water from Cochin Sarkar through pipe 206.
4. The Jenmi wanted to terminate the lease and the 1st plaintiff, son of Kunjan, released the entire properties to the Jenmi on 30.03.1953. On the very same day, as per a registered lease deed, the 1st plaintiff took half of the properties on lease. Half of the properties were entrusted to the 4th plaintiff. The remaining half was retained by the Jenmi. The tanks scheduled in the plaint were also released in favour of the Jenmi. However, the right to collect half of the water from the tanks for irrigation of paddy fields in the possession of the tenants, was retained.
5. The plaintiffs stated that on the southern side of Kuttiyambak Nilam, the Jenmi had certain other paddy fields named Vathankulambu Nilam. Those paddy fields were cultivated using the water from Kunnamkattupathy channel. Water from the plaint schedule tanks was never used for irrigation of Vathankulambu paddy fields. The Jenmi sold their rights over the property retained by them to defendants 1 to 4 (appellants herein). Defendants 1 to 4 started obstructing the right of plaintiffs to take water from the tanks. They have started to pump out the water from Ramesam Pottakulam for irrigation of Vathankulambu paddy fields. They also tried to channelise the water from pipe 206 to Vathankulambu paddy fields. They have no right to do so.
6. The plaintiffs urged that though the defendants have purchased the plaint schedule tanks, they will not get right for the entire water in the tank. The plaintiffs claimed that they are entitled to half the water in the plaint schedule tanks.
7. The defendants contended that Kunjan was not in possession as a lessee of the entire Kuttiyambak Nilam. The defendants are not aware of lease deed executed on 30.03.1953. The tanks were in the possession of Jenmi at all times. The Jenmi has not given right to the plaintiffs to use half of the water from the tanks. They are entitled only to collect the let out by the Jenmi from the tanks. The water which comes through the pipe of Kunnamkattupathy channel is used not only for Ramesam Pottakulam. It is used for certain other paddy fields also. The plaintiffs have never taken water from the tanks. The defendants are not bound by the lease deed.
8. Based on the pleadings, the Sub Court framed the following issues:
(1) Whether the plaintiffs' father Kunjan was a lessee of Kuttiyambakkam paddy field and whether he was in exclusive enjoyment of the tanks mentioned in the plaint?
(2) Whether the surrender mentione
