AYYASWAMI GOUNDER Vs. MUNNUSWAMY GOUNDER

JUDGEMENT

(1.) The present appeal of the plaintiff-appellants by special leave is directed against the judgment of the High Court dated 7th April, 1978 reversing the judgment and decree of the two courts below and dismissing the suit.

(2.) The appellants filed a suit for declaration of their right to take water from their exclusive well marked W. 1 in the site plan attached with the plaint and situate in a plot of land exclusively belonging to them, through a portion of a channel to their plots at survey Nos. 95 and 96 lying to the north of the common well W. 2 in the joint land of the parties and for a consequential relief of permanent injunction restraining the defendants respondents from interfering with the enjoyment of the plaintiffs' right to take water from W. 1 through the aforesaid channel.

(3.) The parties are descendants from a common ancestor and they owned joint properties. A partition took place between the parties in or about 1927 whereunder survey Nos. 95 and 96 fell to the share of the plaintiffs and 15 cents of land in plot No. 96/5 in which the common well W. 2 is situate and the channel running from that common well were, however, kept joint for the common enjoyment of the parties. Water from well W. 2 situate in plot No. 96/5 was not sufficient enough to irrigate the lands of both the parties got by them in the said partition. The plaintiffs therefore were irrigating their lands from the well in survey No. 103/2 purchased by the father of the plaintiffs in 1928 in the name of plaintiffs' mother under Ext. A. I and they were irrigating their land obtained in partition through the common channel from their own well in survey No. 103/2 by connecting the common channel in the common land in survey No. 96/5 by means of a small channel to take water to their lands in survey Nos. 96/3, 96/1, 95 and 92. The defendants objected to the use of the common land in survey No. 96/5 and the common channel running in survey No. 96/5 for taking water from their exclusive well in survey No. 103/2. Hence the plaintiffs were obliged to file the suit mentioned above.