Sivarama Pillai and Others vs Marichami Pillai

K.S. Ramamurthi, J.—This second appeal arises out of a dispute between owners of adjacent lands who also had joint rights in a well. The

family of the plaintiff and defendants 1 and 2 (hereinafter referred to as the defendants) owned certain items of lands of a total extent of 4 acres and

17 cents which were irrigated by a well situate in the lands. Under a partition arrangement of the year 1952, the properties were divided equally

and two items of lands of total extent of 2 acres 3 cents were allotted to the plaintiff and 2 acres and 14 cents were allotted to the defendants. It is

common ground that as an integral part of this partition arrangement, both the branches would have equal rights to take water from the well and

that that right should be worked out by the plaintiff taking water from the well for three days and the defendants in the next three days thereafter,

(not even a case of one party taking for four days and the other party three days in the week). 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 securing the right to irrigate the lands allotted to the respective branches. The complaint

of the plaintiff is that in 1960, the defendants newly purchased two items of lands on the west of a total extent of 99 cents and irrigated the same

from the well in question and that this act of the defendants abstracting water from the well for irrigating the lands newly acquired had resulted in a

substantial diminution of water and thus seriously interfered with the plaintiff''s right to take water from the well during his turn. This was the

plaintiff''s complaint in the notice issued on his behalf which preceded the suit. In the reply notice sent on behalf of the defendants, they did not

traverse the plaintiff''s case of the injury or damage sustained by him; the defendants accepted the fact of their having taken water from the well to

irrigate the lands newly acquired by them but rested their claim on a panchayat at which it was settled that the defendants would be entitled to take

water for irrigating the lands newly acquired and that the plaintiff would also be similarly entitled to take water to irrigate certain lands on the west

which he too acquired. In the course of the trial the defendants desired a local inspection of the property and the well in question as the inspection

would reveal that water from the well was being used to irrigate the lands newly acquired by the plaintiff as well as the defendants, a circumstance

which would corroborate the case of the panchayat put forward by the defendants. It is in connection with this and for other purposes, a

Commissioner was appointed by the trial Court to inspect the property and the Commissioner submitted a report, Exhibit A-5 with a plan, Exhibit

A-4. The trial Court upheld the contentions of the defendants and dismissed the plaintiff''s suit. But on appeal, the lower appellate Court came to a

contrary conclusion. It did not accept the case of the panchayat; it also held that the right to take water from the well was inseparably connected

with the lands which formed the subject matter of the partition arrangement, that the lands cannot be dissociated from the well and that the

defendants had no right to take water to irrigate the lands newly acquired by them. Hence the second appeal by the defendants.

Learned Counsel for the appellants, Mr. K. S. Desikan, raised two points : (1) 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 land he likes, 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 take water from the well, whether their rights are defined in terms of shares or in terms of turns. In other words,

according to learned Counsel so long as the defendants in this case did not exceed the three days in their turn they can use the water not only for

irrigating the lands of an extent of 2 acres 14 cents allotted to them but also the lands on the west newly acquired by them. The substance of the

argument is that the right is to the quantity of water which the defendants can take from the well during their turn of three days and it does not

matter in what manner the defendants use that water; and (2) unless the plaintiff alleges and proves that as a result of the defendants'' taking water

to irrigate other lands, there has been a substantial diminution in the supply of water to which the plaintiff would be entitled in his turn, the plaintiff

will not be entitled to an injunction on the ground of infringement of some legal right in the abstract. In other words, the mere act of the defendant

abstracting water to irrigate other lands would not by itself furnish a cause of action to the suit but there should be proof of the actual injury or

damage sustained by the plaintiff. Learned Counsel stressed the point that in this case there is neither pleading nor evidence to that effect and that

the Courts below have not even recorded any finding in favour of the plaintiff that he had been damnified in any manner.

Learned Counsel on both sides invited my attention to some of the relevant decisions (to which reference would be made presently) which have

laid down the principles governing the rights inter se of persons who own joint rights in a well. Mr. T. P. Gopalakrishnan, learned Counsel for the

respondent stressed the point that it is settled law that in a situation like the instant case, well (the right to take water from the well) cannot be

dissociated from the land, that the well and the land are inseparably connected and that it is necessarily implicit in the very partition arrangement

that the well (that is the water in the well) was set apart and was intended to be used and used only for the lands which were previously irrigated by

this common well prior to the partition and that none of the parties would be entitled to take water from the well to irrigate any other land. The

decisions to which he drew my attention completely support this contention and I am of the view, the matter is not open to any argument contra in

view of the clear pronouncement in the Bench decision of this Court, (Pydimarri Butchi) Venkatarama Sastri and Another Vs. (Suri)

Venkatanarasayya and Others, , which has been followed in the subsequent decisions. It is hardly necessary to mention that this Bench decision is

binding upon me; with respect, I am also add that the principle enunciated therein is correct. Before I refer to the decisions, it is necessary to

emphasise even at the threshold that prior to the division, the well in question was set apart and was used for irrigating the total extent of 4 acres

and 17 cents. Naturally when the properties were divided into equal shares, the appurtenant inseparable right to water is provided and the well not

being capable of division by metes and bounds was not divided but the right to take water from the well was settled by a workable arrangement

each party taking water for three days in the week. It is crucial to bear in mind that the three days in the week fixed for the turn is not in the

abstract, a mere division of the water contents, i.e., so many gallons of water but it is essentially a right to irrigate the lands allotted to the respective

branches flowing from their right of ownership in the land. 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 parties being entitled to be 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.

There is, however, nothing to prevent the parties from entering into an arrangement which would be very unusual and extraordinary that the

arrangement was merely a division of the water in the well in the abstract with right to use the water in any manner they liked to irrigate any lands

they liked, for a matter of that, even use the water for any other purpose. It is for the parties to plead and establish such an unusual agreement.

Otherwise the right in the well will be inseparably connected with the land. At this stage it is necessary to mention that the defendants were fully

alive and conscious of the fact that as a result of the partition arrangement they would not be entitled to irrigate the lands newly acquired by them

and that was the reason why they put forward the theory of panchayat which alone would give them this right but they failed to make out that

panchayat. I am adverting to this fact only to indicate that the intention of the parties is very relevant; the conduct manifested by the defendants in

setting up a case of panchayat proves that so far as the parties are concerned they accepted the position that the arrangement of 1952 by itself

would not confer this right to irrigate other lands.

The first decision to which reference may be made is the decision of Satyanarayana Rao, J., reported in Nanjappa Goundan v. Ramaswami

Goundan (1951) 2 M.L.J. 343, in which the facts were identical. In that case, 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, 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 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. In that case, the situation of the lands admitted a working arrangement of the right to irrigate,

one party taking water from the southern side of the well and the other from the northern side. That is only an incidental aspect of that arrangement.

In the instant case, on account of the level and slope of the lands and other considerations such an arrangement is not feasible (see the plan Exhibit

A-4) and the water could be taken only by turns. The working arrangement with reference to the south, north, east or the west of the well is not a

feasible arrangement. This decision is clear authority for the position that the well is inseparably connected with the ownership of the lands and that

the rights in the well cannot be dissociated from the lands. In other words, the rights to the water in the well are co-extensive with the rights of the

particular party to irrigate the lands. Satyanarayana Rao, J., followed the Bench decision in (Pydimarri Butchi) Venkatarama Sastri and Another

Vs. (Suri) Venkatanarasayya and Others, , as well as the unreported decision of Chandrasekhara Aiyar, J. There are two unreported decisions of

Chandrasekhara Aiyar, J., one in Ammanna v. Ramanna (1916)1 M.L.J. 24 (short notes), and the other in Second Appeal No. 1640 of 1943. I

sent for and perused the original judgment in both the second appeals; Chandrasekhara Aiyar, J., has followed and applied the principle laid down

in (Pydimarri Butchi) Venkatarama Sastri and Another Vs. (Suri) Venkatanarasayya and Others, . In both the cases, Chandrasekhara Aiyar, J.,

has held that the ownership of the parties in the well is inseparably connected with the lands which they were previously owning as co-owners and

it would not be open to one of the co-sharers to take the water to irrigate some other lands. In S.A. No. 1640 of 1943, the facts were almost

identical as in the instant case. The family owned certain lands in three survey numbers along with a well in some other survey number, which was

irrigating these lands. There was a partition arrangement coupled with a convenient arrangement for taking water to irrigate the lands. There too the

defendants claimed a right to take water to any land of theirs so long as it did not exceed their share but that claim was negatived. After extracting

some observations of the Bench decision in (Pydimarri Butchi) Venkatarama Sastri and Another Vs. (Suri) Venkatanarasayya and Others, ,

Chandrasekhar Aiyar, J., observed as follows:

These observations apply in full force to the facts before us. The joint ownership of the well in S. No. 144 is an incident to the joint ownership of

that S. No. 144 and S. Nos. 145, 146 and 147. Acts of enjoyment referable to their ownership must necessarily appertain to the ownership of

those lands. They cannot relate to or follow the ownership of any other land or lands. Any infraction of this joint right or ownership must be

prohibited by an injunction even though no damage be proved as pointed out in the case just now referred following Kanakayya v. Narasimhulu

I.L.R.(1896)Mad. 38.

This decision is clear authority against the defendants on both the points raised by them. In the other case S.A. No. 567 of 1945, the facts were

rather curious, in that the plaintiff who had an 1/12th share in a well to irrigate certain lands which were originally kept joint but divided

subsequently sold away that land and purchased some other lands. He claimed that he was entitled to his right to an 1/12th share in the well to

irrigate the land newly acquired by the plaintiff. Curiously enough, the defendant conceded the position that even though the plaintiff had sold away

the land which was originally irrigated by this well, the plaintiff still retained his right to an 1/12th share in the well. In view of that concession,

certain directions had necessarily to be given to work out the right of the plaintiff to an 1/12th share in the well and the right of the defendant to the

remaining share. But what is crucial for our purpose is the clear expression of opinion by the learned Judge again following the principle of the

Bench decision in (Pydimarri Butchi) Venkatarama Sastri and Another Vs. (Suri) Venkatanarasayya and Others, , that the right to take water from

the well is inseparably connected with the land in question and a co-owner cannot take water to a land newly acquired by him. If any relief was

afforded to the plaintiff in that case to irrigate other lands, it was so awarded purely because of the concession made by the defendant that the

plaintiff still owned and retained a right to an 1/12th share in the well totally dissociated from the land. Chandrasekhara Aiyar, J., observed as

follows:

If for any reason a man loses his right in the joint lands, to the ownership of which lands the right to use the well water is incident or appurtenant, he

cannot insist on his right to take the water to some other property, the two rights being so intimately connected and inter-dependent. This is what

was laid down in S.A. No. 1640 of 1943, following the decision in Venkatarama Sastri v. Venkatanarasayya AIR 1929 Mad. 25.

It is important to notice that the learned Judge pointed out that if any right in the co-owner to irrigate other lands were to be recognised, it would

virtually amount to an infliction of a burden or an obligation in the nature of an easement in favour of one co-owner as against the other and that

there was no warrant in law for any such burden or obligation being imposed.

I shall now refer to the earlier Bench decision of this Court in (Pydimarri Butchi) Venkatarama Sastri and Another Vs. (Suri) Venkatanarasayya

and Others, . the principle of which was followed by Satyanarayana Rao, J., and Chandrasekhara Iyer, J., in the decisions referred to earlier. 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 lands in the

agraharam and all of them have been cultivating certain area of the land described as wet ayacut under the tank. 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-sharers, who filed a suit for injunction

to restrain such wrongful use and also for damages. The Bench held that the right or ownership to the water in the tank was not independent of the

ownership of the land and negatived the claim of the co-sharer that each co-sharer is entitled to a defined share in the water of the tank divorced

from the particular share of the land to which he was entitled. The argument that the co-sharer is entitled and is at liberty to use water in any

manner he chooses so long as he does not exceed the quantity appertaining to his share in the well in the sense that the ownership of the water is

not necessarily connected with the ownership of the land was not accepted. The Court observed as follows:

The argument overlooks a cardinal fact that whereas it is undoubtedly true that agraharamdars own the water of the tank in the same proportion as

they own the lands irrigated by that water it by no means follows from this, that their ownership of the water is unconnected with their ownership of

this land.

For instance, if one acre out of this area of 53 acres passes into the hands of an individual, his right to the water may in a sense be described as

being 1/53 of the tank water. It does not, however, follow from this, that he may take from the tank 1/53 of the water in it and use it for any

purpose he likes. In our opinion, the evidence clearly shows that the enjoyment of the land irrigated by the tank and the enjoyment of water of the

tank are interdependent.

On the facts of that case it was found that the plaintiff co-sharer had sustained injury (diminution in the supply of water) on account of the other

party using the water in the tank for irrigating dry lands. But independently of that finding, the Bench applied the principle of the Bench decision of

this Court in Kanakayya v. Narasimhulu I.L.R.(1896)Mad. 38 and held that the plaintiff co-sharer will be entitled to an injunction even if no

damage was proved. I am of the clear view that this Bench decision is direct authority for the position that when a well or some source of irrigation

irrigate lands belonging to several persons, the source of irrigation cannot be divorced or dissociated from the lands, this Bench decision cannot be

distinguished on the ground that it related to rights of agraharamdars in a village because the entire discussion and the reasonings are based upon

rights of the argraharamdars as "" private rights "" of ownership to the land with similar ""private appertaining rights "" thereto, a right to take water.

From the foregoing it will be seen that the uniform trend of the decisions of this Court is all one way, i.e., not to permit the co-owner to irrigate any

land newly acquired by him. The decision of Somayya, J., reported in Lingappa Goundan and Others Vs. Ramaswami Goundan and Others, , as

well as my recent decision reported in Karuppa Goundar Vs. Muthuswami Goundar, , do not touch this aspect. In those decisions it was held that

it was not open to one co-owner to compel the other co-owners to take water from the well in any particular manner and that it will be open to the

latter to take water from the well either by baling or by using piccottahs or by installing a pump set. In both the decisions, there was no question of

one co-owner attempting to irrigate any other land and the only question was whether the co-owner was compellable to follow any particular

method of irrigation. It only remains to refer to the recent judgment of Anantanarayanan, J., as he then was, reported in Kannan Lorry Service,

Pollachi Vs. Nataraja Motor Service, Pollachi and Others, , on which Mr. K. Raman for the appellant placed considerable reliance. I have

perused the decision with care and I am of the view that the decision in that case turned upon the inference which the learned Judge drew upon the

particular facts of that case and the scope of the decision should be restricted to that case. The observations contained therein should not be

understood as laying a different principle. The learned Judge has distinguished the decision of Satyanarayana Rao, J., in Nanjappa Goundar v.

Ramaswami Goundar (1951) 2 M.L.J. 343, on the ground that in the latter case the facts indicated a notional division of the right to take water

from the well in accordance with the division of the properties. Stopping there, that ground of distinction directly applies to the instant case,

because the lands were divided equally and the right to take water was also divided equally (Note : The division in the instant case was not for the

plaintiff to take water for three days and the defendants to take water for four days, but each in his turn to take water only for three days). With

great respect to Ananthanarayanan, J., I am unable to subscribe to his statement that (Pydimarri Butchi) Venkatarama Sastri and Another Vs.

(Suri) Venkatanarasayya and Others, , has not even remotest reference to the question The learned Judge (Ananthanarayanan, J.,) was of the view

that the decision in Ramachandra Gounder Vs. Venkatachala Gounder, , rested on the ground that water in that case was hardly sufficient even for

the actual extent of the ayacut and that any extension of it would cause great prejudice to the other ayacutadars. With greatest respect to learned

Judge, that is not what the Bench decided. As I have observed already the Bench clearly held that irrespective of the question of damage, the

plaintiff would be entitled to an injunction on the simple ground that the latter has no right to use water for irrigating other lands and that the right to

take water from the well is inseparably connected with the lands. It is necessary 1o extract the following observations from the Bench judgment to

focus the ground of decision in that case.

In this case, there is a finding that owing to the unauthorised use of the water by the defendants, the plaintiffs have suffered damage. In our opinion,

the plaintiffs would be entitled to an injunction even if no damage was proved. The principle is that applied in Kanakayya v. Narasimhulu I.L.R.

(1896) Mad. 38. In the case of a party wall it was held that one of two co-tenants was entitled to the removal of a portion newly erected by the

other co-tenant, although the former had suffered no inconvenience from it. Parker, J., observed:

It is true that the refusal of plaintiffs to give the required permission may be ill-natured and that the raising of the wall will not really harm them.''

Notwithstanding, they were held entitled to the relief, the principle laid down in Watson v. Gray (1838) L.R. 14 Ch.D. 192, was applied. We

think, the same rule applies by analogy to the case of joint tenants of a tank.

I am unable to follow the several observations contained in Ramachandra Gounder Vs. Venkatachala Gounder, , as they are opposed to the

Bench decision of this Court. I see considerable substance in the contention of the learned Counsel for the respondent that the general principles

referred to in Ramachandra Gounder Vs. Venkatachala Gounder, , with regard to the common enjoyment of common property by co-owners, i.e.,

as between co-owners each is entitled to use common property in the best manner possible without deteriment to the enjoyment of the owner and

that so long as the property does not suffer any injury or result in any loss, the co-owner cannot make any complaint, will not apply to cases like

these where the co-ownership is not only in respect of lands but in respect of wells which are inseparably connected with the lands. With great

respect, cases dealing with rights to common passage and extension of balcony over common land, are not of much relevance to the instant case.

Learned Counsel for the appellant drew my attention to the decision in Kayambu Servai Vs. Karuppiah Servai and Others, as supporting his

contention that the plaintiff must allege and prove diminution in, the supply of water. That decision has no relevance to the instant case. It related to

the right of irrigation in two villages to take water from a particular tank and the argument that when the defendant attempted to irrigate his lands in

some other village the plaintiff will be entitled to an injunction. The Court held that so long as the plaintiff''s right to accustomed supply of water has

not been interfered with, the plaintiff cannot have a grievance against the defendants. That case dealt with a case of a public source of irrigation and

the argument there was that this right of the plaintiff to take water from the public source of irrigation like a government channel or a government

tank was nonetheless a proprietary right and that by itself would entitle the plaintiff to an injunction when the defendant attempted to take water for

irrigating some other lands. Following the well-settled rule of law laid down in Nynappa Servai v. Veeran I.L.R.(1909) Mad. 423, and Basavana

Gowd v. Narayana Reddi I.L.R.(1931)Mad. 793 : 61 M.L.J. 563, this Court held that in the case of public channels or tank no individual

ayacutdar has a right to complain unless, there is a material diminution in the accustomed supply of water. The principle of that decision will not

apply to a case of co-owners of lands with joint rights in a well.

Even on the question of damage I am against the defendants having regard to the fact that the plaintiff made a specific complaint that on account

of the wrongful conduct of the defendant, there was a diminution in the supply of water to the plaintiff and the defendants did not traverse that

position in his reply notice but they only contended that there was a panchayat and that at that panchayat, the parties were allowed to irrigate lands

newly acquired by them. It is unnecessary to deal with the aspect further because I am of the view that independently of any question of damage,

the plaintiff will be entitled to an injunction restraining the defendants from taking water for irrigating other lands. It is necessary to observe that this

limit or fetter on the defendant with regard to the use of the water from the well equally applies to the plaintiff who too cannot take water for

irrigating the lands newly acquired by him.

For all these reasons, the second appeal fails and is dismissed. In the circumstances of the case, I direct the parties to bear their own costs in the

second appeal.

No leave.