KARUPPA GOUNDAR Vs. MUTHUSWAMI GOUNDAR

JUDGEMENT

(1.) The plaintiff is the appellant in this Second Appeal. The plaintiff and the defendant are each entitled to a half share in a well situate in the plaintiff's land. The defendant has installed a pumpset and by using the same is irrigating his lands. The plaintiff filed a suit for declaration that the defendant is not -entitled to fix the pumpset on the ground that it is a common Well belonging to the plaintiff and the defendant. Consequent upon the declaration, the plaintiff also prayed for an injunction restraining the defendant from fixing the pumpset. The Courts below, following the judgment of this Court in S.A. No. 73 of 1956 negatived the claim of the plaintiff and held that a co -owner of a well is entitled to enjoy his right to take water from the well for irrigating his land by installing a pumpset. It cannot be said that the co -owner's act in the installation of a pumpset and using the same for taking and drawing water and irrigating the lands is an unreasonable user or enjoyment of his right. Each co -owner is entitled to enjoy the common property in the best and most advantageous manner so long as there is no invasion or infringement of the rights of the other co -owner or co -owners. It is not open to the plaintiff, to dictate to the defendant as to how best the defendant is to enjoy his right to take water from the well, of which he is a co -owner, having half -share therein. If, however, by the defendant enjoying his right to take water from the well, there is a substantial deprivation or infringement of the rights of the plaintiff, in the sense that the plaintiff is effectively prevented from enjoying his right to take water from the well, the plaintiff may have a cause of action. That cause of action is not because the defendant has installed a pumpset but because the defendant as a co -owner in his enjoyment of his rights in the property, prevents the plaintiffs from enjoying the latter's I interests in the property. If the plaintiff is deprived of the mamool supply of water from the well or his right to take the mamool supply from the well is seriously affected as a result of the defendant installing the pumpset, it is for the plaintiff to file a suit making the necessary averments and establish to what extent and in what manner, the conduct of the defendant in installing a pumpset, had infringed or affected the rights of the plaintiff. Without such a case being specifically put forward and without the materials being made available to the Court it is not possible to afford any relief to the plaintiff in this suit/which is merely a suit for a bare declaration in the abstract that the defendant, as a co -owner, has no right to install a motor pumpset.

(2.) Learned Counsel for the plaintiff -appellant urged that applying the principle of the decision of our High Court in Lingappa Goundan v/s. Ramaswami Goundan : AIR1945Mad244 , where it Was held that where a plurality of persons are entitled to rights of irrigation by the use of baling apparatus, some safeguards may be provided by the Court by fixing turns as regards to the time at and the days on which the parties concerned may draw water. In the instant case, there is no proof that the rights of the plaintiffs have in any way been affected. In fact a perusal of the judgment of the Courts below indicates that the plaintiff has not sustained any damage or any injury. Further, I am of opinion that without adequate data about the extent of the lands irrigated, the dimensions of the Well, the nature of the springs and the quantity of the water available during rainy season and the rest of the year, it is not possible to impose any restriction or give any indications as to how the plaintiff and the defendant should enjoy their right to take water from the well. It may be that even if the defendant uses the pumpset all throughout the week, there may still be enough water left for the plaintiff to irrigate his lands, or it may be that the lands which the plaintiff irrigates may be far less in extent than the lands which the defendant is irrigating with the use of the water from the Well. The position may be vice versa. As observed earlier it depends upon very many factors about which there is no pleading no evidence.

(3.) The reservation made in the judgment of the trial Court that the plaintiff will be at liberty to make an application in this suit itself for providing for safeguard meaning thereby fixing terms etc., cannot be sustained. So far as this suit is concerned, it has to be dismissed on the simple ground that it is misconceived, having regarding to the unqualified relief which the plaintiff asked for in the suit. It will be open to the plaintiff to file a separate suit in case his right to take water from the well for irrigating his land is substantially interfered with in the sense that the working of the pumpset by the defendant results in substantial diminution in the supply of water to the plaintiff for irrigating his land.