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Varghese Poulose and anr. Vs. K.i. Mathew and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 309 of 1960
Judge
Reported inAIR1965Ker147
ActsEasements Act, 1882 - Sections 4
AppellantVarghese Poulose and anr.
RespondentK.i. Mathew and ors.
Appellant Advocate T.S. Venkiteswara Iyer and; M.P. Varghese, Advs.
Respondent Advocate C.H. Kuruvilla,; George Vadakkel and; M.A. Joseph, A
DispositionAppeal dismissed
Cases ReferredDuppa v. Mayo
Excerpt:
- - i do not think there is any impediment in granting future damages as well in a case like this, where the damages result from a single cause of action and the cause of action continues even alter the filing of the suit (vide paragraph 190 of mayne and mc gregor on damages, 12th edn. ). therefore, i allow the memorandum of cross-objections and hold that the 1st respondent-plaintiff is entttlea to future damages as well until the obstruction is removed......obstructing such exercise of right. the 1st respondent also claimed damages already accrued and future damages. both the lower courts decreed the suit for declaration and injunction. coming to damages, the lower courts granted rs. 600/- till the date of suit; but they disallowed future damages. in the second appeal defendants 1 and 2 question the correctness of the decree regarding declaration and injunction; and in the memorandum of cross-objections the plaintiff questions the correctness of the decision of the lower courts disallowing future images.2. under the provisions of ex. p-1 the right created appears to be an interest in immovable property, in the sense that a liability or burden is imposed on the properties covered by schedules b and c, in favour of the properties covered.....
Judgment:

T.C. Raghavan, J.

1. Defendants 1 and 2 are the appellants and the plaintiff, the contesting 1st Respondent.

The 1st respondent was entitled to the suit A schedule properties; the assignor of the appellants was entitled to the B-schedule properties; and the C-schedule properties belonged to others. Under Ex. P-1, executed by all the parties entitled to the lands in the three schedules, the 1st respondent had to cut a channel of specified measurements along his property to connect the Government canal on the east to the B and C schedule properties on the west, it was also agreed under Ex. P-1 that the owners of the B and C schedule properties could use the water coming along the channel for agricultural purposes on those lands; and in consideration thereof the 1st respondent would be en- titled to catch prawns from the properties in the B and C schedules by placing a net in the channel. This was to be a permanent arrangement between the parties; and this also continued for some time. But, when the appellants purchased the B schedule properties, troubles started; and the suit came to be instituted by the 1st respondent for a declaration of his right to fish prawns as agreed to In Ex. P-1, and also for an Injunction restraining the appellants from obstructing such exercise of right. The 1st respondent also claimed damages already accrued and future damages. Both the lower courts decreed the suit for declaration and injunction. Coming to damages, the lower courts granted Rs. 600/- till the date of suit; but they disallowed future damages. In the second appeal defendants 1 and 2 question the correctness of the decree regarding declaration and injunction; and in the memorandum of cross-objections the plaintiff questions the correctness of the decision of the lower courts disallowing future images.

2. under the provisions of Ex. P-1 the right created appears to be an interest in Immovable property, in the sense that a liability or burden is imposed on the properties covered by Schedules B and C, in favour of the properties covered by Schedule A, out of which a portion has been utilised for cutting the channel. The intention of the parties appears to be that the lands covered by Schedules B and C should have the benefit of the water flowing through the channel for cultivation thereof; and in consideration for that, the land covered by schedule A was to have the right of catching prawns as indicated in Ex. P-1. In the face of these recitals it is idle to contend that the right created is not an Interest in immovable property and it will not pass with the property. aS I have already indicated, it is more in the nature of an easement created by agreement between the parties entailing the creation of a burden on the B and C schedule properties in favour of the A schedule property.

3. The learned counsel of the appellants draws my attention to the decision of the Madras High court in P. Venugopala Pillai v. Thirunavakkarasu, AIR 1949 Maa 148 and in particular to the passage quotea therein from the notes of Sir Edward Vaugham Williams to the case of Duppa v. Mayo, (Wms, Saunders, 1871 edition, p. 394) to the effect that if the standing trees are to get further nutriment from the soil before they are cut and removed the trees are immovable property; whereas if the parties intended the cutting and removing of the trees immediately as timber without allowing the trees to draw any further nutriment from the soli, they are movable property. I may straightaway clarify the position that this decision in this form may not apply to the present case, because the question herein is not whether prawns are movable or immovable property. Even if the question is that, I am still of opinion that even this test may apply. Whatever might be the case regarding deep sea fish which live on some marine growth completely unconnected with the bed of the sea-fathoms below, it cannot be said that prawns which live in shallow waters, a few feet deep, do not get any nutriment or sustenance from the soil underneath, it is clear that in this case the prawns In the water in the properties In Schedules. B and C must be deriving some nutriment from the soil; and therefore, even the test that is mentioned above may apply.

4. Thus in any view of the matter, the conclusion of the lower courts is correct.

5. The learned counsel of the 1st respondent argues that the lower courts should have allowed future damages, because the obstruction caused by the appellants is not yet removed. I do not think there is any impediment In granting future damages as well in a case like this, where the damages result from a single cause of action and the cause of action continues even alter the filing of the suit (vide paragraph 190 of Mayne and Mc Gregor on Damages, 12th Edn.). Therefore, I allow the memorandum of cross-objections and hold that the 1st respondent-plaintiff is entttlea to future damages as well until the obstruction is removed. But I make it clear that the quantum of damages will be decided in execution after taking evidence; and after the fixation of the amount the 1st respondent will have to pay necessary court fee before the amount is realised.

6. The second appeal is dismissed; and the memorandum of cross-objections is allowed'. In the second appeal the appellants will pay the costs of the 1st respondent; but in the memorandum of cross-objections the parties will bear their respective costs.


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