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1983 Supreme(Mad) 435
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SENGOTTUVELAN
Ponnuswamy Gounder & Others
Versus
Balakrishna Gounder
Appeal Nos. 2258 of 1978 & 274 of 1981
Decided On :Decided on : 30-08-1983
For the Appellants:R.N. Kothandaraman & R. Shanmugam, Advocates.
For the Respondents:K. Swamidurai & T. Srinivasan, Advocates.
The rights in a well cannot be dissociated from the lands to which the well is attached and the co-owner was not entitled to divert the water for irrigating other lands.
Headnote:
WATER RIGHTS - CO-OWNERS OF A WELL - EXTENT OF RIGHTS - USE OF WATER FOR LANDS OTHER THAN THOSE ORIGINALLY INTENDED - RESTRICTIONS - PRINCIPLES GOVERNING.
Fact of the Case:
The plaintiff and defendants were co-owners of a well. The plaintiff filed a suit for a permanent injunction restraining the defendants from taking water from the well to irrigate lands other than those originally intended. The defendants contended that they were entitled to use the water from the well to irrigate any of their lands, whether originally owned or newly acquired by them.
Finding of the Court:
The court held that the ownership of water in the well was not independent of the ownership of the land. Hence the use of the water for lands other than that for which the well is intended is not permissible.
Issues: 1. Whether a co-owner of a well is entitled to use the water from the well to irrigate any of his lands, whether originally owned or newly acquired by him? 2. Whether the ownership of water in the well is independent of the ownership of the land?
Ratio Decidendi: 1. The court held that the rights in a well cannot be dissociated from the lands to which the well is attached and the co-owner was not entitled to divert the water for irrigating other lands. 2. The court held that the ownership of water in the well is not independent to the ownership of the land.
Final Decision: The court allowed the plaintiff's suit in part and granted a permanent injunction restraining the defendants from taking water from the well to irrigate lands other than those originally intended.
1. The defendants in the suit O.S. No. 257 of 1976 on the file of the Court of the District Munsif, Tiruvannamalai, (the plaintiffs in O.S. No. 309 of 1976 and the respondents in S.A. No. 274 of 1981) are the appellants in S.A. No. 2258 of 1978. Similarly the plaintiff in the suit O.S. No. 257 of 1976 on the file of the Court of the District Munsif, Tiruvannamalai (the defendants in O.S. No. 309 of 1976 and the respondent in S.A. No. 2258) is the appellant in S.A. No. 274 of 1981.
2. Since the subject matter of both the appeals is the same and the parties are also common, both the appeals are taken up for consideration together. For the sake of convenience the parties are referred to as per their ranks in O.S. No. 257 of 1976.
3. The facts of the case are briefly as follows:— The plaintiff filed a suit O.S. No. 257 of 1976 against the defendants for the relief of permanent injunction restraining them from taking water from the well situate in plaint A Schedule to the lands comprised in plaint B Schedule. The case of the plaintiff is that the well in question belongs to him and the defendants. The plaintiff has got 1/3rd share in the well; the defendants are jointly entitled to 1/3rd share in the well and one Narayanaswamy Gounder vagaira is entitled to another 1/3rd share in the well. The plaintiffs 1/3rd share in the well is mentioned in the registered mortgage deed, dated 1st May, 1958. The defendants are brothers and the properties comprised in plaint B Schedule belong to them. The well in plaint A Schedule is intended to irrigate the survey number 73 of an extent of 7.42 cents. Survey No. 73 was sub-divided into S. Nos. 73/1 to 73/8. In the said sub-divisions, the well is situate in S. No. 73/2. The said well was dug up by the forefathers of the plaintiff and the defendants. Neither the defendants nor anybody has any right to take water from the well in plaint A Schedule to other survey numbers mentioned in plaint B Schedule. Some of the properties mentioned in plaint B Schedule are ancestral properties of the defendants. The properties covered by B Schedule are not within the ayacut of the well mentioned in plaint A Schedule. The defendants have no right to take water from the well in plaint A Schedule to the lands in plaint B Schedule. The well was originally dug in S. No. 73/2 but later on the well was expanded and due to expansion of the well, the well covers some extent in S. No. 74/2. Item 8 of the plaint B Schedule property was purchased by the defendants father under two sale deeds dated 6th May, 1964 and 2nd July, 1964. 6th item of B Schedule was given to the defendants father by an exchange deed dated 10th March, 1958. 1st item of B Schedule was purchased by the defendants father under two sale deeds dated 6th May, 1964 and 30th April, 1958. Items 2 to 5 of B Schedule properties were purchased by the defendants father under a sale deed dated 30th April, 1958. Items 7, 9, 10 and 11 fell to the share of the defendants father Ramaswamy Gounder in the partition. The said lands are not within the ayacut of the well situate in plaint A Schedule. The defendants tried to lay a pipeline in January, 1976 to take water to B Schedule properties. But that was prevented by the plaintiff. The defendants have no right to take water to plaint B Schedule properties from the well in plaint A Schedule. If the defendants are allowed to take water to B Schedule lands, the water in the well will be diminished and the plaintiff may not be in a position to irrigate his lands. Hence the plaintiff prayed for a permanent injunction restraining the defendants taking water from the well in plaint A Schedule to plaint B Schedule properties.
4. The case of the defendants is that the plaintiff has less than 1/7th share in the suit well The suit well is situate in S. Nos. 73/2 and 74/2. The allegation in the plaint that the well is in S. No. 73/2 alone is not correct. The well belongs to the forefathers of the plaintiff and the defendan
