MAHADEO Vs. UMARAJ DEAD

JUDGEMENT

(1.) ONE Jagat Pal Singh filed a suit against Mahadeo, Devi Dayal Tewari, Gaya Prasad Tewari, Vijai Shankar Tewari, Rameshwar Tewari, Shrimati Rajrani, Chandra Bhukhan Singh, Gajraj Singh and Sukhdeo Singh for a permanent injunction restraining them from obstructing the irrigation of plot No. 195/1 and a few other plots from a well situate on plot No. 193/1 in village Naraulha, Pargana, Tahsil and District Rae Bareli. A sum of Rs. 50/- was claimed on account of damages for the loss of crop. It is an admitted position that Jagat Pal Singh, Mahadeo and others defendants are co-Bhumidhars of plot 193/1. The plaintiff has come to Court with the allegations that his Chak after the Consolidation operations now includes plots 174, 193/3, 193/2, 194/1, 195/1, 196/1, 197/1 and 198/1 and the total area is 4 Bighas, 12 Biswas and 12 Dhurs. Before Consolidation operations, plot 195/1 was in the tenancy of Sheo Shankar Singh, the brother of Jagat Pal Singh and this plot had always been irrigated from the well in question for more than 25 years. It is further contended by the plaintiff Jagat Pal Singh that as joint owner, he is entitled to irrigate his fields from the well on plot 198/1 and in any case, he has perfected easementary right to irrigate his other plots by prescription. The case of the plaintiff is that Mahadeo and Devi Dayal Tewari forcibly prohibited the plaintiff from irrigating the fields and as a consequence of that, he suffered loss in respect of which he is entitled to damages. The plaintiff further contends that Gaya Prasad Tewari, Vijai Shankar Tewari, Rameshwar Tewari and Smt. Rajrani, defendants 3 to 6 had joined hands with Mahadeo Prasad, Devi Dayal Tewari and Chandra Bhukhan Singh, defendant No. 7, Gajraj Singh defendant No. 8 and Sukhdeo Singh defendant No. 9 were impleaded as pro forma defendants as they are also cosharers in the well in dispute.

(2.) CHANDRA Bhukhan Singh, Gajraj Singh and Sukhdeo Singh, defendants 7 to 9, filed a joint written statement and supported the claim of Jagat Pal Singh plaintiff Mahadeo and Devi Dayal Tewari, defendants 1 and 2 have contested the suit. They contested the suit on the ground that the well in question was sunk by Merai, an ancestor of the contesting defendants and the plaintiff has no right in the well and by inheritance the defendants are the owners of the well. They maintained that no other plots had been irrigated from the well. The defendants further contended that the plaintiff Jagat Pal Singh is not entitled to any damages as he could irrigate his fields by canal.

(3.) MR. Shukla, in support of his contention that out of the well which is jointly owned by both the parties only joint fields could be irrigated, relied upon a decision given by the Madras High Court reported in Sivarama Pillai v. Marichami Pillai (AIR 1971 Mad 230). He submitted that tile said decision clearly established that the right to take water from the well could not be dissociated from the land and it was necessarily implicit in the very idea of co-sharership that the water in the well was intended to be used only for lands which were irrigated by the common well and that none of the parties would be entitled to take water from the well to irrigate any other land. A close reading of the decision referred to above would indicate that the line of reasoning adopted by Shri B. L. Shukla is correct. As stated earlier, the position is undisputed that in grove 193/1 the parties to the suit are co-sharers and they are also co- sharers in the well. The well is the common property and is for the beneficial and profitable enjoyment of the land on which it is situate. It does not matter what label the parties give to their rights in the well but what is crucial is that in ease of land, the valuable right is the source of irrigation. The well is inseparably connected with the ownership of the land and the rights in the well cannot be dissociated from the land, the fight of the particular party to irrigate the land. The learned Judge deciding the aforementioned case, namely, Sivarama Pillai V. Marichami Pillai (supra) had, after considering various decisions of the Madras High Court, come to the conclusion that the uniform trend of decisions of that Court was not to permit the co-owner to irrigate any land other than the one of which he is the co- sharer. The learned counsel for the respondents was unable to cite any other decision on the point. After perusing the decision reported in Sivarama Pillai V. Marichami Pillai (supra), I feel inclined to agree with the line of reasoning adopted by the learned Judge in that case. The principle on the basis of which he has held that the right of the co-owner of the well is confined to irrigation of the land of which he is a cosharer, is based upon very sound reasoning and is in accord with common sense. A position can be envisaged when a co-sharer in order to irrigate his fields other than those of which he is a co-sharer may utilize the major part of the water of the well for irrigating his own fields leaving the other co-sharers with insufficient water to irrigate the fields of which the parties are co-owners. The principle enunciated in the aforesaid decision of the Madras High Court fully accords with considerations of justice, equity and good conscience. After having heard the learned counsel for the parties, I am of the view that the parties to the suit are not entitled to irrigate any plot from the well in dispute other than the land of which they are co-sharers and in this view of the matter the plaintiff cannot irrigate plot 195/1 from the well situate on plot 193/1. 6. MR. Shukla has further contended that there could be no acquisition of prescriptive right of easement in regard to a property which is jointly owned by the parties. He contended that the well in question was jointly owned by the co-sharers and that all the co-sharers had the right to use the water of the well for irrigating the fields jointly owned by them. He contended that if the parties are co-sharers in the right to irrigate, each party would be in possession of that right and the exclusive me of the right of irrigation by one of the parties would not amount to an ouster of the right to irrigate vested in the other party. In order to acquire right by prescription it has to be established that the person concerned exercised the right to the exclusion of others. If the right to irrigate from the well is a right in which the parties to the suit are co-sharers, the mere exclusive use by one of the cosharers will not amount to an ouster of the other. Once it is established that the parties are co-sharers in respect of the right to irrigate then unless any party establishes ouster of the other co-sharers, a prescriptive right of easement cannot be acquired. In the instant case no evidence is forth-coming on behalf of the defendants that they were exercising the right of irrigation in respect of the land of which they were not the co-sharers by ousting the other co-sharers. In the absence of a plea of ouster, the plaintiff cannot be permitted to urge that he acquired the right to irrigate other fields by prescription. The learned counsel for the respondents placed reliance on S. 19 of the Easements Act and contended that since in proceedings under the U. P. Consolidation of Holdings Act, plot 195/1 had come to the plaintiff, as is clear from Ext. 14 which is Form 28 prepared in consolidation proceedings, he could establish easementary right regarding irrigation of the said plot by showing that his predecessors were irrigating the fields for mare than 20 years. In my view, this argument of the learned counsel for the respondents is incorrect. As stated earlier, the parties to the suit were co-sharers in the right of irrigation and if no ouster was established, the plaintiff could not acquire easementary right by prescription. Having regard to the view that I have taken, it is obvious that the plaintiff could not have a right to irrigate fields other than those of which the parties are co-sharers. In this view of the matter, the plaintiff has no right to irrigate plot 195/1 or any other plot which he claimed in the suit on the basis of having acquired a prescriptive right of easement of irrigation. 7. As a result of the findings recorded by me above, I allow Second Appeal 259 of 1967 and dismiss Second Appeal 261 of 1967. In consequence of the findings recorded above, the suit filed by the plaintiff stands dismissed in toto. In the circumstances of the case, I direct that the costs of both the appeals shall be borne by the parties. Order accordingly