Back
SUPREME COURT OF INDIA
A.P. SEN AND R.B. MISRA, JJ.
Ayyaswami Gounder and others, Appellants
Versus
Munnuswamy Gounder and others Respondents.
Civil Appeal No. 2118 of 1978
Decided on 25-9-1984.
Plot of land - Partition - Suit for declaration of their right - Permanent injunction - Appellants filed a suit for declaration of their right to take water from their exclusive well marked W. 1 in site plan attached with plaint and situate in a plot of land exclusively belonging to them, through a portion of a channel to their plots at survey Nos. lying to north of common well W. 2 in joint land of parties and for a consequential relief of permanent injunction restraining defendants respondents from interfering with enjoyment of plaintiffs right to take water from W. 1 through aforesaid channel - Partition took place between parties in or about whereunder survey Nos. 95 and 96 fell to the share of plaintiffs and 15 cents of land in plot No. in which common well W. 2 is situate and channel running from that common well were however, kept joint for common enjoyment of parties - Water from well W. 2 situate in plot No. was not sufficient enough to irrigate lands of both parties got by them in said partition - Plaintiffs therefore were irrigating their lands from well in survey No. 103/2 purchased by father of plaintiffs in name of plaintiffs mother under Ext. A. I - Whether it is a right to a particular share in well or whether a right to take water by turns – Held, case is distinguishable on facts inasmuch as in that case at time of partition well was kept joint and arrangements had been entered into about mode of use of well fixing duration - If parties had entered into a contract then they would be governed by terms of contract but in case in hand there was no such stipulation about manner or mode of enjoyment of common well and common channel - There is yet another reason why Court would be reluctant to encourage defendants to stop plaintiffs from irrigating their fields from their own exclusive well through common channel - In these days of scarcity when every effort is being made at all levels to increase agricultural production to feed countrys teeming millions it would not be desirable to allow defendants to create any hurdle in irrigation of plaintiffs plots through common channel from their exclusive well - Thus, neither the law nor expediency warrants a conclusion as desired by defendants - It is accordingly allowed and judgment and decree of High Court is set aside and one passed by first appellate court is restored in order to avoid any likely prejudice to defendants respondents - In circumstances of case parties shall bear their own costs - Appeal allowed.
Certainly. Based on the provided legal document, here are the key points summarized:
The case involves a dispute over water rights related to a well situated on a partitioned property, with the plaintiffs claiming a right to take water from their own exclusive well through a common channel (!) (!) .
The plaintiffs and defendants are descendants of a common ancestor and previously owned joint property, which was partitioned, leaving certain wells and channels as joint property for common use (!) (!) .
The plaintiffs purchased an additional well after partition and used a channel connected to a common land to irrigate their lands, which the defendants objected to (!) (!) .
The trial court recognized the plaintiffs' right as co-owners to use the common land and channels, and found no evidence of damage or prejudice caused by their use of the exclusive well (!) (!) .
The appellate court largely concurred with the trial court but modified the decree to impose certain terms on the plaintiffs' use of the channel, maintaining their rights (!) .
The High Court reversed the lower courts' decisions, holding that the plaintiffs did not acquire any easementary rights either by grant or prescription and that their use of the channel would impose an undue burden on the common property, which was not intended at the time of partition (!) (!) .
The appellants argued that the High Court erred in its findings, particularly because there was no specific pleading or proof of prejudice or damage caused by the plaintiffs’ use, and that their rights as co-owners included unrestricted use of the common land and channels (!) (!) .
It was emphasized that a co-owner's right to use common property is subject only to the restriction that such use should not prejudicially affect or cause detriment to the other co-owners (!) .
The claim of easement rights based on prescription or grant was contested, with the main argument being that the plaintiffs' rights stem from their co-ownership, not from a separate easement (!) .
The court highlighted that the use of the well and channel for irrigation is a valuable right attached to the land, and arrangements or agreements at the time of partition are significant in determining rights (!) (!) .
The court expressed concern over creating hurdles for irrigation, especially in the context of agricultural scarcity, and favored allowing the plaintiffs to continue using their well and the channel for irrigation purposes (!) .
The appeal was ultimately allowed, the High Court’s decision was set aside, and the decree of the lower appellate court was restored, with each party bearing their own costs (!) (!) .
Please let me know if you need a more detailed explanation or specific legal principles derived from this case.
JUDGMENT
MISRA J. :—The present appeal of the plaintiff-appellants by special leave is directed against the judgment of the High Court dated 7th April, 1978 reversing the judgment and decree of the two courts below and dismissing the suit.
2. The appellants filed a suit for declaration of their right to take water from their exclusive well marked W. 1 in the site plan attached with the plaint and situate in a plot of land exclusively belonging to them, through a portion of a channel to their plots at survey Nos. 95 and 96 lying to the north of the common well W. 2 in the joint land of the parties and for a consequential relief of permanent injunction restraining the defendants respondents from interfering with the enjoyment of the plaintiffs right to take water from W. 1 through the aforesaid channel.
3. The parties are descendants from a common ancestor and they owned joint properties. A partition took place between the parties in or about 1927 whereunder survey Nos. 95 and 96 fell to the share of the plaintiffs and 15 cents of land in plot No. 96/5 in which the common well W. 2 is situate and the channel running from that common well were, however, kept joint for the common enjoyment of the parties. Water from well W. 2 situate in plot No. 96/5 was not sufficient enough to irrigate the lands of both the parties got by them in the said partition. The plaintiffs therefore were irrigating their lands from the well in survey No. 103/2 purchased by the father of the plaintiffs in 1928 in the name of plaintiffs mother under Ext. A. I and they were irrigating their land obtained in partition through the common channel from their own well in survey No. 103/2 by connecting the common channel in the common land in survey No. 96/5 by means of a small channel to take water to their lands in survey Nos. 96/3, 96/1, 95 and 92. The defendants objected to the use of the common land in survey No. 96/5 and the common channel running in survey No. 96/5 for taking water from their exclusive well in survey No. 103/2. Hence the plaintiffs were obliged to file the suit mentioned above.
4. The defendants admitted the plaintiffs right to enjoy the common well, the common land and the common channel in survey No. 96/5. They, however, pleaded that the plaintiffs were not entitled to use the common property for taking water from their exclusive well in survey No. 103/2 to their family lands north of the common well. They also disputed the existence of the channel from 1928 as pleaded by the plaintiffs and further contended that the plaintiffs could not acquire any easementary rights over the common land to take water from their exclusive well. They, however, did not plead or prove any damage, injury or hardship suffered by the defendants to show that they were in any way prejudiced by plaintiffs forming a small channel in the common land to take water from their exclusive well to their family lands north of the suit property.
5. The trial Court by its judgment dated 16th June 1973 found that the plaintiffs being co-owners of the common property were entitled to use the property in the way most advantageous to them and the defendants having not pleaded or proved any damage or loss to the common property cannot obstruct the plaintiffs from taking water to their lands from their exclusive well through the common channel. It will be relevant at this stage to quote the observations of the trial court :
"Except asserting that it will affect him, D. W. 1 is not able to specify in what way the act of the plaintiffs caused damage or inconvenience to him in exercising his right in taking water through the common channel. All that he would say is that the plaintiffs should not have a channel AB on the common piece of land."
The trial Court, however, did not record any finding on the prescriptive right of easement pleaded by the plaintiffs, in view of its finding that the plaintiffs being co-owners can use the common land to form a channel.
6. On appeal by the defendant
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
