BY AD v. SAJAN VARGHEESE K

Petitioners are the defendants in the suit O.S.No.87/2023, of the Munsiff Court, Chittur and the appellants in C.M.A.No.69/2023 of the District Court, Palakkad. The interim order of injunction issued against the petitioners vide Ext.P10 by the learned Munsiff was confirmed by the impugned Ext.P11 order issued by the District Court, Palakkad, whereby the petitioners stand injuncted from causing any obstruction to the respondent herein (plaintiff in the suit), in drawing water from the river at one of the boundaries of the family property, so as to irrigate plaint A schedule property and also from using the way providing access to the said property. O.P.(C).No. 213 of 2024 ..3..

2. Heard Sri. Sajan Vargheese, learned counsel for the petitioners and Sri. Sarath M.S, learned counsel for the respondent.

3. The main argument raised by the learned counsel for the petitioners is that water from the river can be drawn only in terms of Ext.P6 license issued by the District Collector, which permits only the 1st petitioner to draw water from the river and that too, for the purpose of irrigating 4 acres of land comprised in Survey No.518, 519 of Vanchikunnampathi village. The point urged was that respondent/plaintiff has no property in the said survey numbers, except a portion of item no.2 and item no.3 of plaint A schedule, wherefore, the respondents/plaintiff cannot, as of right, claim for drawing water from the river. Learned counsel would also emphasise on the condition in Ext.P6, as regards direction to the Tahsildar of Chittur Taluk, to ensure that the none of the conditions, based upon which permission was granted vide O.P.(C).No. 213 of 2024 ..4.. Ext.P6, are violated and that Ext.P6 also contemplates action under the Kerala Land Conservancy Act, against those persons who violate.

4. The second aspect highlighted is that, Ext.P7 document, which contemplates an agreement, is executed by and between the petitioner/1st defendant and the Tahsildar, Chittor, which is one pursuant to Ext.P6 permit. The third aspect highlighted is that there is no reference in the plaint to the partition deed of the year 1978, wherefore, the plaintiff/1st respondent cannot stake any claim for drawing water based on the provisions of the said partition deed. The claim made is only based on the partition deed of the year 2021, wherefore, at best, the properties allotted to the plaintiff/respondent, as per that partition deed alone can be sought to be irrigated by drawing water. O.P.(C).No. 213 of 2024 ..5..

5. The last contention urged is that, the provision in the partition deed of the year 2021 for drawing water, to persons other than the petitioners/1st defendant, is hit by Section 23 of the Contract Act, inasmuch as, it is in violation of the permit granted to the petitioner vide Ext.P6. Learned counsel would submit that, Ext.P6 which is an order issued by the District Collector would even come under the the expression 'forbidden by the law', as employed in Section 23 of the Contract Act; and 'law' has to be understood in the context of Article 13(3) of the Constitution.

6. Refuting the above submissions, the learned counsel for the respondent/plaintiff would submit that, the right of the parties to draw water for the purpose of irrigating their properties, is specifically contemplated in the partition deed of the year 1978. Reference to that document of the year 1978, is very much made in the plaint in O.P.(C).No. 213 of 2024 ..6.. paragraph no.3 and also in the schedule to the plaint. Inasmuch as, the said document specifically provides the right of the parties to draw water and contains a mutual interdiction not to obstruct the same, the stand of the petitioner/defendant cannot be recognized in law. It was urged that issuance of Ext.P6 in the name of the petitioner cannot curtail such rights of the parties, which flows from the 1978 document. According to the learned counsel, no interference is warranted to the concurrent findings of the Munsiff and the District Judge, in Ext.P10 and P11 orders respectively, by this Court under Article 227 of the Constitution.

7. Having heard the learned counsel appearing for the respective parties, this Court finds that the contention raised by the learned counsel for the petitioner cannot be recognized for the following reasons: O.P.(C).No. 213 of 2024 ..7.. (1) It is not correct to say that the 1978 document was not referred to in the plaint. The same is specifically referred to in paragraph no.3 of the plaint. Of course, there is no reference to that provision of 1978 document, which deals with the mutual rights of the parties therein, as regards irrigation and transportation. However, once the document is referred and the right of irrigation is specifically pleaded in the plaint, though under the 2021 document, relief which is otherwise equitable cannot be refused on that specious ground of want of proper pleadings. That apart, the 2021 document is produced along with the plaint as a suit document, wherefore, the recitals in the said document can be construed as part of pleadings. If that be so, the 2021 document specifically refers to the 1978 document, though the provision regarding irrigation in 1978 document is not specifically referred to. Therefore, the said contention will not stand. O.P.(C).No. 213 of 2024 ..8.. (2) Substantive rights of the parties under a partition deed which provides for mutual and common benefits while dividing a property, cannot be deprived on the basis of a Government order, under which license is issued to only one among parties to the document. It is true that, Ext.P6 is in the name of the 1st defendant and it speaks of properties comprised in certain survey numbers only. However, it is not by virtue of Ext. P6 that the parties, including the 1st defendant, got the right for irrigating their land. Their essential basic rights flows from the fact that they are riparian owners of the land, with a river or water stream, as one of the boundaries. It is such customary right of theirs, which is embodied in the 1978 partition deed, that the parties essentially enjoyed. Ext. P6 only regulates the drawing of water by issuance of the license stipulating conditions therefor. In such circumstances, the absence of the name of the plaintiff in Ext. P6 would not deprive the O.P.(C).No. 213 of 2024 ..9.. plaintiff from drawing water. Nor could it be contented that a property, which is not specifically mentioned in Ext.P6 license cannot be irrigated. If Ext.P6 does not enable the same, the same is enabled by the afore-referred rights of the plaintiff and other parties, under the 2021 document, which, in turn, flows from the rights of the parties, including the plaintiff's mother, under the 1978 document. The said contention also will not stand therefore. (3) The third contention is with respect to the application, if any, of Section 23 of the Contract Act. Essentially, this Court is of the opinion that, the same need not be considered, while considering an interlocutory application, wherein the prima facie case and balance of convenience, are the considerations. The status with respect to the rights claimed by the parties, which is to prevail pending litigation, is what is sought to be protected by an interim order. A purely legal O.P.(C).No. 213 of 2024 ..10.. contention, based on Section 23, is something to be agitated in the main suit. Any opinion expressed on that contention by this Court is likely to prejudice one of the parties. The issue is therefore, left open. The Original Petition will stand disposed of, as above, confirming Ext.P11 order. TR Sd/- C. JAYACHANDRAN JUDGE O.P.(C).No. 213 of 2024 ..11.. APPENDIX OF OP(C) 213/2024 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 TRUE COPY OF THE PLAINT DATED 27-02- 2023 IN OS NO.87/2023 ON THE FILE OF MUNSIFF'S COURT, CHITTUR. TRUE COPY OF THE WRITTEN STATEMENT DATED 20-12-2023 FILED BY THE DEFENDANTS NO.1 & 3 TO 5 IN EXHIBIT P1 SUIT. TRUE COPY OF THE WRITTEN STATEMENT DATED 20-12-2023 FILED BY THE DEFENDANT NO.2 IN EXHIBIT P1 SUIT. TRUE COPY OF IA NO.599/2023 DATED 27- 02-2023 FILED IN EXHIBIT P1 SUIT. TRUE COPY OF THE COUNTER AFFIDAVIT DATED 07-03-2023 FILED IN EXT.P4 APPLICATION. TRUE COPY OF THE PROCEEDINGS DATED 18- 03-1982 OF THE DISTRICT COLLECTOR, PALAKKAD. TRUE COPY OF THE COMMUNICATION DATED 30-08-1990 ISSUED FROM THE TALUK OFFICE, CHITTUR TO THE FIRST THE PETITIONER. TRUE COPY OF THE COMMUNICATION DATED 28-04-2023 ISSUED BY THE AGRICULTURAL OFFICER TO THE 5TH THE PETITIONER. TRUE COPY OF THE DEED NO.197/2021 OF SRO, KOZHINJAMPARA DATED 25-01-2021. TRUE COPY OF THE ORDER DATED 12-04-2023 PASSED IN EXT.P4 PETITION. TRUE COPY OF THE JUDGMENT DATED 12-12- 2023 PASSED IN CMA NO.69/2023 ON THE FILE OF ADDITIONAL DISTRICT COURT-V, PALAKKAD.