Defendant to prove copious supply of water from the well.

The plaintiff in O.S.No.564 of 1991 on the file of the District Munsif, Polur, has preferred the second appeal aggrieved against the judgment and decree of Sub Court, Tiruvannamalai in A.S.No.9 of 1996 dated 3.3.1997, reversing the judgment and decree of the trial Court dated 22.11.1995.

2. Thecase in brief is as follows:

The plaintiff filed a suit for permanent injunction that the water from the well in A Schedule property should not be taken B Schedule property by the defendants and their men. S.No.145 measuring 1.01 acre, S.No.117/1 measuring 20 cents. S.No.117/3 measuring 84 cents and other properties in Kalasamudiram village are ancestral properties of the plaintiff. These properties were divided by the plaintiff and his brother under a registered document dated 24.12.1988. There is a well in S.No.145 and 3 HP Motor Pumpset and 5/16 share in the well. Subsequently, the share allotted to the plaintiffs brother was, also purchased by the plaintiffs brother was, also purchased by the plaintiff under a registered document dated 1.3.1990 and as such the plaintiff had acquired 1/16 share in the suit well. One Duraisami Gounder also has got right in 1 acre 15 cents in S.No.117 and 11 cents in S.No.145 and also 1/4 right in the well. The said Duraisami Gounder conveyed his right to the Ist defendant under a registered document dated 31.12.1951. According to the plaintiff, the well after in S.No.145 can be irrigated only to the aforesaid survey numbers and they are the ayakattu lands. None of the parties have got right to take water to other survey numbers. D-2 son of D-1 had purchased the B schedule Property from a 3rd party under a registered document dated 14.5.1991 in S.No.118, which is outside the ayakattu. The defendant attempted to take water from the suit well to the B Schedule property also. The water in the well is available for irrigating only the ayakattu lands and not for other lands. Hence, the suit.

3. The defendants resisted the suit stating that the plaintiff as well as the defendants have got right in the well. But, there is no ayakattu lands as contended by the plaintiff. There is copicous supply of water in the well and other lands also can be irrigated from the water in the suit well. D-1 had also purchased right in the well. But, the survey number has been wrongly mentioned as 117. There is also a dividing wall in the well in the A Schedule property and each parties had been taking water from their respective portions in the well and this being so, the plaintiff is not entitled to claim the relief of permanent injunction restraining the defendants and their men from taking water to the other lands. Even during dry seasons about 10 acres of land can be irrigated from the water in this well. The trial Court framed 5 issues and the plaintiff was examined as P.W.1 and D-1 was examined as D.W.1 and Exs.A-1 to A-3 and B-1 and B-2 were marked. After hearing the parties the learned District Munsif decreed the suit in favour of the plaintiff and aggrieved against this the defendants preferred A.S.No.9 of 1996 on the file of Sub Court, Tiruvannamalai and the appeal was allowed and the judgment and decree of the trial Court wee set aside and the suit was dismissed. Aggrieved against this, the plaintiff has come forward with the present second appeal.

4. Theplaintiff/ appellant raised the following substantial questions of law:

• (i) Whether the lower appellate Court is right holding that the co-owner of the well could burden the well by creating new ayacats, that are not even his acquisitions?

• (ii) Whether the lower appellate Court is not in error in holding that the well could be burdened with lands that are not the subject matter of irrigation earlier and the plaintiff should prove the extent of damage?

• (iii) Whether the lower appellate Court is not in error in not following the judgment of the Madras High Court in Sivarama Pillai and others v. Marichami Pillai Sivarama Pillai and others v. Marichami