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2018 Supreme(Mad) 84
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. DHANDAPANI, J.
Murugesan – Appellant
Versus
Perumal Goundar (died) & Others – Respondent
S.A. No. 1476 of 1994
Decided On : 03-01-2018
For the Appellant :S. Vediappan for M/s. R. Karthikeyan, Advocate.
The central legal point established in the judgment is the entitlement to water rights from a disputed well, based on the defendant's prior enjoyment and irrigation of the land.
Headnote:
Water Rights Dispute - Property Dispute - 1970 (1) MLJ 376 - The court held that the defendant is entitled to take water from the disputed well and irrigate the land in S.No.94/4b, which was purchased in the year 1946. The defendant enjoyed the well right from the year 1946 and he is irrigating the land in S.No.94/4b with the well water right from the year 1946, prior to the plaintiff purchasing the property.
Fact of the Case:
The plaintiff filed a suit for declaration and permanent injunction, claiming entitlement to water rights from a well and seeking to restrain the defendant from interfering with the plaintiff's water usage.
Finding of the Court:
The court found in favor of the defendant, holding that the defendant is entitled to take water from the disputed well and irrigate the land in S.No.94/4b, as the defendant had enjoyed the well right and irrigated the land prior to the plaintiff purchasing the property.
Issues: The issues revolved around the entitlement to water rights from the well, the defendant's enjoyment of the well right prior to the plaintiff's purchase, and the applicability of the 1970 (1) MLJ 376 decision.
Ratio Decidendi: The court's decision was based on the defendant's prior enjoyment of the well right and irrigation of the land, which established the defendant's entitlement to take water from the disputed well.
Final Decision: The second appeal was dismissed, confirming the judgment and decree in favor of the defendant.
1. The plaintiff who lost the case in both the Courts below has filed the second appeal before this Court.
2. The case of the plaintiff is as follows: The plaintiff is the son of one Govindasamy Gounder through his first wife. After the death of the plaintiff's mother, the said Govindasamy Gounder subsequently married one Karupayee, with whom he gave birth to two male and one female child and all are residing in one roof and they are of the Hindu joint family and all of them are entitled to the properties left by the said Govindasamy Gounder.
3. The plaintiff's father had purchased 2/3rd share in the well that is situated in S.No.105/2 from its previous owner Govindasamy Reddiar under a registered Sale Deed dated 15.06.1954. The said well is situated in S.No.105/2 and it is intended to irrigate 54 cents in S.No.105/1, 1.35 acres in S.No.105/2 and 5.38 acres in 105/3. Only the above said survey nos. are covered under the Ayacut of the well in S.No.105/2. Remaining 1/3 share of the well in S.No.105/2 was purchased by one Korakka Gounder along with 1.35 acres in S.No.105/2. The defendants purchased the property in S.No.94/4b by an extent of 3.58 acres from Surutayya Gounder under Sale Deed dated 29.01.1944. The said Korakka Gounder enjoyed the above said lands in S.No.105/2 and S.No.94/4b.
4. The said properties owned by Korakka Gounder was subsequently purchased by the defendant and after purchase, there is no prescriptive title for taking water from the well in S.No.105/2 to S.No.94/4b. Hence, the defendant taking water from the said well and irrigating S.No.94/4b is illegal. Hence, the appellant/ plaintiff filed suit for declaration and permanent injunction declaring that the plaintiff is entitled to take water to S.Nos.105/1 and 105/3 from the well in S.No.105/2 and permanent injunction restraining the defendant, his men, agents and servants from in any manner interfering with the plaintiff's taking water from the well in S.No.105/2 to S.Nos.105/1 and 105/3 of Agram village hamlet of Radhapuram and permanent injunction against the defendant, his men, agents and servants from in any manner taking water from the well in S.No.105/2 to S.No.94/4b of Agram village hamlet of Radhapuram and costs.
5. The case of the defendant is as follows: There is no dispute regarding the fact that the well is situated in S.No.105/2. The land in S.No.94/4b along with the land in S.No.105/2 originally belonged to one family and S.No.94/4b had been within the Ayacut of the suit well all along. Infact, one Korakka Gounder, the original owner had been cultivating in S.No.94/4b all along taking water from the well in S.No.105/2 and S.No.94/4b was purchased by Korakka Gounder from one Surutayya Gounder vide document dated 29.01.1944. Thereafter the said Gorakka Gounder also purchased the disputed well land in S.No.105/2. Subsequently, the defendant purchased both the lands in the year 1946 through Sale deed dated 06.03.1946.
6. From the date of purchase i.e., 1946 onwards, the defendant enjoyed the suit property and he is cultivating the lands by taking water from the well in S.No.105/2. Therefore, the defendant all along had been cultivating only by taking water from the well in S.No.105/2 and irrigating the said water to S.No.94/4b. The said S.No.94/4b is well within the Ayacut of the said well. Infact, the defendant as well as his predecessor in title had been taking water to S.No.94/4b all along from the well in S.No.105/2. However, the plaintiff purchased the property only in the year 1954 and till filing of the suit in the year 1979, there is no disturbance between the plaintiff and the defendant. However, for the reasons best known to the plaintiff, he has filed the present suit with a new plea in the year 1979.
7. The defendant also averred in his written statement, that the defendant's vendor namely, Gorakka Gounder was entitled to ½ right in the well by registered sale deed dated 06.03.1946. The said Gorakka Gounder conveyed his rights thr
