Madras High Court
Kasi Naidu vs Govindarajan And Ors. on 16 August, 1999
Equivalent citations: (1999)3MLJ746
JUDGMENT K. Govindarajan, J.
1. The plaintiff who failed before the courts below in getting a decree for declaration and permanent injunction has filed the above Second Appeal.
2. It is the case of the plaintiff that he is the co-owner with respect to the lands bearing Survey Nos. 234/1 and 234/2. There is a well meant to irrigate the said lands. Defendants 1 to 4 are the brothers of the plaintiff/appellant, and the 5th defendant is his mother. The defendants 1 and 5 purchased the lands bearing Survey Nos. 227/6A and 227/6C. According to the plaintiff, the defendants/respondents are not entitled to take water from the suit well to the said lands. So, he filed the suit in O.S. No. 127 of 1983 on the file of the learned District Munsif, Manamadurai to get a decree to that effect. The 1st defendant filed written statement and the defendants 2 to 5 have adopted the same. According to the defendants they have been enjoying the suit lands separately, though no partition was effected between the brothers. According to the defendants, the plaintiff is not enjoying the suit lands bearing Survey Nos. 234/1 and 234/2. Since they could not cultivate the said lands, the defendants 1 and 5 want to take water for the said lands, from the suit well, which they have purchased for the purpose of cultivation, by which, according to the defendants, the plaintiff would not get any loss, as they are not cultivating the said lands quite a long number of years. According to the defendants, they are taking water only for four days for which they are entitled towards their share. They have been taking water from 1971. So, the plaintiff cannot prevent the defendants from taking such water.
3. The lower court accepting the case of the defendants, dismissed the suit. Aggrieved against the same, the plaintiff/appellant filed appeal in A.S. No. 84 of 1985 on the file of the Sub Court, Sivaganga. The learned Sub Judge also concurred with the findings of the lower court and dismissed the appeal. Still aggrieved, the appellant has filed the above Second Appeal.
4. The only question that arises for consideration in this Second Appeal is whether the respondents/defendants are entitled to take water from the suit well to any other lands, which are not attached to the suit well.
5. Admittedly only the lands bearing Survey Nos. 234/1 and 234/2 are attached to the suit well. The lands for which the respondents/defendants want to take water from the suit well are purchased only in 1971 and 1973. On that basis the learned Counsel appearing for the appellant/plaintiff has submitted that the defendants have no right to take water from the suit well to any other lands, except the lands attached to the suit well. This submission is supported by a number of decided cases. In the decision in Valliammal v. Vdayar Konar (1945) 1 M.L.J. 1 (N.O.C.), while dealing with similar issue, Chandrasekhara Ayyar, J., has held as follows:
Where the joint ownership of a well is an incident to the joint ownership of certain lands (to irrigate which the well was to be used) acts of enjoyment referable to the ownership of the well must necessarily appertain to the ownership of those lands and cannot relate to or follow the ownership of any other land or lands. Any infraction of the joint right of ownership is liable to be prohibited by injunction even though no damage be proved. It is not open to one of the owners to take water irrigating other lands and contend that he has not exceeded his share of the right to take water from the well.
6. Again in the decision in Palani Gounden v. Karuppa Goundan (1954) 2 M.L.J. 58 (N.O.C), Govinda Menon, J., has held as follows:
The use of the water in an irrigation well is so intimately related to the cultivation of the field in which it is situated that a co-owner cannot take away the water for use in any other field which he might have acquired subsequently. The right in the well owned by two persons jointly cannot be dissociated from the land to which the well is attached and any diversion by a party of the water for irrigating other lands will constitute an infringement of the right of the other party.
7. In the decision in Nanjappa Goundan v. Ramaswami Goundan , also, this Court following the judgment of Chandrasekhara Aiyar, J., has held as follows:
The rights in the well cannot be considered to be dissociated from the land to which the well was attached. The rights of the parties to the water in the well have to be measured and are co-extensive with the rights to irrigate the respective shares in S. No. 309. They cannot be permitted to increase the user and any diversion of the water of the well for irrigating lands other than. S. No. 309 would be an infringement of the right of the party by the other. The principle of the decision in Venkatanarasayya 29 L.W. 613, though it related to a tank owned by co-sharers, equally applies to the present case which is concerned with a well. In the case in Venkatarama Sastri v. Venkatanarasayya 29 L. W. 613, the Ayacut which was owned by the co-sharers was fixed and it was held that it was not open to one of the co-sharers to divert to water of the tank to lands not included in the Ayacut. By the accustomed user of the water of the lands under Ayacut it is a legitimate inference to draw that the right to the water is intimately connected with the ownership of the lands comprised in the Ayacut and the co-sharer's right to the water is proportionate to the extent of the Ayacut owned by him. In the same manner it must be presumed by reason of the. user both before the after the partition and by reason of the terms of the deed of partition itself, that the parties intended to restrict the user of the water of the well to the land comprised in S. No. 309 and no more; and they being co-sharers of the well, it is not open to one such co-sharer to use the water of the well for other lands than those comprised in S. No. 309. The same principle was adopted and applied by Chandrasekhara Aiyar, J., in a case relating to a well the decision in which however is not reported. Vide S.A. No. 1640 of 1943. 1 respectfully adopt the reasoning of the learned Judge in that case, the facts of which are similar to the facts of the present case, and for the reasons mentioned in that judgment as well as for the reasons given by me in this judgment, I am of opinion that the decrees of the courts below dismissing the plaintiff's suit should be set aside and that the plaintiff should be given a decree in his favour for a permanent injunction restraining the defendants from taking water from the well in S. No. 309 in Naranapuram village to other survey numbers in the same village.
8. K.S. Ramamurthi, J., in the decision in S. Pillai v. M. Pillai (1970) 1 M.L.J. 376 : A.I.R. 1971, Mad. 230, while dealing with the right of the party to take water from the well to any other land, has held as follows:
Naturally when the properties were divided into equal shares, the appurtenant inseparable right to water is provided and the well not being capable of the division by metes and bounds was not divided but the right to take water from the well was settled by a workable arrangement each party taking water for three days in the week. It is crucial to bear in mind that the three days in the week fixed for the turn is not in the abstract, a mere division of the water contents, i.e., so many gallons of water but it is essentially a right to irrigate the lands allotted to the respective branches flowing from their right of ownership in the land.
It is implicit in such arrangements that the common source of irrigation, the well, is kept in common for the only purpose of irrigating the lands which are allotted to the respective branches and to serve that purpose only, leaving out of account the other incidental purposes like bathing, washing clothes, taking water for cattle, etc. The scheme of the arrangement cannot admit of any notion of the parties being entitled to the particular quantity of water (so many gallons) treating that alone as a distinct item of property, divorced from the lands. The well is set apart as common property for the most beneficial and profitable enjoyment of the land and it does not matter what label the parties give to their rights in the well, whether it is a right to a particular share in the well or whether a right to take water by turns. But what is crucial is that in the case of lands, valuable right is the source of irrigation.
4. There is, however, nothing to prevent the parties from entering into an arrangement which would be very unusual and extraordinary that the arrangement was merely a division of the water in the well in the abstract with right to use the water in any manner they like to irrigate and lands they liked, for a matter of that even use the water for any other purpose. It is for the parties to plead and establish such an unusual agreement. Otherwise the right in the well will be in separately connected with the land. At this stage, it is necessary to mention that the defendants were fully alive and conscious of the fact that as a result of the partition arrangement they would not be entitled to irrigate the lands newly acquired by them and that was the reason why they put forward the theory of panchayat which alone would give them this right but they failed to make out that panchayat. I am adverting to this fact only to indicate that the intention of the parties is very relevant; the conduct manifested by the defendants in setting up a case of panchayat proves that so far as the parties are concerned they accepted the position that the arrangement of 1952 by itself would not confer this right to irrigate other lands.
9. Sengottuvelan, J., also in the decision in Ponnuswamy Gounder v. Balakrishna Gounder 99 L.W. 944, after considering the entire judgments on the issue, has held as follows:
On a consideration of the principles laid down in the above decisions the following propositions appear to be evident:
(1) In between the co-owners of a piece of land irrigated by a well is implicit that the well is kept in common only for the purpose of irrigating the lands which are allotted to the respective branches and to serve that purpose only leaving out of account the other incidental at purposes like bathing, washing clothes, taking water for cattle, etc.;
(2) The scheme of arrangement cannot admit of any notion by which the parties will be deemed to be entitled to the particular quantity of water (so many gallons) treating that alone as a distinct item of property, divorced from the lands, which they can take to any land owned by them apart from the land for which the well is intended;
(3) The ownership of water in the well is not independent to the ownership of the land. Hence the use of the water for lands other than that for which the well is intended is not permissible.
From the abovesaid decisions it is very clear that, (1) no damage need be proved by any infraction of the joint right of ownership, as the joint ownership of the well is an incident to the joint ownership of lands to irrigate which the said well was to be used; (2) it is not open to one of the owners to take water for irrigating other lands and contend that he has not exceeded his share of the right to take water from the well; and that (3) the ownership of water in the well is not independent to the ownership of land and hence the use of water for lands other than that for which the well is intended is not permissible. But the parties can come to an arrangement for the purpose of using the water to irrigate the other lands.
10. In the present case, though the learned Counsel for the respondents has come forward with the plea that by allowing the defendants/respondents to take water to the other lands for quite a number of years should be construed as the consent given by the plaintiff. Such submission cannot be accepted. It is not the case of the defendants in the written statement that they have come forward with the specific plea that they have been using the well on the basis of the consent obtained from the plaintiff. So, as held in the decision in S. Pillai v. M. Pillai (1970) 1 M.L.J. 376 : A.I.R. 1971 Mad. 230, such an arrangement should be pleaded and established, which is lacking in this case.
11. The learned Counsel for the respondents/defendants has also submitted that the plaintiff is not using the well, and, since the defendants also cannot use the said well to irrigate the lands in S. Nos. 234/1 and 234/2, they are using the said well water to other lands for the purpose of cultivation, which cannot be prevented by the plaintiff, as he is prejudiced. This submission also cannot be sustained in view of the abovesaid settled principles of law cited in the various decisions.
12. The courts below have not at all appreciated this legal position. The lower appellate court also has relied on certain decisions which are not relevant to the issue in question. Those decisions are not the answer to the issue raised by the plaintiff. The plaintiff's right in the suit well is not denied by the defendants and so the infraction of the joint right of ownership by the defendants by using the same for the lands not connected with the suit well is liable to be prohibited by granting a decree for permanent injunction.
13. In view of the above discussions, the judgments and decrees of the courts below are set aside and the plaintiff is entitled to a decree as prayed for. Consequently, this Second Appeal is allowed. No costs.