No order of permanent injunction in favour of plaintiff can be passed.

1. The plaintiff who failed before the courts below in getting a decree for declaration and permanent injunction has filed the above Second Appeal.

2. It is the case of the plaintiff that he is the co-owner with respect to the lands bearing Survey Nos.234/1 and 234/2. There is a well meant to irrigate the said lands. Defendants 1 to 4 are the brothers of the plaintiff/appellant, and the 5th defendant is his mother. The defendants 1 and 5 purchased the lands bearing Survey Nos.227/6A and 227/6C. According to the plaintiff, the defendants/respondents are not entitled to take water from the suit well to the said lands. So, he filed the suit in O.S.No.127 of 1983 on the file of the learned District Munsif, Manamadurai to get a decree to that effect. The 1st defendant filed written statement and the defendants 2 to 5 have adopted the same. According to the defendants they have been enjoying the suit lands separately, though no partition was effected between the brothers. According to the defendants, the plaintiff is not enjoying the suit lands bearing Survey Nos.234/1 and 234/2. Since they could not cultivate the said lands, the defendants 1 and 5 want to take water for the said lands, from the suit well, which they have purchased for the purpose of cultivation, by which, according to the defendants, the plaintiff would not get any loss, as they are not cultivating the said lands quite a long number of years. According to the defendants, they are taking water only for four days for which they are entitled towards their share. They have been taking water from 1971. So, the plaintiff cannot prevent the defendants from taking such water.

3. The lower court accepting the case of the defendants, dismissed the suit. Aggrieved against the same, the plaintiff/appellant filed appeal in A.S.No.84 of 1985 on the file of the Sub Court, Sivaganga. The learned Sub Judge also concurred with the findings of the lower court and dismissed the appeal. Still aggrieved, the appellant has filed the above Second Appeal.

4. The only question that arises for consideration in this Second Appeal is whether the respondents/defendants are entitled to take water from the suit well to any other lands, which are not attached to the suit well.

5. Admittedly only the lands bearing Survey Nos.234/1 and 234/2 are attached to the suit well. The lands for which the respondents/defendants want to take water from the suit well are purchased only in 1971 and 1973. On that basis the learned counsel appearing for the appellant/plaintiff has submitted that the defendants have no right to take water from the suit well to any other lands, except the lands attached to the suit well. This submission is supported by a number of decided cases. In the decision in Valliammal v. Udayar Konar, (1945)1 MLJ. 1 (N.O.C.),while dealing with similar issue, Chandrasekhara Ayyar, J., has held as follows:

“Where the joint ownership of a well is an incident to the joint ownership of certain lands (to irrigate which the well was to be used) acts of enjoyment referable to the ownership of the well must necessarily appertain to the ownership of those lands and cannot relate to or follow the ownership of any other land or lands. Any infraction of the joint right of ownership is liable to be prohibited by injunction even though no damage be proved. It is not open to one of the owners to take water irrigating other lands and contend that he has not exceeded his share of the right to take water from the well.”

6. Again in the decision in Palani Gounden v. Karuppa Goundan, (1954)2 MLJ. 58 (N.O.C.)Govinda Menon, J., has held as follows:

“The use of the water in an irrigation well is so intimately related tothe cultivation of the field in which it is situated that a co-owner cannot take away the water for use in any other field which he might have acquired subsequently. The right in the well owned by two persons jointly cannot be dissociated from the land to which the well is attached and any div