Co-owners' rights to draw water from a common well and use modern methods for drawing water, as long as it does not prejudice the other co-owner's rights.

1. Second Appeal No. 837 of 1999 has been preferred by the sole plaintiff in O.S. No. 28 of 1985 on the file of the District Munsif Court, Sankarankovil being aggrieved by the Judgment and decree dated 30.7.1999 made in A.S. No. 46 of 1996 on the file of the Principal Sub Court, Tenkasi in confirming the judgment and decree of the learned District Munsif in O.S. No. 28 of 1985.

2. Second Appeal No. 838 of 1999 has been preferred by the sole plaintiff in O.S. No. 112 of 1985 on the file of the District Munsif Court, Sankarankovil being aggrieved by the Judgment and decree dated 30.7.1998 made in A.S. No. 45 of 1996 on the file of the Principal Sub Court, Tenkasi in confirming the judgment and decree dated 1.3.31996 made in O.S. No. 112 of 1985 on the file of the District Munsif Court, Sankarankovil.

3. The same plaintiff, who has been unsuccessful before the two courts below in both the suits, is the appellant in both the appeals. These two appeals have been preferred against the concurrent judgment of the two courts below. The findings rendered by the two courts are also concurrent.

4. Heard Mr. K. Srinivasan, learned counsel for, the appellant in both the appeals and Mr. R. Thirugnanam, learned counsel appearing for the respondent Nos. 1 and 2 in both the appeals who have lodged caveat.

5. O.S. No. 28 of 1985 was instituted by Swamy Aiah praying for declaration that the plaintiff is the absolute owner of the suit property only in which the well is situate and consequently grant a permanent injunction restraining the defendants from putting up electric motor pump set or mechanical process to draw water or take water from the suit well in the property belonging to the plaintiff in derogatory to the present accustomed mode through mamool Kamalai and for costs. The suit O.S. No. 126 of 1985 has been instituted by the very same plaintiff seeking for the judgment and decree (1) directing the defendants 1 to 5 to pay Rs. 2000/- to the plaintiff by way of damages with subsequent interest (ii) to grant a permanent injunction restraining the third defendant from supplying electricity connection to the defendants 1 and 2 (iii) for costs and for consequential reliefs.

6. According to the plaintiff the suit property absolutely belonged to the plaintiff and he is entitled to 2/3rd share water in the well located in old Survey No. 176/1 corresponding to new Survey No. 176/132. The further case of the plaintiff is that he is in possession and enjoyment of the suit property which originally belonged to his father under the family arrangement under which the plaintiff has succeeded to the property. The family arrangement has been effected between the plaintiffs father and first defendants father Shanmuga Konar. It is the further case of the plaintiff that his father dug a well in his patta land comprising Survey No. 176/1 in the year 1939 of his own and by an arrangement he agreed to share the water in the well in the ratio 2:1. The defendants father had paid Rs. 150/- only towards the amount spent for digging the well and he has been given 1/3rd share of water in the well as per the oral arrangement entered between the plaintiffs father Udayar Konar and his brother Shanmuga Konar during 1940. As per the said arrangement, the two brothers have been enjoying the suit well till recently. The defendants can enjoy the right of taking 1/3rd share of water and they cannot have any right either in the patta land belonging to the plaintiff in which the well is located. According to the plaintiff for the last 45 years or so, the well is being enjoyed in the said ratio. In the registered Othi deed also, the same has been reiterated. The water from the well has to be drawn for agricultural purpose and the defendants are entitled to draw 1/3rd share of water. The said right is an easmentary right to a limited extent. Even if it is assumed to be a right, such a right is restricted to 1/3rd. The defendants father was drawing water in the same mann