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IN THE HIGH COURT OF MADRAS
G. Jayachandran, J.
Marriannan and Ors. - Appellants
Vs.
Palaniappan and Ors. - Respondent
S.A. No. 1511 of 2007
Decided On : 10-012-2020
Easement - Right to Draw Water - The court upheld the right of the plaintiffs to draw water from a common well and carry it through a channel to irrigate their land, based on the historical use of the well by the entire family and the absence of an alternative water source for the plaintiffs' land.
Fact of the Case:
The defendants contested a suit filed by the plaintiffs for the right to draw water from a common well and carry it through a channel to irrigate their land. The trial court and the first appellate court ruled in favor of the plaintiffs based on historical evidence and the Commissioner's report.
Finding of the Court:
The court found that the plaintiffs were entitled to draw water from the common well to irrigate their land, and there was no error in the findings of the lower courts. The Second Appeal filed by the defendants was dismissed.
Issues: The main issue was the right of the plaintiffs to draw water from the common well and carry it through a channel to irrigate their land, contested by the defendants.
Ratio Decidendi: The historical use of the well by the entire family and the absence of an alternative water source for the plaintiffs' land supported the court's decision to uphold the plaintiffs' right to draw water from the common well.
Final Decision: The Second Appeal was dismissed, and the court affirmed the right of the plaintiffs to draw water from the common well to irrigate their land.
JUDGMENT :
Dr. G. Jayachandran, J.
1. This Second appeal is filed by the defendants against the concurrent findings of the Courts below which had decreed the suit filed for declaration of his right to draw water from Survey No. 62/1F2 to land in Survey No. 62/1G by water pipeline and to the land in Survey No. 62/1C by water channel to the land of the defendants in Survey No. 62/1E and consequently injunction restraining the right of the plaintiff drawing water from the well.
2. The suit was contested by the appellants herein on the ground that the defendants have no right over the property to an extent of 1.010.74 ares situated in Survey No. 62/1F, 62/1G and 62/1C. The claim of 1/2 share over the well situated in Survey No. 62/1F2 and the right of drawing water in the said well to the channel passing through Survey No. 62/1F and 62/1E to reach the land to irrigate were all denied.
3. The trial Court, appointed an Advocate Commissioner and got his report, after framing relevant issues allowed the suit based on the evidence let in by the parties. The trial Court finding was based on the Commissioner's report which specifically mentioned that there is water tank situated in Survey No. 62/1F2 and Survey No. 62/1G and there is a hole in the water tank for carrying the water to irrigate the land situated in other Survey Numbers. There are two water tanks. They are not newly constructed water tanks. This obviously indicates that the land in Survey No. 62/1G, which has no independent water source to irrigate and it is irrigated only through the common well, which is the source of water and carried, though the channel and water tanks in Survey No. 62/1F and 62/1G. Further the entire extent of Survey No. 62/1 is originally enjoyed by one family, subsequently it was divided among the brothers. The well is the common source of irrigation for the entire land falling in the Survey No. 62/1. Therefore the right of drawing water from the common well through the channel to irrigate the land cannot be prevented.
4. The said decision of trial Court was appealed and the first appellate Court reiterated the finding of the trial Court and confirmed the same.
5. This Second Appeal is filed by the aggrieved defendants challenging the concurrent finding of the Courts below. The judgment of the Courts below impugned on the ground that the Courts below erred in relying upon the Commissioner's report and its plan for deciding in favour of the plaintiffs regarding the easement. When there is no title for well and channel, the Courts below ought not to have deciding in favour of the plaintiffs. Existing of two cement water tanks at Survey Nos. 62/1G and 62/1F and the evidence of PW. 1 with regard to no alternate source of irrigation for the plaintiffs land was wrongly considered by the Courts below and declaratory relief in favour of the plaintiffs to draw water through defendants land is granted merely on presumption.
6. The matter, when came for hearing on the earlier occasions, there was no representation for the appellant and therefore this Court dismissed the Second Appeal on 10.09.2014 for non prosecution. Thereafter the 5th appellant has filed petition to restore the second appeal on file. Upon hearing the submissions made by the learned counsel for the appellants and the averments made in the affidavit, this Court restored the second appeal on file vide order dated 11.11.2020 and posted the matter for final hearing today. Today, when the matter was taken up for hearing, there is no representation for the appellant.
7. The learned counsel for the respondents made his submission that the Courts below after considering the facts have rightly held that the entire extent of land in Survey No. 62/1 was once held by the same family members. Later on by partition it is sub divided into various survey numbers. While so, the common source for irrigation for entire land is the well located in Survey No. 62/1F2.
8. This Court after considering the sketch of the Commis
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