IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 16^TH DAY OF JANUARY 2024 / 26TH POUSHA, 1945 RP NO. 931 OF 2016 AGAINST THE JUDGMENT AND DECREE DATED 17.05.2016 IN RSA

1075/2009 OF HIGH COURT OF KERALA PETITIONER/APPELLANT:

AJIKUMAR, AGED 41 YEARS S/O. GOPINATHAN NAIR, THATTARETHU, VALLICODE MURI, VALLICODE VILLAGE, PATHANAMTHITTA DISTRICT, PIN CODE-689 659.

BY ADVS.

SRI.P.VISWANATHAN SRI.V.S.ABHISHEK SRI.SHIBU JOSEPH SRI.SUNIL N.SHENOI SMT.SANU S MALAKEEL RESPONDENTS/RESPONDENTS:

1 SOMAN NAIR, AGED 63 YEARS S/O. KRISHNAN NAIR, PEKKUZHIKKARA VEEDU, PRAKKANAM MURI, CHENNEERKARA VILLAGE, PATHANAMTHITTA DISTRICT, PIN CODE-689 503.

2 AJITHAKUMARY, AGED 55 YEARS W/O. SOMAN NAIR, PEKKUZHIKKARA VEEDU, PRAKKANAM MURI, CHENNEERKARA VILLAGE, PATHANAMTHITTA DISTRICT, PIN CODE-689 503.

BY ADVS.

SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON

16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.B.SURESH KUMAR, J.

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Review Petition No.931 of 2016 in R.S.A.No.1075 of 2009 -----------------------------------------------

Dated this the 16^th day of January, 2024

O R D E R

The appellant who is the defendant in the suit from which the second appeal arose, seeks review of the judgment in the second appeal.

2. The plaint schedule item No.1 property which is an agricultural land belongs to the plaintiffs. There is a panchayat road on the northern boundary of the plaint schedule item No.1 property. The panchayat road is constructed almost 2½ feet above the level of the plaint schedule item No.1 property. The plaint schedule item No.2 property which is lying on the immediate north of the panchayat road belongs to the defendant. The properties on the south of the panchayat road including the plaint schedule item No.1 property lie at a higher level than the properties on the north of the panchayat road including the property of the defendant. Before the formation of the panchayat road, the water collected in the plaint schedule item No.1 property used to flow naturally to the plaint schedule item No.2 property through a defined water channel and used to reach the water channel on the side of the Kaippattoor – Vallikkode PWD road lying on the east of the plaint schedule item No.2 property. The plaint schedule item No.3 is the water channel in the plaint schedule item No.2 property.

3. When the panchayat road was constructed about 30 years ago in the east-west direction, a pipe having a diameter of 70 cms. was installed beneath the road to ensure the free flow of water from the properties on the south of the panchayat road. According to the plaintiffs, the plaint schedule properties are paddy fields and prior to the institution of the suit, the defendant reclaimed the plaint schedule item No.2 property. It is also the case of the plaintiffs that on account of the aforesaid conduct of the defendant, the natural flow of water from the properties on the south of the panchayat road was obstructed, and as a result, water began to stagnate in the plaint schedule item No.1 property, causing damage to the cultivation therein. The suit was filed, in the circumstances, claiming a declaration of the natural right of the plaintiffs for draining out water from plaint schedule item No.1 property through the plaint schedule item No.3 water channel situated in the plaint schedule item No.2 property. A decree of mandatory injunction directing the defendant to restore the plaint schedule item No.2 property as also the plaint schedule item No.3 water channel to its original position and a decree of permanent prohibitory injunction restraining the defendant from causing obstruction to the natural flow of water through the plaint schedule item No.3 water channel were also sought.

4. The defendant contested the suit contending inter alia that the free flow of water from the plaint schedule item No.1 property was not through the plaint sch