Right to take water is inseparably connected with lands.

This second appeal arises out of a dispute between owners of adjacent lands who also had joint rights in a well. The family of the plaintiff and defendants 1 and 2 (hereinafter referred to as the defendants) owned certain items of lands of a total extent of 4 acres and 17 cents which were irrigated by a well situate in the lands. Under a partition arrangement of the year 1952, the properties were divided equally and two items of lands of total extent of 2 acres 3 cents were allotted to the plaintiff and 2 acres and 14 cents were allotted to the defendants It is common ground that as an integral part of this partition arrangement both the branches would have equal rights to take water from the well and that that right should be worked out by the plaintiff taking water from the well for three days and the defendants in the next three days thereafter, (not even a case of one party taking for four days and the other party three days in the week). In the nature of things, a well cannot be divided by metes and bounds and persons who own joint rights in a well (to the right of the water in the well) can enjoy that right either jointly or separately only by resort to a workable arrangement safeguarding and securing the right to irrigate the lands allotted to the respective branches The complaint of the plaintiff is that in 1960, the defendants newly purchased two items of lands on the west of a total extent of 99 cents and irrigated the same from the well in question and that this act of the defendants abstracting water from the well for irrigating the lands newly acquired had resulted in a substantial diminution of water and thus seriously interfered with the plaintiff’s right to take water from the well during his turn. This was the plaintiff’s complaint in the notice issued on his behalf which preceded the suit. In the reply notice sent on behalf of the defendants, they did not traverse the plaintiff’s case of the injury or damage sustained by him; the defendants accepted the fact of their having taken water from the well to irrigate the lands newly acquired by them but rested their claim on a panchayat at which it was settled that the defendants would be entitled to take water for irrigating the lands newly acquired and that the plaintiff would also be similarly entitled to take water to irrigate certain lands on the west which he too acquired In the course of the trial the defendants desired a local inspection of the property and the well in question as the inspection would reveal that water from the well was being used to irrigate the lands newly acquired by the plaintiff as well as the defendants, a circumstance which would corroborate the case of the panchayat put forward by the defendants. It is in connection with this and for other purposes a Commissioner was appointed by the trial Court to inspect the property and the Commissioner submitted a report, Exhibit A-5 with a plan, Exhibit A-4. The trial Court upheld the contentions of the defendants and dismissed the plaintiff’s suit. But on appeal, the lower appellate Court came to a contrary conclusion. It did not accept the case of the panchayat; it also held that the right to take water from the well was inseparably connected with the lands which formed the subject matter of the partition arrangement, that the lands cannot be dissociated from the well and that the defendants had no right to take water to irrigate the lands newly acquired by them. Hence the second appeal by the defendants.

Learned Counsel for the appellants, Mr. K. S. Desikan, raised two points: (1) A person who has got a joint right in a well along with others (in other words a co-owner of a well) is entitled to use the water from the well to irrigate any land he likes, whether originally owned or newly acquired by him, so long as the co-owner conforms to the working arrangement already entered into between the several co-owners as to how and in what manner they should take water from the well, wheth