JUDGEMENT

26 th July, 2024 SASHIKANTA MISHRA, J. This is an appeal by the Defendant against a reversing judgment Impugned is the judgment dated 17.05.2003 followed by decree passed by learned Civil Page 2 of 14 Judge (Sr. Division) Banki in Title Appeal No.1 of 2002 whereby the judgment dated 13.08.2002 followed by decree passed by learned Civil Judge (Junior Division), Banki in Title Suit No.12 of 1998 was reversed.

2. For convenience, the parties are described as per their status in the trial court.

3. Before adverting to the facts of the case, it would be apposite to refer to the genealogy showing the relationship between the parties.

Bidyadhar Sahoo Banamali Ramachandra Haribandhu Balabahdra Jagannath (Plff.1) Sachi Aparti Dayanidhi Rabindra (Defd) (Plft.2)

4. The suit in question was filed by the Plaintiff for declaration of their right, title and interest over their ancestral well and right to draw water by consent and for permanent injunction against the Defendant. The case of the Plaintiffs is that Banamali and Ramchandra, the sons of Bidyadhar, amicably partitioned their ancestral Page 3 of 14 properties by metes and bound and mutated their respective properties separately in the major settlement.

Plot No.275 being the suit plot measuring an area of Ac.0.07 decimals fell to the share of Ramachandra being recorded under Khata No.239. His two sons, namely, Balabhadra and Jagannath divided his homestead land including the suit land among themselves through a registered partition deed on 16.06.1969. The suit plot including the suit well over that plot fell to the share of Balabhadra. However, right was given to the Plaintiffs to draw water from the suit well. Right was also given to Sachi and Aparti belonging to the other branch in the settlement ROR. But Aparti transferred his share to an outsider, which is in between the suit plot and the land of Sachi. As such, neither Aparti nor Sachi are utilizing the suit well since long. The Plaintiffs’ land stands on Plot No.274, which is on the southern side of the suit plot.

Plaintiff No.1 constructed a boundary wall on the northern side of Plot No.274 with a door near the well to access it for his personal use. The depth of the well is forty feet but the water level goes down in summer season making it Page 4 of 14 difficult to draw water by buckets, so the Plaintiff No.2 purchased an electric pumpset and fitted the same on the passage to the well along with pipe. Since then, the Defendant picked up quarrel and threatened to remove the pipe. Hence, the suit.

5. The Defendant contested the suit by filing written statement. All the plaint averments relating to the description of the properties and the partition deed were admitted but the Plaintiffs’ claim of title over the suit well was specifically disputed. According to the Defendant, the Plaintiff only had the right of drawing water. It was specifically provided in the partition deed that the Plaintiff would open a door on the boundary wall, which would be open only at the time of drawing water and would remain closed for rest of the time to maintain the privacy of the Defendant. Further, the Plaintiffs has no right to draw water by using an electric pump.

6. Basing on the rival pleadings, the trial court framed the following issues for determination :-

“ 1. Is the suit maintainable?

Page 5 of 14 2. Have the plaintiffs any cause of action to file the suit?

3. Whether the suit is bared by limitation?

4. Whether the suit is defective for non-joinder of the parties?

5. Whether the plaintiffs are entitled to draw water from the ancestral well by putting pipe line and electric motor?

6. Whether the defendant is liable to be restrained from objection the