Judgment :- 1. The defendants in the suit O.S. No. 257 of 1976 on the file of the Court of the District Munsif, Tiruvannamalai, (the plaintiffs in O.S. No. 309 of 1976 and the respondents in S.A. No. 274 of 1981) are the appellants in S.A. No. 2258 of 1978. Similarly the plaintiff in the suit O.S. No. 257 of 1976 on the file of the Court of the District Munsif, Tiruvannamalai (the defendants in O.S. No. 309 of 1976 and the respondent in S.A. No. 2258) is the appellant in S.A. No. 274 of 1981. 2. Since the subject matter of both the appeals is the same and the parties are also common, both the appeals are taken up for consideration together. For the sake of convenience the parties are referred to as per their ranks in O.S. No. 257 of 1976. 3. The facts of the case are briefly as follows:— The plaintiff filed a suit O.S. No. 257 of 1976 against the defendants for the relief of permanent injunction restraining them from taking water from the well situate in plaint A Schedule to the lands comprised in plaint B Schedule. The case of the plaintiff is that the well in question belongs to him and the defendants. The plaintiff has got 1/3rd share in the well; the defendants are jointly entitled to 1/3rd share in the well and one Narayanaswamy Gounder vagaira is entitled to another 1/3rd share in the well. The plaintiffs 1/3rd share in the well is mentioned in the registered mortgage deed, dated 1st May, 1958. The defendants are brothers and the properties comprised in plaint B Schedule belong to them. The well in plaint A Schedule is intended to irrigate the survey number 73 of an extent of 7.42 cents. Survey No. 73 was sub-divided into S. Nos. 73/1 to 73/8. In the said sub-divisions, the well is situate in S. No. 73/2. The said well was dug up by the forefathers of the plaintiff and the defendants. Neither the defendants nor anybody has any right to take water from the well in plaint A Schedule to other survey numbers mentioned in plaint B Schedule. Some of the properties mentioned in plaint B Schedule are ancestral properties of the defendants. The properties covered by B Schedule are not within the ayacut of the well mentioned in plaint A Schedule. Some of the properties mentioned in plaint B Schedule are ancestral properties of the defendants. The properties covered by B Schedule are not within the ayacut of the well mentioned in plaint A Schedule. The defendants have no right to take water from the well in plaint A Schedule to the lands in plaint B Schedule. The well was originally dug in S. No. 73/2 but later on the well was expanded and due to expansion of the well, the well covers some extent in S. No. 74/2. Item 8 of the plaint B Schedule property was purchased by the defendants father under two sale deeds dated 6th May, 1964 and 2nd July, 1964. 6th item of B Schedule was given to the defendants father by an exchange deed dated 10th March, 1958. 1st item of B Schedule was purchased by the defendants father under two sale deeds dated 6th May, 1964 and 30th April, 1958. Items 2 to 5 of B Schedule properties were purchased by the defendants father under a sale deed dated 30th April, 1958. Items 7, 9, 10 and 11 fell to the share of the defendants father Ramaswamy Gounder in the partition. The said lands are not within the ayacut of the well situate in plaint A Schedule. The defendants tried to lay a pipeline in January, 1976 to take water to B Schedule properties. But that was prevented by the plaintiff. The defendants have no right to take water to plaint B Schedule properties from the well in plaint A Schedule. If the defendants are allowed to take water to B Schedule lands, the water in the well will be diminished and the plaintiff may not be in a position to irrigate his lands. Hence the plaintiff prayed for a permanent injunction restraining the defendants taking water from the well in plaint A Schedule to plaint B Schedule properties. 4. The case of the defendants is that the plaintiff has less than 1/7th share in the suit well The suit well is situate in S. Nos. 73/2 and 74/2. The allegation in the plaint that the well is in S. No. 73/2 alone is not correct. The well belongs to the forefathers of the plaintiff and the defendants and the same was dug by them long ago. The suit well is a fairly old one. 73/2 and 74/2. The allegation in the plaint that the well is in S. No. 73/2 alone is not correct. The well belongs to the forefathers of the plaintiff and the defendants and the same was dug by them long ago. The suit well is a fairly old one. In the suit well the defendants father Ramaswami is entitled to 5/7th share, the plaintiff and Narayanaswamy Gounder are jointly entitled to 2/7th share and one Ayammal and her sister are entitled to 1/7th share. The allegation in the plaint that the plaintiff has got 1/3rd share in the suit well is not correct. The plaintiff has got only 1/4th Share in the suit well. The defendants ancestor Narayana Gounder acquired S. Nos. 74/2, 71/1, 65/1, 75/5, 74/1, 74/3, 75/2, 1212, 7412, 74/6, and 119/B. The aforesaid Narayanaswamy Gounder had been taking water from the well in S. Nos. 73/2 and 74/2 to the aforesaid survey number through Kuttitholai. As a matter of fact the plaintiff has 1.09 cents in S. No. 74/4 and 91 cents in S. No. 73/1A and for the said lands also he is taking water from the suit well. The allegation In the plaint that the well in question is entitled to irrigate only S. No. 73 is not correct. The allegation in the plaint that there are other wells to irrigate the aforesaid survey numbers is absolutely incorrect. The defendants had been taking water through the cement pipe and through the channels from the well in question to the aforesaid survey numbers. The defendants are not irrigating survey Nos. 117/1B and 65/7B from the suit well. The plaintiff is taking water to survey numbers other than 73 from the suit well and as such he has no right to prevent the defendants from taking water to the aforesaid survey numbers since they are co-owners in the well. The plaintiff never objected to the defendants taking water from the well in question to other survey numbers even though wells were in existence in S. Nos. 72/3B, 72/5, 75/2A and 74/7. There is no water in the said wells and therefore the defendants are taking water from the suit well to the aforesaid survey numbers. The defendants had laid the pipe about 20 years ago and since then they have been taking water through the pipeline to their lands. 72/3B, 72/5, 75/2A and 74/7. There is no water in the said wells and therefore the defendants are taking water from the suit well to the aforesaid survey numbers. The defendants had laid the pipe about 20 years ago and since then they have been taking water through the pipeline to their lands. The defendants, therefore prayed for the dismissal of the suit O.S. No. 257 of 1976. 5. On the very same pleas set out in the written statement filed in O.S. 257 of 1976 the defendants, as plaintiffs in O.S. No. 309 of 1976, prayed for a declaration of their right to take water from the well situate in S. Nos. 73/2 and 74/2 to irrigate the survey numbers 71/1, 71/5, 72/2, 72/3, 73/2, 74/2, 74/1, 74/3, 74/5, and 75/2 and for a permanent injunction restraining the plaintiff in O.S. No. 257 of 1976 from interfering with the defendants right to take water from the well situate in S. Nos. 73/2 and 74/2 to the above said lands. 6. The trial Court after examining the oral and documentary evidence dismissed the suit filed by the defendants on the following grounds:— 1. The suit well is situate not only in S. No. 73/2 but also in S. No. 74/2 and as such the suit well is liable to irrigate the defendants lands; 2. The evidence in the case indicate that the water from the suit well had been taken to the lands subsequently purchased by the defendants and their predecessor-in-title; 3. There is clinching documentary evidence, viz., Exs. B1, A4, B6 and B7, to show that water had been taken from the suit well to the defendants other lands; 4. The Commissioners report and plan, viz., Exs C1 and C2, respectively, show that cement pipe has been laid in the suit B Schedule lands, that the same would have been laid at least 15 years ago and the same probabilise the fact that the defendants had been taking water to their lands. As against the judgment and decree of the trial Court the plaintiff filed two appeals, viz., A.S. No. 133 of 1977 (against O.S. No. 257 of 1976) and A.S. No. 134 of 1977 (against O.S. No. 309 of 1976), on the file of the court of the Subordinate Judge of Tiruvannamalai. As against the judgment and decree of the trial Court the plaintiff filed two appeals, viz., A.S. No. 133 of 1977 (against O.S. No. 257 of 1976) and A.S. No. 134 of 1977 (against O.S. No. 309 of 1976), on the file of the court of the Subordinate Judge of Tiruvannamalai. The first appellate court on reappraisal of evidence in the case partly allowed A.S. No. 134 of 1977 setting aside the judgment and decree in O.S. No. 257 of 1976 and passing a decree in favour of the plaintiff granting permanent injunction in respect of plaint B Schedule items 2 to 5, 8, 9 and 11 and rejecting the prayer for injunction in respect of plaint B Schedule items 1, 6, 7 and 10. The first appellate court has also partly allowed A.S. No. 133 of 1977, setting aside the judgment and decree in O.S. 309 of 1976 and granted a permanent injunction in respect of items 5 (S. No. 74/2, 7 (S. No. 74/1), 8 (S. No. 74/3), 9 (S. No. 74/5) and 10 (S. No. 74/6) alone and dismissing the claim regarding items 2 to 4 and 6. Aggrieved by the judgment and decree of the first appellate court the above two second appeals have been filed. 7. On behalf of the plaintiff, the appellant in S.A. No. 274 of 1981, it is contended that the judgment of the first appellate court finding that the well in S. No. 73 is liable to irrigate items 1, 6, 7 and 10 of plaint B Schedule apart from S. No. 73 is not sustainable for the following reasons:— 1. The right to take water from the well in S. No 73 cannot be dissociated from S. No. 73 and that the well and the land comprised in S. No. 73 are inseparably connected and that it is necessarily implicit in the nature of the enjoyment that the well was set apart and intended to be used for the land comprised in S. No. 73. 2. The fact that a portion of the well is situate in S. No. 74/2 ought not to have influenced the decision of the first appellate court since the well in S. No. 73 was extended and at the time of resurvey the extension was found to lie in S. No. 74, the portion in which such extension lies was subdivided as S. No. 74/2. The first appellate court erred in holding that the well in S. No. 73 is liable to irrigate the subdivisions in S. No. 74 comprised in items 1, 6, 7 and 10 of the plaint Schedule B. 3. The first appellate court ought to have found that the well in S. No. 73 is bound to irrigate only the extent covered in S.No 73 and the conclusion arrived at by the first appellate court that the said well is liable to irrigate items 1, 6, 7 and 10 of plaint B Schedule is incorrect. 8. On the other hand, on behalf of the defendants, the appellants in S.A. No. 2258 of 1978, the following contentions were raised in support of the argument that the conclusion arrived at by the first appellate court is not sustainable:— 1. The first appellate court ought not to have interfered with the judgment of the trial court based on sound reasoning and the reasons for modifying the judgment and decree of the trial court are not correct; 2. 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 of his lands, 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 Jake water from the well, whether their rights are defined in terms of shares or in terms of turns; 3. Unless a co-owner alleges and proves that as a result of the other co-owners taking water to irrigate other lands, there has been a substantial diminition in the supply of water to which he would be entitled in his turn, he will not be entitled to prevent the other co-owners from taking water to other fields. 9. The following intricate questions arise for consideration in these second appeals:— 1. In the case of co-owners in respect of a well whether the well and the land irrigated by it are inseparably connected to the extent that a co-owner in the well, (sic) has got rights only to the extent for which the well was originally intended? 2. 9. The following intricate questions arise for consideration in these second appeals:— 1. In the case of co-owners in respect of a well whether the well and the land irrigated by it are inseparably connected to the extent that a co-owner in the well, (sic) has got rights only to the extent for which the well was originally intended? 2. Whether a co-owner is entitled to exercise his right to a particular share in the well by irrigating any extent of land owned by him provided he does not contravene the extent of his right in the well? 10. The earliest decision on this question is that of a Bench of this Court reported in Venkatarama Sastri v. Venkatanarasayya 1. In that case several co-sharers of an agraharam were entitled to the water of a tank in the same proportion in which they owned land in the agraharam. It was customary from time immemorial to use the water of the tank for cultivating certain area of land described as “the wet ayacut under the tank”. The water of the tank was not even sufficient for the wet ayacut. One of the co-sharers used the water of the tank to convert some of his dry land into wet land and thereby caused damage to the other co-sh arers. The other co-sharers sued for injunction as well as damagse. The Bench of this Court held that from immemorial usage must be implied in an agreement that the water of the tank was to be used for the wet ayacut only. From the fact that the water was owned proportionately to the land it does not follow that the ownership of water was independent of the ownership of the land. The use of water for the land other than the wet ayacut was held to be illegal. Other co-owners were therefore held to be entitled to damages as well as injunction to restrain such use. 11. The decision rendered by Satyanarayana Rao, J., reported in Nanjappa Gounder v. Ramaswami Gounder 1 , relates to a case where under a partition arrangement between two co-sharers it was agreed that the water from a well should be enjoyed in equal shares by the parties for irrigating the land commanded by the well, one party drawing water from the Southern side of the well and the other from the northern side. The claim of one of the co-owners to take water from the well to irrigate some other lands newly purchased by him was negatived and it was held that the rights in the well cannot be dissociated from the lands to which the well was attached and the co-owner was not entitled to divert the water for irrigating other lands. Satyanarayanan Rao, J., affirmed the principle laid down in the earlier Bench decision of this Court reported in Venkatarama Sastri v. Venkatanarasayya 2 . 12. The said principle had been affirmed by Chandrasekhara Aiyar, J., in two unreported decisions in S.A. Nos. 1640 of 1943 and d67 of 1945 on the file of this Court. Following the above line of reasoning Ramamurthi, J., in the case reported in Sivarama Pillai v. Marichami Pillai 3, held as follows:— “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 patties being entitled to the 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.” Anantanarayanan, J., applied the principle of restricted user where such user existed from the very inception, in the decision reported in Ramachandra v. Venkatachala 4 , in which he held as follows:— “The principle of restriction of the user to particular property alone, can only be applied where the history of the property owned in common shows that the user was so determined from the very inception. Where this principle is inapplicable on facts, the principle applicable is that, as between co-owners, each is entitled to use the facility of the common property without detriment to the enjoyment of the other, and so long as the property itself suffers no injury, weakening or loss. Where the plaintiff and the defendant have each equal right or share in an irrigation well, which according to its prior history was irrigating a number of fields not precisely ascertained, the principle of restriction of the user to particular properties alone cannot apply. All that can be stated is that the defendant could take water from the well only consistent with the equal right of the plaintiff, so that the defendant could not, in any event, take water to irrigate a total extent (whether it incl udes or not any new land which was not being formerly irrigated from the well), which does not exceed the share irrigated by the plaintiff. Of course, by consent of both parties, they may agree to irrigate each a larger extent. There is also another implicit condition that the user should not weaken or cause injury to, the well as a source of irrigation, but each party will have a right to injunct the other, only upon proof of such weakening or injury in appropriate proceedings.” 14. On a consideration of the principles laid down in the above decisions the following propositions appear to be evident:— 1. In between the co-owners of a piece of land irrigated by a well is implicit that the well is kept in common only for the 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 at purposes like bathing, washing clothes, taking water for cattle, etc; 2. The scheme of arrangement cannot admit of any notion by which the parties will be deemed to be entitled to the particular quantify of water (so many gallons) treating that alone as a distinet item of property, divorced from the lands, which they can take to any land owned by them apart from the land for which the well is intended; 3. The ownership of water in the well is not independent to the ownership of the land. The ownership of water in the well is not independent to the ownership of the land. Hence the use of the water for lands other than that for which the well is indended is not permissible. 15. A contrary view had been expressed by a single Judge of the Bombay High Court in the case reported in Tanhabai v. Dhondiram 1 where it has been held that there cannot be a hard and fast rule which would regulate the rights of co-sharers in respect of a common well. A restriction, consistent with the rights of the co-sharers, against each other, is necessary. Therefore, a person who acquires a share in a portion of the land and a share in the well can irrigate the portion of land so acquired or any other land owned by him to the extent of the land acquired. The Bombay High Courts view that new lands upto the extent of land commanded by the well can be irrigated instead of the area commanded by the well in a way recognises the principles laid down by this Court that the ownership of the water in the well is not independent of the ownership of the land. But the alternate land sought to be irrigated may be of different quality likely to consume more water which may affect the rights of the other co-owners. Hence applying the principle laid down by the Bombay High Court may injuriously affect the rights of the other co-owners in a well. 16. In the case reported in Subbiah Goundan v. Ramaswami Goundan 2, Palaniswamy, J. held that when co-owners, at the time of partition, set apart a portion of the common property to be used as common for the beneficial enjoyment of their respective shares, that involves a dedication by each of them of a portion of the property, which, but for such dedication, would become his exclusive property. Each of such co-owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time, causing any injury or detriment to the other co-owners. It is for such a co-owner to decide in what way he could so use the common property to his maximum advantage. Each of such co-owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time, causing any injury or detriment to the other co-owners. It is for such a co-owner to decide in what way he could so use the common property to his maximum advantage. It is not for the other co-owners to dictate in what manner the other co-owner should enjoy the common property so long as the user of the common property by one co-owner does not materially interfere with the use of the property by the other co-owners or affect their rights or in anyway weaken, damage or injure the common property. Such co-owners are not entitled to prevent the other co-owner from using the common property in the way most beneficial to him. 17. The principle laid down by Palaniswamy, J. in the above case cannot be of any assistance to come to a conclusion in these second appeals since the subject matter of the abovesaid case relates to the use of a channel. The act of the user of the channel by taking water to any extent during his turn cannot damnify the other co-sharer unless any damage to the channel is involved. But in the case of a well excessive user during his turn is likely to deplete the water resources that may be available to the other co-sharer. Hence the principle laid down in the above case cannot be applied to the facts of the present case. 18. In the case reported in Girdharbhai v. Gordhanbhai 3, a single Judge of the Gujarat High Court held that so long as partition does not take place, every co-owner of a joint property is entitled to use any and every part thereof consistently with the right of user of the other co-owners and such use by a co-owner should be reasonable in the sense that it should not amount to ouster of the other co-owners. Subject to that limitation the reasonable user by a co-owner of a co-ownership property consistent with the right of other co-owners, is perfectly justified. In fact such a user would be a necessary concomitant of the co-ownership right. Subject to that limitation the reasonable user by a co-owner of a co-ownership property consistent with the right of other co-owners, is perfectly justified. In fact such a user would be a necessary concomitant of the co-ownership right. This case also relates to the user of a pathway and as such the same cannot be applied to the facts of this case on the same line of reasoning which the decision of Palaniswamy, J., in Subbiah Goundan v. Ramaswamy Goundan 2 is inapplicable to the facts of this case. 19. By applying the principles laid down in the above-said decisions relating to the rights of co-owners in a well to the instant case we will have to see whether the conclusion arrived at by the first appellate court is correct. The evidence in the case shows that the suit well is situate in S. No. 73/2 and the same was subsequently extended so as to cover a small extent in S. No. 74, which was subsequently sub-divided as S. No. 74/2. The plaintiff as well as the defendants are entitled to their respective share of taking water in the well situate in S. No. 73/2 from the very inception. The properties subsequently purchased by the defendants and their predecessor-in-title by means of Exs. A7 to Ex. A10, prior to the purchase, were not commended by the well in S. No. 73/2. Further the properties purchased under Exs. A7 to A10 had been irrigated from the wells situate in the said properties. Under the circumstances the conclusion arrived at by the first appellate court that the defendants are not entitled to take water to items 2 to 5, 8, 9 and 11 of plaint B Schedule is in accordance with the principles recognised by the abovesaid decisions. The first appellate court is right in granting declaration that the defendants are not entitled to take water from the well situate in S. No. 73/2 to the properties comprised in item Nos. 2, to 5, 8, 9 and 11 of B Schedule to the plaint and consequential injunction restraining the defendants from taking water to the abovesaid lands. 20. In so far as item Nos. 2, to 5, 8, 9 and 11 of B Schedule to the plaint and consequential injunction restraining the defendants from taking water to the abovesaid lands. 20. In so far as item Nos. 1, 6, 7 and 10 B Schedule, which form part of S. No. 74, are concerned the contention is that the defendants are entitled to the water to those lands since a portion of the well lies in the said survey number. It is the case of the plaintiff that originally the well was situate in S. No. 73/2, but subsequently it was extended and in the process of such extension a portion of S. No. 74 was also used up and as such the extent of the well lies in both S. Nos. 73/2 and 74/2. It is the specific case of the plaintiff that water from the suit well was not taken to the land in S. No. 74. On the other hand the defendants contended that S. No. 74 was also irrigated by the suit well. From the evidence it is seen that S. No. 74 was not originally commanded by the well in S. No. 73. Subsequently the fact that the water from the said well irrigated portions of S. No. 74 is also evidenced from the cultivation accounts produced by the defendants, viz., Exs. B6 and B7. 21. In order to ascertain whether S. No. 74 is entitled to irrigation from the suit well the following facts will have to be ascertained:— 1. Whether S. No. 74 was commanded by the suit well from the very inception; 2. Whether there is long user of the water from the suit well to irrigate S. No. 74 so as to infer a right by prescription. The first appellate court had not considered the rights of the parties with regard to the use of the water from the suit well to S. No. 74 in the abovesaid aspects. But it merely came to the conclusion that S. No. 74 is entitled to be irrigated by the suit well since a portion of the suit well is situate in S. No. 74 also. Merely because a portion of the well is situate in S No. 74 it will not give the rights to the owners of S. No. 74 to irrigate water from the suit well. Merely because a portion of the well is situate in S No. 74 it will not give the rights to the owners of S. No. 74 to irrigate water from the suit well. The owners of S. No. 74 will be entitled to irrigate the said survey number from the suit will only if any one of the two conditions set out above are fulfilled. The first appellate court had not considered the evidence in the above lines and arrived at a conclusion. 22. The conclusion arrived at by the first appellate court that the properties comprised in items 2, to 5, 8, 9 and 11 of B Schedule cannot be irrigated from the suit well and the consequent injunction granted is just and proper and the findings of the first appellate court in this regard will have to be confirmed. 23. In so far as the conclusion arrived at by the first appellate court that S. No. 74 is entitled to be irrigated from the suit well is concerned it does not appear to be based upon a proper appreciation of the evidence in this case. Hence on this question the matter will have to be remanded back to the first appellate court for a fresh disposal in the light of the observations made above. 24. In the result S.A. No. 2258 of 1978 and S.A. No. 274 of 1981 are allowed in part to the extent indicated above. There will be no order as to costs in both the second appeals.