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IN THE HIGH COURT OF BOMBAY
(S.B. Bhasme J.)
TANKARAI JAIVANTA - Appellant.
Versus
DHONDIRAM PANDURANG and others - Respondents
Advocates appeared
For appellant – N.D Hombalkar.
For respondents Nos. 2 to 5 - B.R. Apte and K.J. Abhyankar.
WATER RIGHTS - CO-SHARERS - EXTENT OF USER - RESTRICTION ON USE OF WELL WATER TO PARTICULAR LANDS - ABSENCE OF AGREEMENT OR IMMEMORIAL USER - REASONABLE USER PRINCIPLE APPLIES - CO-SHARER ENTITLED TO TAKE WATER FOR IRRIGATING ANY OF HIS LANDS UP TO THE EXTENT OF HIS SHARE IN THE WELL.
Fact of the Case:
Plaintiff, co-owner of a well, sought a declaration of her right to take water from the well and an injunction restraining the defendants, also co-owners, from interfering with her right. The trial court granted the plaintiff's claim, but the appellate court modified the decree, restricting the plaintiff's right to take water from the well to irrigate only one of her lands. The plaintiff appealed to the High Court.
Finding of the Court:
The High Court held that in the absence of an agreement between the parties or immemorial user establishing a customary right, the principle of reasonable user applies to co-owners of a common well. Each co-owner is entitled to enjoy the facility of the common property without detriment to the enjoyment of the other, and so long as the property itself suffers no injury, weakening, or loss.
Issues: 1. Whether a co-sharer in a common well can be restricted from taking water from the well to irrigate lands other than those specifically mentioned in the sale deed or other document creating the co-ownership. 2. Whether the principle of reasonable user applies to co-owners of a common well in the absence of an agreement or immemorial user.
Ratio Decidendi: 1. The extent of a co-sharer's right to use the water of a common well is not necessarily restricted to the lands specifically mentioned in the sale deed or other document creating the co-ownership. 2. In the absence of an agreement or immemorial user establishing a customary right, the principle of reasonable user applies to co-owners of a common well. Each co-owner is entitled to enjoy the facility of the common property without detriment to the enjoyment of the other, and so long as the property itself suffers no injury, weakening, or loss.
Final Decision: The High Court allowed the plaintiff's appeal, setting aside the decrees of the lower courts and granting a decree for declaration of the plaintiff's right to take water from the suit well and for permanent injunction restraining the defendants from interfering with her right, subject to the restriction that the plaintiff could take water from the well to irrigate any of her lands up to the extent of her share in the well.
2. The suit was resisted by the defendants, who are co-sharers having a share in the well. Defendant No. 1 by his written statement at exh. 14 resisted the plaintiff's suit on certain grounds. According to the defendant the suit well was in survey No. 246/3 and not in survey No. 246/2. But this contention is without significance as the plaintiff had subsequently amended the plaint by effecting an appropriate correction. According to the defendant the plaintiff had got only 2/3rd share in the well. Survey No. 24612 exclusively belongs to defendant No. 1. The use of the water is restricted to survey No. 246/1. Therefore the plaintiff cannot take the well water to the other two suit lands. There are some other minor contentions raised by the defendants but for the disposal of this second appeal they are not relevant. The other defendants, who are also co· sharers along with defendant No. 1, by passing a purshis exh. 16, adopted the written statement filed by defendant No.1.
3. The learned Civil Judge framed the relevant issues consistent with the pleadings of the parties. The parties led no oral evidence and they passed a joint purshis to that effect at exh. 23. In other words, both the plaintiff and defendants have relied only on the documents on record. The learned trial Judge came to the conclusion that the plaintiff had 3/4th share in the well standing in survey No. 246/3 She was entitled to take water of the well to her other lands bearing survey Nos. 244/1 and 245/1B. Accordingly, the learned Judge decreed the plaintiff's suit for declaration and permanent injunction to the extent of 3 14th share in the well.
4. The decree was challenged in appeal by the defendants. The learned appellate Judge after consideration of the contentions of the parties came to the conclusion that the plaintiff had 2/3rd share in the well but she had a right to take water from the suit well to the extent of her 2/3rd share to survey No 246/1, only. She could draw the water with the help of an engine after turns were fixed provided she did not draw water from the well in excess of her right. In the result the learned District Judge allowed the appeal and suitably modified the decree of the trial Court.
5. Mr. Hombalkar, who appears for the appellant plaintiff, has challenged the legality of the decree mainly on the ground that the plaintiff's user of the well water cannot be restricted only to her land bearing survey No. 246 II. According to Mr. Hombalkar the appellate Court has committed an error of law while construing the relevant documents which impose no restriction on the right of the plaintiff regarding the use of the well water. For appreciating this contention a few more facts will have to be stated. These facts are not disputed by either party. Survey No. 246/1 is of the ownership of the plaintiff. Survey No. 246/2 belongs to the defendants. The well is situate in survey No. 246/3. It appears that the original survey No. 246 measured 9 acres and 39 gunthas. Under sale deed exh. 25 dated January 6, 1913
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