LEELA Vs. AMBUJAKSHY

JUDGEMENT

(1.) Plaintiff in O.S. No. 13 of 1978 is the appellant. Her suit for declaration of the right to use the pipe line, motor and pump set for drawing water from the plaint Schedule.56 cents to irrigate her land was dismissed by both the courts below. O.S. No. 13 of 1978 was tried jointly with O.S. No. 15 of 1978 filed by the first defendant for injunction restraining plaintiff and others from obstructing the flow of water through the pipe connecting the tank in B schedule property and the tank well in A schedule property. That suit was decreed. But the decision was reversed in appeal and that suit was also dismissed. The decision was not appealed against.

(2.) Plaintiff and first defendant are sisters. They are owners of adjacent lands, which originally formed a compact plot owned by their father Krishnan. He installed a motor and pump set in the tank well in the land which now belongs to first defendant. The entire land was irrigated through pipes from the tank well. Supply of water to the tank well was through underground pipes from a tank in the plaintiff's property. O.S. No. 15 of 1978 was filed because plaintiff obstructed flow of water to the tank well.

(3.) Now the short question for consideration is whether the appellant, especially after she successfully contested O.S. No. 15 of 1978, is entitled to the declaration and injunction. Appellant got the property by Ext.B1 sale deed of 1961 from her father. First defendant also got her land by a sale deed from the father. That was in 1975. It is Ext. A1. Both the sale deeds were transferring absolute rights and possession though the defendants have a case that in spite of the sale deeds, the father was in possession till his death. But there is no case that title did not pass under Exts.B1 or A1. In Ext.B1, there is no condition at all restricting the right transferred to any extent. In Ext. A1 of 1975 also, there is no restriction in the body. But, while describing the schedule of properties, it is said that his second wife and other daughters will have the right to take water from the tank well through the pipe lines for irrigating their lands subject to certain conditions. The claim of the appellant is based on this provision.