SIVARAMA PILLAI AND ORS. Vs. MARICHAMI PILLAI

JUDGEMENT

(1.) THIS second appeal arises out of a dispute between owners of adjacent lands who also had joint rights in a well. The family of the plaintiff and defendants 1 and 2 (hereinafter referred to as the defendants) owned certain items of lands of a total extent of 4 acres and 17 cents which were irrigated by a well situate in the lands. Under a partition arrangement of the year 1952, the properties were divided equally and two items of lands of total extent of 2 acres 3 cents were allotted to the plaintiff and 2 acres and 14 cents were allotted to the defendants. It is common ground that as an integral part of this partition arrangement, both the branches would have equal rights to take water from the well and that that right should be worked out by the plaintiff taking water from the well for three days and the defendants in the next three days thereafter, (not even a case of one party taking for four days and the other party three days in the week). In the nature of things, a well cannot be divided by metes and bounds and persons who own joint rights in a well (to the right of the water in the well) can enjoy that right either jointly or separately only by resort to a workable arrangement safeguarding and securing the right to irrigate the lands allotted to the respective branches. The complaint of the plaintiff is that in 1960, the defendants newly purchased two items of lands on the west of a total extent of 99 cents and irrigated the same from the well in question and that this act of the defendants abstracting water from the well for irrigating the lands newly acquired had resulted in a substantial diminution of water and thus seriously interfered with the plaintiff's right to take water from the well during his turn. This was the plaintiff's complaint in the notice issued on his behalf which preceded the suit. In the reply notice sent on behalf of the defendants, they did not traverse the plaintiff's case of the injury or damage sustained by him; the defendants accepted the fact of their having taken water from the well to irrigate the lands newly acquired by them but rested their claim on a panchayat at which it was settled that the defendants would be entitled to take water for irrigating the lands newly acquired and that the plaintiff would also be similarly entitled to take water to irrigate certain lands on the west which he too acquired. In the course of the trial the defendants desired a local inspection of the property and the well in question as the inspection would reveal that water from the well was being used to irrigate the lands newly acquired by the plaintiff as well as the defendants, a circumstance which would corroborate the case of the panchayat put forward by the defendants. It is in connection with this and for other purposes, a Commissioner was appointed by the trial Court to inspect the property and the Commissioner submitted a report, Exhibit A -5 with a plan, Exhibit A -4. The trial Court upheld the contentions of the defendants and dismissed the plaintiff's suit. But on appeal, the lower appellate Court came to a contrary conclusion. It did not accept the case of the panchayat; it also held that the right to take water from the well was inseparably connected with the lands which formed the subject matter of the partition arrangement, that the lands cannot be dissociated from the well and that the defendants had no right to take water to irrigate the lands newly acquired by them. Hence the second appeal by the defendants.

(2.) LEARNED Counsel for the appellants, Mr. K. S. Desikan, raised two points : (1) A person who has got a joint right in a well along : with others (in other words a co -owner of a well) is entitled to use the water from the well to irrigate any land he likes, whether originally owned or newly acquired by him, so long as the co -owner conforms to the working arrangement already entered into between the several co -owners as to how and in what manner they should take water from the well, whether their rights are defined in terms of shares or in terms of turns. In other words, according to learned Counsel so long as the defendants in this case did not exceed the three days in their turn they can use the water not only for irrigating the lands of an extent of 2 acres 14 cents allotted to them but also the lands on the west newly acquired by them. The substance of the argument is that the right is to the quantity of water which the defendants can take from the well during their turn of three days and it does not matter in what manner the defendants use that water; and (2) unless the plaintiff alleges and proves that as a result of the defendants' taking water to irrigate other lands, there has been a substantial diminution in the supply of water to which the plaintiff would be entitled in his turn, the plaintiff will not be entitled to an injunction on the ground of infringement of some legal right in the abstract. In other words, the mere act of the defendant abstracting water to irrigate other lands would not by itself furnish a cause of action to the suit but there should be proof of the actual injury or damage sustained by the plaintiff. Learned Counsel stressed the point that in this case there is neither pleading nor evidence to that effect and that the Courts below have not even recorded any finding in favour of the plaintiff that he had been damnified in any manner.

(3.) LEARNED Counsel on both sides invited my attention to some of the relevant decisions (to which reference would be made presently) which have laid down the principles governing the rights inter se of persons who own joint rights in a well. Mr. T. P. Gopalakrishnan, learned Counsel for the respondent stressed the point that it is settled law that in a situation like the instant case, well (the right to take water from the well) cannot be dissociated from the land, that the well and the land are inseparably connected and that it is necessarily implicit in the very partition arrangement that the well (that is the water in the well) was set apart and was intended to be used and used only for the lands which were previously irrigated by this common well prior to the partition and that none of the parties would be entitled to take water from the well to irrigate any other land. The decisions to which he drew my attention completely support this contention and I am of the view, the matter is not open to any argument contra in view of the clear pronouncement in the Bench decision of this Court, Venkatarama Sastri v. Venkatanarasayya : AIR 1929 Mad 25 , which has been followed in the subsequent decisions. It is hardly necessary to mention that this Bench decision is binding upon me; with respect, I am also add that the principle enunciated therein is correct. Before I refer to the decisions, it is necessary to emphasise even at the threshold that prior to the division, the well in question was set apart and was used for irrigating the total extent of 4 acres and 17 cents. Naturally when the properties were divided into equal shares, the appurtenant inseparable right to water is provided and the well not being capable of division by metes and bounds was not divided but the right to take water from the well was settled by a workable arrangement each party taking water for three days in the week. It is crucial to bear in mind that the three days in the week fixed for the turn is not in the abstract, a mere division of the water contents, i.e., so many gallons of water but it is essentially a right to irrigate the lands allotted to the respective branches flowing from their right of ownership in the land. It is implicit in such arrangements that the common source of irrigation, the well, is kept in common for the only purpose of irrigating the lands which are allotted to the respective branches and to serve that purpose only, leaving out of account the other incidental purposes like bathing, washing clothes, taking water for cattle, etc. The scheme of the arrangement cannot admit of any notion of the parties being entitled to be particular quantity of water (so many gallons) treating that alone as a distinct item of property, divorced from the lands. The well is set apart as common property for the most beneficial and profitable enjoyment of the land and it does not matter what label the parties give to their rights in the well, whether it is a right to a particular share in the well or whether a right to take water by turns. But what is crucial is that in the case of lands, valuable right is the source of irrigation.