When registered sale deeds grant equal rights to a common well, equity cannot modify those rights or grant disproportionate declaratory relief.

JUDGMENT : 

P.B. BALAJI, J.

The plaintiffs, who suffered concurrent findings before the trial Court as well as the First Appellate Court, are the appellants in the present Second Appeal.

2. On 22.02.2023, the above Second Appeal was admitted on the following substantial questions of law:

1. Whether the Courts below are right in dismissing the suit in its entirety when there is an undisputed fact that the plaintiffs and defendants are having equal share in the common well?

2. Whether the documents marked under Ex.A2 to Ex.A9 will prove the possession of the plaintiffs with respect to the suit schedule properties and whether the Courts below are right in dismissing the suit without substantiating the claim of the defendants?

3. I have heard Ms. K. Shwathini, for Mr. G. Prabhu Rajadurai, learned counsel for the appellants, and Mr. B. Rajesh Saravanan, learned counsel for the respondents 1, 3, and 4.

4. The following facts are necessary to adjudicate the Second Appeal.

5. The case of the plaintiffs:

(i) A larger extent of lands comprised in S.No.602/9, to an extent of 3.49 acres out of 4.99 acres, bearing Patta No.1087 (new patta Nos.2041 to 2044), and S.No.730/3, to an extent of 15 cents, bearing Patta No.435, in Silukkuvarpatti Village, Nilakkottai Taluk, Dindigul District, which is the subject matter of the suit property, originally belonged to one Atchimuthu. The mother of the plaintiffs and the defendants purchased the said property by a registered sale deed dated 06.04.1972 for valuable consideration. The mother of the parties, namely Chinnammal, died intestate, and her legal heirs were in possession and enjoyment of the said property. A common well situated in S.No.602/9G forms part of the property under common enjoyment. Electricity connection was obtained by the mother, Chinnammal, in her name. The legal heirs, including the plaintiffs, were in enjoyment. The defendants are adjoining landowners who have purchased an extent of 1.5 acres from one Yannaikutti Servai, and they are also having a right over the common well and are drawing water to their lands for irrigation. The plaintiffs contend that since the defendants are having a lesser extent of land, permitting them to draw water for two days would suffice, and the plaintiffs, being entitled to a larger extent of about 3½ acres approximately, are entitled to draw water for the remaining five days.

(ii) The said suit was resisted by the defendants, contending that the documents under which the plaintiffs and the defendants claim clearly bestow an equal right of enjoyment of the common well, and therefore, the plaintiffs cannot arbitrarily seek a declaration that they are entitled to draw water for five days.

6. Before the trial Court, the first plaintiff examined himself as PW.1, and the second plaintiff examined himself as PW.2. On the side of the plaintiffs, Exs.A1 to A14 were marked. On the side of the defendants, the fourth defendant examined himself as DW.1, and Exs.B1 to B4 were marked. The Commissioner’s report and plan were marked as Exs.C1 and C2.

7. The trial Court dismissed the suit, finding that the plaintiffs are not entitled to a declaration, that they are entitled to draw water for five days from the common well.

8. Aggrieved by the dismissal of the suit, the plaintiffs preferred A.S. No. 56 of 2018 before the Additional Sub Court, Dindigul. The said appeal, on contest, came to be dismissed by judgment and decree dated 09.09.2022. Challenging the said adverse judgment, the present Second Appeal has been filed.

9. Ms. K. Shwathini, learned counsel for the appellants, would state that even though both the plaintiffs and the defendants have been given a right of common enjoyment in respect of the well, when the plaintiffs are admittedly owning a larger extent of 3.5 acres, in contrast to 1.5 acres owned by the defendants, equity would certainly demand that the plaintiffs are proportionately given