Ownership of water in a well is independent to the ownership of land.

Challenge in this appeal is to the judgment and decree dated 27/1/2005 passed in Appeal Suit No.131 of 2004 by the Principal Sub-Court, Tenkasi, wherein the judgment and decree dated 18/10/2004 passed in Original Suit No.456 of 2003 by the Principal District Munsif Court, Tenkasi are reversed in part.

2. The present appellant as plaintiff has instituted the Original Suit No.456 of 2003 on the file of the Principal District Munsif Court, Tenkasi for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as the defendants.

3. The epitome of the averments made in the plaint may be stated like thus:-

The properties mentioned in the schedules 1 to 3 is originally belonged to the family of the plaintiff. The second schedule and some other properties have been allotted to the share of the mother of the plaintiff viz., Vellaiammal under a partition deed dated 24/3/1976. After her demise, the plaintiff and his brother viz., Sivalinga Raja have effected partition and in the said partition, the suit second schedule property has been allotted to the share of the plaintiff. The well mentioned in the suit first schedule has been dug up only for the suit 2 and 3 schedule properties. The suit 2 and 3 schedule properties are alone entitled get water from the common well mentioned in the suit first schedule. The defendants have purchased the suit third schedule. The plaintiff is having 1/6th share and the defendants 1 and 2 are having 5/6th share in the common well mentioned in the suit first schedule. The defendants have demanded the plaintiff to sell the suit second schedule for a paltry sum. Since the plaintiff has refused to concede the demand of the defendants, they are making arrangements to irrigate the property mentioned in the fourth schedule by taking water from common well. Under the said circumstances, the plaintiff has filed the present suit for the relief’s indicated supra.

4. The nubble of the averments made in the written statement filed by the defendants may be stated like thus:-

It is true that the ancestor of the plaintiff has dug up the well mentioned in the first schedule for the purpose of irrigating the properties mentioned in the second and third schedule. But it is false to contend that the properties mentioned in the second and third schedule are alone entitled to get water from the well mentioned in the first schedule. The father of the defendants viz., R. Subramania Nadar has purchased 1/6th share in the well mentioned in the first schedule under a registered sale deed dated 12/10/1972. The father of the defendants has irrigated the land which is mentioned in the fourth schedule by using the common well mentioned in the suit first schedule. In the common well, there is a perennial supply of water. The defendants are entitled to irrigate the property which is mentioned in the fourth schedule by taking water from the common well. There is no merit in the suit and the same deserves dismissal.

5. On the basis of the divergent pleadings raised by either party, the trial Court has framed necessary issues and after contemplating both the oral and documentary evidence has dismissed the suit in toto. Against the judgment and decree passed by the trial Court, the aggrieved plaintiff has preferred Appeal Suit No.131 of 2004 on the file of the Principal Sub-Court, Tenkasi. The First Appellate Court after reappraising the evidence available on record has allowed the appeal in part and granted the reliefs sought for in respect of the property mentioned in the second schedule and confirmed the judgment and decree passed by the trial Court in respect of other relief’s sought for in the plaint. Against the judgment and decree passed by the First Appellate Court, the present Second Appeal has been filed at the instance of the plaintiff.

6. At the time of admission of the present Second Appeal, the learned counsel appearing for both sides have agreed to argue the appeal itself