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2004 DIGILAW 703 (MAD)

Sellappa Gounder v. Nachimuthu Gounder

2004-04-26

M.CHOCKALINGAM

body2004
Judgment :- 1. This Second appeal has arisen from a common judgement of the learned Subordinate Judge, Namakkal, made in A.S. Nos. 39 and 44 of 1990. 2. The respondents herein filed a suit seeking declaration that the plaintiff was entitled to 1/6th share in a common Well shown as “W”; that the plaintiffs were entitled to take water to their lands shown as “P” through the channel shown as A3 and A4; that the defendants 1 to 4, 6 to 9 were not entitled to take water from the said common well only to the land situate in S. No. 340; that the defendants should not prevent the plaintiffs taking water from the common well to their lands; that the plaintiffs are entitled to take water to the lands in S. No. 29; that the plaintiffs were taking water through A, A1, A2, A3, A4 channel; that the said common well “W” is situate in S. No. 340/4 measuring 0.05 cents; that through the said channel A, A1, A2, A3 and A4 which are situate in the lands of defendants 1 to 4, 6 to 10, the plaintiffs are taking water from the common well to their lands; that the first plaintiff was taking water from the year 1956 when he got the property through settlement executed by his grand father; that while so, the defendants denied the rights of the plaintiffs taking water from the common well and they have obliterated the channel; apart from that, the defendants were attempting to take water to different lands to which they were not entitled to apart from the land in Survey Field No. 340 to which they were entitled to. Under such circumstances there arose a necessity for filing a suit. 3. Under such circumstances there arose a necessity for filing a suit. 3. The suit was resisted by the defendants stating that the land situate in Survey Field No. 340 originally belongs to a family; that a common well situate in S. No. 340/4 was used by all the family members to take water for all the fields situate not only in S. No. 340 but for the other fields also; that it is not correct that the first defendant executed a settlement deed in favour of the second plaintiff; that it is true that the first plaintiff was entitled for 1/6th share in the common well “W”, but it is not correct to state that the defendants have obliterated the said channel leading to the plaintiffs land; that the defendants have been taking water to all their lands apart from the survey field No. 340; that the plaintiffs are not contributing for the maintenance of the common well and the same was totally incurred by the defendants; that the right of the plaintiffs taking water from the well has been extinguished long back since they were neither using the channel nor were taking water from the well in question and thus, by non-user, the right of the plaintiffs have been extinguished long back and thus, the plaintiffs are not entitled for the relief asked for. 4. The trial court framed necessary issues, tried the suit and granted the relief in part while it disallowed the other part. Aggrieved defendants preferred an appeal in A.S. No. 38/90 in respect of the relief granted in favour of the plaintiffs, while the plaintiffs preferred A.S. No. 44/90 in respect of the disallowed part. Both the appeals were taken up for consideration by the learned Subordinate Judge jointly and a common judgment was rendered. After considering the rival submissions and scrutiny of the available materials, the learned Subordinate Judge dismissed A.S. No. 38/90 and allowed A.S. 44/90 by granting the mandatory injunction and had remitted back the matter to the trial Court for fixing the turn as to the exercise of right of the parties to take water. Aggrieved defendants have brought forth this Second Appeal. 5. At the time of admission the following substantial questions of law were framed for consideration. “1. Aggrieved defendants have brought forth this Second Appeal. 5. At the time of admission the following substantial questions of law were framed for consideration. “1. Whether the Lower Appellate Court is right in remanding the case to the trial Court to prescribe terms and conditions for use of the suit well without giving a finding about the extent of lands. Survey Number which are actually entitled to draw water from the suit well? 2. Whether the plaintiffs are entitled to injunction without proving actual loss by acts of the defendants taking water to the other lands?” 6. After careful consideration of the rival submissions and the scrutiny of the materials, the Court is unable to see any merit in this appeal. Admittedly, the plaintiffs and defendants are adjacent land owners. There is a common well situate in Survey No. 340/4. The specific case of the plaintiff is that he was entitled for 1/6th share in the said common well “W” which is not disputed by the defendants. Hence, there cannot be any impediment for grant of declaration in favour of the plaintiff. The plaintiff has sought for declaration that the defendants should not take water from the common well except the land situate at S. No. 340. The defendants have relied on three documents namely Exs. D1 to D3. Both the Courts relied on documents putforth by the defendants and have clearly pointed out that the defendants can take water from the common well situate in S. No. 340/4 only for their lands situate in S. No. 340 and not for any other lands. As rightly pointed out by the learned counsel for the respondents, all the documents relied on by the defendants would clearly refer to the lands situate in S. No. 340 and nothing more. When the defendants come forward with the case stating that they were entitled to use the common well not only for the lands situate in S. No. 340 but also to other lands, the duty was cast upon them to prove the said fact, but they have failed to do so. Thus, in view of the available evidence both the Courts have clearly found that the defendants are entitled to use the common well “W” only for the land situate in S. No. 340 and not for other lands. Thus, in view of the available evidence both the Courts have clearly found that the defendants are entitled to use the common well “W” only for the land situate in S. No. 340 and not for other lands. In so far as the plea of the defendants that the right available to the plaintiff had been extinguished by non-user, it has been rightly rejected by the First Appellate Court by relying on judgment of this Court rendered in 1975(1) MLJ 251 wherein it has held that “an easement acquired by grant cannot be extinguished on the grounds stated in Section 41 of the Easements Act”. In the instant case, there is no evidence even to show that it was not being used for a long time and the Courts below were perfectly correct in rejecting the defence plea in that regard and in so far as the grant of mandatory injunction is concerned, the plaintiff proved that he was taking water to the land shown as “P” from the common well “W” through A, A1, A2, A3, A4 channel and the obliteration part of the channel was also shown as a cause of action and the plaintiff has also given evidence in that regard. In such circumstances, it would become necessary to grant the relief of mandatory injunction and accordingly it has been granted. In so far as the relief of permanent injunction sought for by the plaintiff that the defendants are preventing him from taking water from the well shown as “W1” which belongs to him exclusively, both the Courts have negatived the relief since it was not proved. Under such circumstances, the first appellate Court has granted the relief based on the evidence available and correctly too and hence, it does not require any interference. The first appellate Court has remitted the matter back to the trial court to fix the turn regarding taking water by the respective parties, taking into consideration their shares etc. The First Appellate Court has remitted the matter back to the trial Court only for the purpose of fixing the turn as to the rights of the parties regarding taking water from the common well “W”. 7. The First Appellate Court has remitted the matter back to the trial Court only for the purpose of fixing the turn as to the rights of the parties regarding taking water from the common well “W”. 7. The Court is of the considered opinion that the First Appellate Court which is well vested with powers should have taken into consideration the facts and circumstances of the case and have fixed the turn regarding taking water by the respective parties. Under such circumstances, the remittal order made by the First Appellate Court has got to be set aside and accordingly, the same is set aside. The First Appellate Court is directed to fix the turn regarding taking water from the common well “W” by the p arties, taking into consideration the respective shares of the parties. To that extend, the Second appeal is allowed and in all other respects the judgment of the First Appellate Court is confirmed leaving the parties to bear their costs.