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2007 DIGILAW 2479 (MAD)

V. Chellappa v. R. S. Natarajan & Another

2007-08-07

A.SELVAM

body2007
Judgment :- Challenge in this appeal is to the judgment and decree dated 27/1/2005 passed in Appeal Suit No.131 of 2004 by the Principal Sub-Court, Tenkasi, wherein the judgment and decree dated 18/10/2004 passed in Original Suit No.456 of 2003 by the Principal District Munsif Court, Tenkasi are reversed in part. 2. The present appellant as plaintiff has instituted the Original Suit No.456 of 2003 on the file of the Principal District Munsif Court, Tenkasi for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as the defendants. 3. The epitome of the averments made in the plaint may be stated like thus:- The properties mentioned in the schedules 1 to 3 is originally belonged to the family of the plaintiff. The second schedule and some other properties have been allotted to the share of the mother of the plaintiff viz., Vellaiammal under a partition deed dated 24/3/1976. After her demise, the plaintiff and his brother viz., Sivalinga Raja have effected partition and in the said partition, the suit second schedule property has been allotted to the share of the plaintiff. The well mentioned in the suit first schedule has been dug up only for the suit 2 and 3 schedule properties. The suit 2 and 3 schedule properties are alone entitled get water from the common well mentioned in the suit first schedule. The defendants have purchased the suit third schedule. The plaintiff is having 1/6th share and the defendants 1 and 2 are having 5/6th share in the common well mentioned in the suit first schedule. The defendants have demanded the plaintiff to sell the suit second schedule for a paltry sum. Since the plaintiff has refused to concede the demand of the defendants, they are making arrangements to irrigate the property mentioned in the fourth schedule by taking water from common well. Under the said circumstances, the plaintiff has filed the present suit for the relief’s indicated supra. 4. The nubble of the averments made in the written statement filed by the defendants may be stated like thus:- It is true that the ancestor of the plaintiff has dug up the well mentioned in the first schedule for the purpose of irrigating the properties mentioned in the second and third schedule. 4. The nubble of the averments made in the written statement filed by the defendants may be stated like thus:- It is true that the ancestor of the plaintiff has dug up the well mentioned in the first schedule for the purpose of irrigating the properties mentioned in the second and third schedule. But it is false to contend that the properties mentioned in the second and third schedule are alone entitled to get water from the well mentioned in the first schedule. The father of the defendants viz., R. Subramania Nadar has purchased 1/6th share in the well mentioned in the first schedule under a registered sale deed dated 12/10/1972. The father of the defendants has irrigated the land which is mentioned in the fourth schedule by using the common well mentioned in the suit first schedule. In the common well, there is a perennial supply of water. The defendants are entitled to irrigate the property which is mentioned in the fourth schedule by taking water from the common well. There is no merit in the suit and the same deserves dismissal. 5. On the basis of the divergent pleadings raised by either party, the trial Court has framed necessary issues and after contemplating both the oral and documentary evidence has dismissed the suit in toto. Against the judgment and decree passed by the trial Court, the aggrieved plaintiff has preferred Appeal Suit No.131 of 2004 on the file of the Principal Sub-Court, Tenkasi. The First Appellate Court after reappraising the evidence available on record has allowed the appeal in part and granted the reliefs sought for in respect of the property mentioned in the second schedule and confirmed the judgment and decree passed by the trial Court in respect of other relief’s sought for in the plaint. Against the judgment and decree passed by the First Appellate Court, the present Second Appeal has been filed at the instance of the plaintiff. 6. At the time of admission of the present Second Appeal, the learned counsel appearing for both sides have agreed to argue the appeal itself and therefore, records have been called for and the appeal is disposed of on merits. 7. On the side of the appellant/plaintiff, the following substantial questions of law have been raised. "1. 6. At the time of admission of the present Second Appeal, the learned counsel appearing for both sides have agreed to argue the appeal itself and therefore, records have been called for and the appeal is disposed of on merits. 7. On the side of the appellant/plaintiff, the following substantial questions of law have been raised. "1. Whether 2001 (4) LAW WEEKLY - 706 is correctly decided and in view of wealth of authorities contrary to that and so whether 2001 (1) LAW WEEKLY – 706 requires reconsideration? 2. Is not the right of respondents/defendants right if any got merged with the purchase of 5/6 lands attached to the well? 3. Whether subsequent purchaser of 5/6 right in a well can take water from the well to lands which are not associated with the well or to lands to which the well was not dug merely because he hold 5/6 share to the disadvantage of 1/5th right holder?" .8. The learned counsel appearing for the appellant/plaintiff has repeatedly contended that the ancestor of the plaintiff has dug up the well mentioned in the suit first schedule and the properties mentioned in the suit second and third schedules are alone entitled to get water from the common well mentioned in the suit first schedule and in the common well mentioned in the suit first schedule, the plaintiff is having 1/6th share and the defendants are having 5/6th share and they are entitled to take water from the common well, so as to irrigate the property mentioned in the third schedule and they demanded the plaintiff to sell the suit second schedule for a paltry sum and since the plaintiff has refused to concede their demand, they are making arrangements to irrigate the property which is mentioned in the suit fourth schedule by way of taking water from the common well and the suit fourth schedule is not entitled to get water from the common well mentioned in the suit first schedule and under the said circumstances, the plaintiff has come forward with the present suit for the relief’s of declaration and perpetual injunction. The trial Court without considering both the factual and legal aspects has erroneously dismissed the suit in toto and the First Appellate Court has also equally committed the very same mistake and therefore, the judgments and decrees passed by the Courts below are liable to be set aside and the suit may be decreed as prayed for. 9. Per contra, the learned counsel appearing for the respondents/defendants has also equally contended that the father of the defendants viz., Subramania Nadar has purchased 1/6th share in the common well mentioned in the suit first schedule under a registered sale deed dated 12/10/1972 and subsequently, he purchased 4/6th share under a registered sale deed dated 27/7/1974 and since the father of the defendants have purchased the right of taking water to the extent of 5/6th share, the defendants are entitled to irrigate the property mentioned in the suit fourth schedule by taking water from the common well and the Courts below after analysing the rival contentions raised by either party have rightly rejected the relief’s sought for in the plaint in respect of the suit fourth schedule and therefore, the concurrent findings given by the Courts below are not liable to be interfered with and further, the substantial questions of law raised on the side of the appellant/plaintiff are not legally sustainable and altogether, the present Second Appeal deserves dismissal and at the stage of admission. 10. Before considering the rival submissions made by either side, it has become indefeasible to perorate the following admitted facts. 11. It is an admitted fact that the suit common well has been mentioned in the suit first schedule and the same has been dug up by the ancestor of the plaintiff. It is also equally an admitted fact that the plaintiff is having title to the property mentioned in the second schedule and also 1/6th share in the suit common well. Likewise, the defendants are having 5/6th share in the suit common well and the properties mentioned in the third schedule as well as fourth schedule are their absolute properties. The specific case of the plaintiff is that the properties mentioned in the schedules 2 and 3 are alone entitled to get water from the common well and the property mentioned in the fourth schedule is not entitled to get water from the same. The specific case of the plaintiff is that the properties mentioned in the schedules 2 and 3 are alone entitled to get water from the common well and the property mentioned in the fourth schedule is not entitled to get water from the same. In the written statement filed on the side of the defendants, it has been clearly admitted that the properties mentioned in the schedule 2 and 3 are entitled to get water from the common well mentioned in the suit first schedule and at the same time, the property mentioned in the fourth schedule is also entitled to get water from the common well. .12. On the basis of the claims and counter claims, the Court can easily discern that the only point which has now winched to the fore is ."Whether the property mentioned in the suit fourth schedule is entitled to get water from the common well mentioned in the suit first schedule?" 13. At this juncture, it would be more useful to look into the clear admission made by D.W.1. The first defendant has been examined as D.W.1. During the course of cross-examination, he has clearly admitted to the effect that the well mentioned in the first schedule has been dug up only for the purpose of irrigating the properties mentioned in the suit second and third schedules. Further, he has candidly admitted that the property mentioned in the fourth schedule is not entitled to get water from the common well mentioned in the first schedule. Further, D.W.1 has also admitted that except the lands mentioned in the suit second and third schedule, other lands are not entitled to get water from the common well. Therefore, from the clear admission made by D.W.1, there is no incertitude in coming to a conclusion that the properties mentioned in the suit second and third schedules are alone entitled to get water from the common well which is mentioned in the suit first schedule and the property mentioned in the fourth schedule cannot be irrigated by taking water from the same. 14. On the basis of the factual aspects mentioned supra, the Court has to analyse the decisions accepted by the learned counsel appearing for the appellant/plaintiff. 15. The first and foremost decision is reported in 1929 THE LAW WEEKLY – 613 (PYDIMARRI BUTCHI VENKATRAMA SASTRI (DECEASED) AND ANOTHER Vs. 14. On the basis of the factual aspects mentioned supra, the Court has to analyse the decisions accepted by the learned counsel appearing for the appellant/plaintiff. 15. The first and foremost decision is reported in 1929 THE LAW WEEKLY – 613 (PYDIMARRI BUTCHI VENKATRAMA SASTRI (DECEASED) AND ANOTHER Vs. SURI VENKATANARASAYYA AND OTHERS), wherein this Court has held that - "From immemorial usage must be implied an agreement that the water of the tank was to be used for the wet ayacut only. The use of water for other land than the wet ayacut was illegal. The co-sharers who were damnified can sue for injunction as well as damages. It would be absurd to say that they should sue for partition of tank water and not for injunction. Where a co-sharer makes an unauthorised use of property, the other co-owners may sue for injunction although no damage is caused to them by such use." .16. The second decision is reported in AIR 1971 MADRAS – 230 (SIVARAMA PILLAI AND OTHERS Vs. MARICHAMI PILLAI), wherein this Court has held that ."In the nature of things, a well cannot be divided by metes and bounds and persons who own joint rights in a well (to the right of the water in the well) can enjoy that right either jointly or separately only by resort to a workable arrangement safeguarding and security the right to irrigate the lands allotted to the respective branches. In such a situation the right to take water from the well cannot be dissociated from the land, and it is necessarily implicit in the very partition arrangement that the water in the well was set apart and was intended to be used only for the lands which were previously irrigated by the common well prior to the partition and none of the parties would be entitled to take water from the well to irrigate any other land. This limit or fetter applies to both the parties. The infraction of the right in such a case can be prohibited by an injunction independently of any proof of damage." .17. The third decision is reported in 1999 (2) MLJ – 648 (ARUNACHALA NAICKER AND OTHERS Vs. This limit or fetter applies to both the parties. The infraction of the right in such a case can be prohibited by an injunction independently of any proof of damage." .17. The third decision is reported in 1999 (2) MLJ – 648 (ARUNACHALA NAICKER AND OTHERS Vs. JANAKIRAMA NAICKER), wherein this Court has held that ."The right in the well cannot be created as a distinct item of property divorced from the lands for which the well is to serve as a source of irrigation." .18. The fourth decision is reported in 1999 III MLJ – 746 (KASI NAIDU Vs. GOVINDARAJAN AND OTHERS), wherein also this Court has held that ."The ownership of water in the well is independent to the ownership of land and hence the use of water for lands other than that for which the well is intended is not permissible." 19. From the conjoint reading of the decisions referred to earlier, the following legal aspects have become emerged. a. The ownership of water in a well is independent to the owner of land and therefore, the use of water for lands other than that for which the well is intended is not permissible under law. .b. The right to take water from the well cannot disassociate from the land. .c. The infraction of the right in such a case can be prohibited by an injunction independently of any proof or damage. 20. In short, the lands which are not under the irrigation of a common well cannot be irrigated by taking water from the same. 21. On the basis of the legal aspects mentioned supra, the Court has to analyse the present case. It is an admitted fact that the lands mentioned in the suit second and third schedule are absolutely entitled to get water from the common well mentioned in the suit first schedule. The property which is mentioned in the fourth schedule is not under the irrigation of the common well mentioned in the suit first schedule. In view of the decisions referred to supra, the property mentioned in the fourth schedule is not at all entitled to get water from the common well mentioned in the suit first schedule. Now, the defendants are making arrangements to take water from the common well mentioned in the suit first schedule to the property which is mentioned in the suit fourth schedule. Now, the defendants are making arrangements to take water from the common well mentioned in the suit first schedule to the property which is mentioned in the suit fourth schedule. As per law, the defendants are not entitled to take water from the common well to the property mentioned in the fourth schedule. Therefore, the plaintiff is entitled to get the relief’s sought for in the plaint in toto and the First Appellate Court has granted the relief’s to the extent sought for in respect of the suit second schedule. The First Appellate Court has relied upon the decision reported in 2001 (1) LAW WEEKLY – 706 (MOOKAMMAL AND ANOTHER Vs. CHITRAPUTRA KARAYALAR AND ANOTHER) wherein this Court has held that "1/3 right in the well and the concomitant authority right to draw 1/3rd water is a transferable right. Passing of the right under the document to take water to irrigate the lands unconnected with well through Vari, Channel, etc., is permissible." 22. It is an acknowledged principle of law that each decision must be determined according to its circumstances and also facts situations obtained therein. In the decision referred to supra, the water right to the extent of 1/3rd has alone been conveyed under the document in question and on that basis alone, this Court has held as mentioned above. But in the instant case, the father of the defendants viz., Subramania Nadar has purchased 5/6th share in the common well mentioned in the first schedule. Therefore, the right purchased by the father of the defendants is totally distinct from the right mentioned in the decision referred to above. Therefore, the facts and circumstances mentioned in the decision referred to above are totally alien from the facts and circumstances of the present case and the decisions mentioned above cannot be attuned in the present case. 23. Both the trial Court as well as the First Appellate Court have failed to consider the decisions which are in existence from time immemorial. The established principle of law from time immemorial is that the lands which are unconnected with the common well cannot be irrigated and further, the right to take water from the common well cannot be disassociated from the land which is alone entitled to get the water from the same. 24. The established principle of law from time immemorial is that the lands which are unconnected with the common well cannot be irrigated and further, the right to take water from the common well cannot be disassociated from the land which is alone entitled to get the water from the same. 24. It has already been pointed out that D.W.1 has clearly admitted in his evidence that the land mentioned in the fourth schedule is not entitled to get water from the common well mentioned in the first schedule. Despite of admission made by D.W.1, the First Appellate Court has made a sardonic attempt and relied upon the decision reported in 2001 (1) LAW WEEKLY – 706 (MOOKAMMAL AND ANOTHER Vs. CHITRAPUTRA KARAYALAR AND ANOTHER). It has already been pointed out that the facts mentioned in the decision are not identical to the facts of the present case. Therefore, the decision reported in 2001 (1) LAW WEEKLY – 706 (MOOKAMMAL AND ANOTHER Vs. CHITRAPUTRA KARAYALAR AND ANOTHER) is not applicable to the present case. 25. On the side of the appellant, the third substantial question of law has been raised to the effect that the decision reported in 2001 – 1 LAW WEEKLY – 706 (MOOKAMMAL AND ANOTHER Vs. CHITRAPUTRA KARAYALAR AND ANOTHER) is not correct and the same has to be referred to a larger Bench in view of the settled law of the subject. In fact, in the decision reported in 2001 1 LAW WEEKLY – 706 (MOOKAMMAL AND ANOTHER Vs. CHITRAPUTRA KARAYALAR AND ANOTHER), the present appellant is not a party and further, the same has not been agitated before this Court. Therefore, the first substantial question of law is totally unwarranted to the present appeal. The other substantial questions of law raised in the appeal are legally sustainable and on that basis, the plaintiff is entitled to get the relief’s sought for in the plaint. 26. In view of the foregoing narration of both the factual and legal aspects, this Court has found a considerable force in the argument advanced by the learned counsel appearing for the appellant/plaintiff and no sappiness in the argument advanced by the learned counsel appearing for the respondents/defendants. 27. In fine, this appeal is allowed without costs. The judgments and decrees passed by the Courts below are set aside and the suit is decreed as prayed for without costs.