THANHABAI JAIVANTA ILAG Vs. DHODIRAM PANDURANG ILAG

JUDGEMENT

(1.) THIS is plaintiff's second appeal directed against the appellate decree passed by the learned district, Judge, Ahmednagar in proceedings arising out of Civil Suit No. 134 of 1962, The appellant had filed a suit for declaration and injunction in respect of her right to take water of the well situate in Survey No. 246/3. According to the appellant she had 3/4 share in the well standing in survey No. 246/3. She had installed an engine at the well for irrigating the lands in her possession. While she was exercising her right to take water to the extent of her share on 28th November 1962 the defendants offered obstruction. Hence she filed the suit for declaration of her share and for permanent injunction to ensure peaceful enjoyment of her right to take water from the well. the appellant owns lands survey Nos. 246/1. " 244/- and 245/1b. According to the appellant she could irrigate all or any of these lands which were of her ownership.

(2.) THE suit was resisted by the defendants, who are co-sharers having a share in the well. Defendant No. 1 by his written statement at Exhibit 14 resisted the plaintiff's suit on certain grounds. According to the defendant the suit well was in survey No. 246/3 and not in survey No. 246/2 But this contention is without significance as the plaintiff had subsequently amended the plaint by effecting an appropriate correction. According to the defendant the plaintiff had got only 2/3rd share in the well. Survey No. 246/2 exclusively belongs to defendant No. 1. The use of the water is restricted to survey No. 246/1. therefore the plaintiff cannot take the well water to the other two suit lands. There are some other minor contentions raised by the defendants but for the disposal of this second appeal they are not relevant. the other defendants who are also co-sharers along with defendant No. 1 by passing a purshis Exhibit 16, adopted the written statement filed by defendant No. 1.

(3.) THE learned Civil Judge framed the relevant issues consistent with the pleading of the parties. The parties led no oral evidence and they passed a joint purshis to that effect at Exhibit 23, In other words both the plaintiff and defendants have relied only on the documents on record. The learned trial Judge came to the conclusion that the plaintiff had 3/4 share in the well standing in survey No. 246/3. she was entitled to take water of the well to her and 245/1b. Accordingly the learned Judge decreed the plaintiff's suit for declaration and permanent injunction to the extent of 3/4 share in the well.