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2002 DIGILAW 684 (MAD)

Murugesa Gounder v. Poongavanam & Others

2002-07-26

K.GNANAPRAKASAM

body2002
Judgment :- Defendant is the appellant. 2.The only question involved in this Second Appeal is whether a co-owner in a well can take water from the common well to the newly acquired lands? 3.Our Courts have uniformly held that co-owners in a well cannot take water to the newly acquired lands. In the present case, the defendant, who is the appellant before this Court wants to take water from the common well to the newly acquired lands in 'C' Schedule. The first plaintiff and the defendant were brothers and sons of one Narayanasamy Gounder and they were the members of the undivided Hindu Joint Family. The said Joint Family had owned and possessed several items of lands including the well and they orally divided their ancestral joint family properties in or about 1953. The plaintiff was allotted certain items of land and half share in the well and the defendant was also allotted certain items of land and half share in the well and the said well is shown in the Schedule 'A' to the plaint. The properties allotted to the plaintiffs and the defendant are shown in the schedule 'B' to the plaint. The defendant had acquired certain items of lands shown in schedule 'C' to which he wants to take water from the common well in the schedule 'A' and the same was prevented by the plaintiffs as the same is not permissible. In the case of SIVARAMA PILLAI AND OTHERS (Appellants) VS MARICHAMI PILLAI (Respondent) reported in 1970 M.L.J Page 376 learned Judge of this Court has held that " The uniform trend of the decisions of this Court is to all one way, i.e., not to permit the co-owner to irrigate any land newly acquired by him." The said principle is squarely applicable to the case on hand. But, however, learned advocate appearing for the appellant relied upon the judgment reported in VOLUME 9 L.W. PAGE 5 = A.I.R..1984 (II) SUPREME COURT ( 1789) AYYASWAMI GOUNDER AND OTHERS (Appellants) VS MUNNUSWAMY GOUNDER AND OTHERS (Respondents). But, however, learned advocate appearing for the appellant relied upon the judgment reported in VOLUME 9 L.W. PAGE 5 = A.I.R..1984 (II) SUPREME COURT ( 1789) AYYASWAMI GOUNDER AND OTHERS (Appellants) VS MUNNUSWAMY GOUNDER AND OTHERS (Respondents). That is a case where one of the parties wanted to make use of the common channel for taking water from the exclusive well during their turn of enjoyment of the common well and it was observed that : " In the instant case, the defendants make use of the common channel for taking water from their exclusive well in S.No.24 only during their turn of enjoyment of the common well. Such use of the common channel, by no stretch of reason can be said to interfere with the right of the plaintiff in any way. Nor can it be said that the said user of the channel by the defendants would in any way damage or weaken the channel. Unless the plaintiff proves that such use by the defendants in any way interferes with his rights or that the common channel is being or is likely to be damaged or injured or weakened he cannot prevent the defendants from making use of the channel during their turn of enjoyment of the common well by taking water from their exclusive well also, which is most advantageous and beneficial from their point of view" 4.It is, therefore, evident that the defendant, who is the appellant is trying to take water from the common well to the newly acquired lands and the same is not permissible. Therefore, Courts below have correctly decreed the suit and I do not find any valid ground to interfere with the findings reached by the Courts below and I also do not find any substantial question of law that arise for consideration of this Court. 5.The question is answered in the negative, i.e. Co-owner cannot take water from the common well to the newly acquired land. 6.In the result, the Second Appeal is dismissed. No costs. Consequently,C.M.P.No.4445 of 2000 is also dismissed.