RAMACHANDRA GOUNDER Vs. VENKATACHALA GOUNDER

JUDGEMENT

(1.) THIS appeal by the defendant in a suit for a permanent injunction restraining him from taking water from the well in S. No. 299/4-B in Vellakuttai village to his field in S. No. 301/1 in the same village, involves a question of some interest and importance. The question might be-stated in essence, as the application of the appropriate legal principles of the rights of the co-owners in a common source of irrigation, to the facts. For this reason the facts themselves have to be precisely enunciated and considered, and 1 shall address myself to this task first.

(2.) IT is admitted that the suit well is in a separate sub-division, namely S. No. 299/4-B and that the plaintiff and the defendant each has a half right or share in this well. It is very important to note that the prior history of this matter shows that the well was irrigating a number of fields not precisely ascertained a certain part of the area now being in the undoubted ownership are possession of the plaintiff. I may also add here that the area in the possession of the plaintiff irrigable from this well is Ac. 3-35 cents. The case of the plaintiff was that the defendant was entitled to take water from the suit well only for the irrigation of S. No. 299/4-C, 299/4-A and 299/3-B, aggregating to Ac. 1-68 cents. The most striking feature of this case, which distinguishes it from the facts of Nanjappa goundan v. Ramaswami Goundan, is that there is no specific document to show that the user of the suit well, was restricted to designated survey numbers. on the contrary all that can be gleaned from the evidence, whether oral or documentary, about the history of this well is that it is in a separate sub-division (S. No. 299/4-B) and that the-water from this well has been irrigating lands which included 8. No. 299/3-A in the possession of the plaintiff, and also probably such lands as S. Nos. 299/4-C, 299/4-A and 299/3-B. Nor can it be said that each party who owns a moiety interest in the well today, namely, the plaintiff and the defendant, derived their rights only with reference to the irrigation of specific and determined survey numbers. What happened was that subsequently the father of the defendant obtained S. No. 301/1 under Ex. A-3, and that there was a partition in, the family of the defendant evidenced by Ex. B-2 under which the defendant obtained a portion of S. No. 301/1 which was not irrigable from the well in that field. The question is, whether the defendant is entitled to take water from the suit well for irrigating part of S. No. 301/1 in his title and enjoyment, so long as the total area irrigated by the defendant from the suit well dons not exceed the extent irrigable from the well and held by the plaintiff, who is an equal sharer (A. 3. 35 cents ). The first court thought that the defendant had such a right, and dismissed the suit. In first appeal, the learned additional Subordinate Judge has reversed this decision, mainly because he thought that the judgment of Satyanarayana Rao J. in enunciated a principle which barred the defendant from irrigating S. No. 301/1, or any part thereof with water from the suit well.

(3.) I might at once state that, after a careful scrutiny of the facts of this case, I am convinced that it is wholly distinguishable from the facts which gave rise to the decision in Further, the principle enunciated in that decision has to he interpreted in relation to the facts of that case, and has no application to the present facts. That was a case-in which the well was situate in a particular survey number (No. 309) and there was a notional division of the well between the sharers, the history of the matter indicating beyond any possibility of doubt that the well was to irrigate S. No. 309 alone, and not any other piece of property. In other words, the principle of restriction was clearly applicable to the facts. Actually, the courts below in that case interpreted the matter differently on the assumption that the well itself was partitioned between the parties, so that one sharer could take as much water as he liked, consistent with the division of the well, to irrigate any property that he pleased. Satyanarayana Rao J. observed that there can be no physical division of the well, that the division of the well was purely notional, that the history of the matter showed beyond any doubt that the well was intended to irrigate only S. No. 309 and no other land, and hence that the water from the well could not be taken by one of the parties to irrigate S. No. 287 recently purchased by that party. The learned Judge observed, "the rights in the well cannot be considered to be dissociated with from the land to which the well was attached. " and again he stated that such rights were coextensive with the rights to irrigate the respective shares in S. No. 309.