U. Swamy Aiyah vs Velu Konar and Muthiah Konar

E. Padmanabhan, J.—Second Appeal No. 837 of 1999 has been preferred by the sole plaintiff in O.S. No. 28 of 1985 on the file of the

District Munsif Court, Sankarankovil being aggrieved by the Judgment and decree dated 30.7.1999 made in A.S. No. 46 of 1996 on the file of

the Principal Sub Court, Tenkasi in confirming the judgment and decree of the learned District Munsif in O.S. No. 28 of 1985. Second Appeal

No. 838 of 1999 has been preferred by the sole plaintiff in O.S. No. 112 of 1985 on the file of the District Munsif Court, Sankarankovil being

aggrieved by the Judgment and decree dated 30.7.1998 made in A.S. No. 45 of 1996 on the file of the Principal Sub Court, Tenkasi in confirming

the judgment and decree dated 1.3.31996 made in O.S. No. 112 of 1985 on the file of the District Munsif Court, Sankarankovil.

The same plaintiff, who has been unsuccessful before the two courts below in both the suits, is the appellant in both the appeals. These two

appeals have been preferred against the concurrent judgment of the two courts below. The findings rendered by the two courts are also

concurrent.

Heard Mr. K. Srinivasan, learned counsel for, the appellant in both the appeals and Mr. R. Thirugnanam, learned counsel appearing for the

respondent Nos. 1 and 2 in both the appeals who have lodged caveat.

O.S. No. 28 of 1985 was instituted by Swamy Aiah praying for declaration that the plaintiff is the absolute owner of the suit property only in

which the well is situate and consequently grant a permanent injunction restraining the defendants from putting up electric motor pump set or

mechanical process to draw water or take water from the suit well in the property belonging to the plaintiff in derogatory to the present

accustomed mode thorough mamool Kamalai and for costs. The suit O.S. No. 126 of 1985 has been instituted by the very same plaintiff seeking

for the judgment and decree (1) directing the defendants 1 to 5 to pay Rs. 2000/- to the plaintiff by way of damages with subsequent interest (ii) to

grant a permanent injunction restraining the third defendant from supplying electricity connection to the defendants 1 and 2 (iii) for costs and for

consequential reliefs.

According to the plaintiff the suit property absolutely belonged to the plaintiff and he is entitled to 2/3rd share water in the well located in old

Survey No. 176/1 corresponding to new Survey No. 176/132. The further case of the plaintiff is that he is in possession and enjoyment of the suit

property which originally belonged to his father under the family arrangement under which the plaintiff has succeeded to the property. The family

arrangement has been effected between the plaintiff''s father and first defendant''s father Shanmuga Konar. It is the further case of the plaintiff that

his father dug a well in his patta land comprising Survey No. 176/1 in the year 1939 of his own and by an arrangement he agreed to share the

water in the well in the ratio 2:1. The defendant''s father had paid Rs. 150/- only towards the amount spent for digging the well and he has been

given l/3rd share of water in the well as per the oral arrangement entered between the plaintiff''s father Udayar Konar and his brother Shanmuga

Konar during 1940. As per the said arrangement, the two brothers have been enjoying the suit well till recently. The defendants can enjoy the right

of taking 1/3rd share of water and they cannot have any right either in the patta land belonging to the plaintiff in which the well is located.

According to the plaintiff for the last 45 years or so, the well is being enjoyed in the said ratio. In the registered Othi deed also, the same has been

reiterated. The water from the well has to be drawn for agricultural purpose and the defendants are entitled to draw l/3rd share of water. The said

right is an easmentary right to a limited extent. Even if it is assumed to be a right, such a right is restricted to l/3rd. The defendant''s father was

drawing water in the same manner. After the defendant''s father the defendants were also drawing water to the said extent of l/3rd share and the

defendants are not entitled to more than 1/ 3rd.

The plaintiff further put forward a case that the defendants cannot draw or take or carry water to their land except through customary Kamalai

process and they cannot draw by mechanical or electrical motor pump set. Such motor pump set will affect and weaken the availability of water.

Due to paucity of rain and failure of seasonal rain and changing monsoon besides drought that prevailed, the water in the well is progressively

decreasing and threatens to fail unless carefully, reasonably and prudently maintained and taken whether it is a right or easement the defendants

cannot increase the burden or secure any undue advantage or cause in the failure or sufficiency of water to the plaintiff who holds title and a major

share in the well. If the defendants are allowed to install a motor pump set it will definitely affect his legal right because by means of the electrical

motor pump set all the water will be sucked in one day leaving the plaintiff who has got major share devoid of any water thereby his legal right will

be in jeopardy. Further it is contrary to the usual practice of drawing water by Kamalai. The supply of water in the well is not so copious and the

installation of electric motor will naturally dwindle the quantity of water and thereby the plaintiff cannot get the quantity of usual quota of water. The

installation of electrical motor will also greatly affect the existing channel which is running in the part of land belonging to the plaintiff thereby his land

also will be affected to a considerable extent.

According to the plaintiff the well is the only source of irrigation for his land and if the defendants are allowed to install pump set the plaintiff

cannot get his share and normal quota of water and thereby he cannot cultivate his land and thereby the land will also become fallow in due course

of time. The plaintiff has no objection to the customary practice obtained till now by means of Kamalai. As the defendants are threatening to install

electric motor pump set, the present suit has been filed as installation of electric motor and pump will prejudice the mamool water rights of the

plaintiff.

In O.S. No. 112 of 1985, apart from setting up the above plaint averments as part of the averments in the latter suit, the plaintiff pleaded that the

defendants had installed electric motor and pump set and if he draws water from the well by means of electric motor and pump set, his interest will

suffer as the defendants 1 and 2 would draw the entire volume of water in the well with the help of the electric motor pump set. The Electricity

Board had given the connection despite the objections and protest by the plaintiff. The service connection given by the Electricity Board to the

motor pump set is an illegal action. The defendants 1 and 2 are drawing water through electric motor pump set and the defendants 1 and 2 have

committed gross contempt of court with respect to which a petition has also been filed by the plaintiff. As the defendants 1 and 2 are drawing the

entire volume of water from the well daily, as a result of which no water is available to the plaintiff to irrigate his lands. The defendants 1 and 2 are

supplying adjacent lands belonging to the third parties for the past 50 days and there has been no supply of water to the crops raised by the

plaintiff and he had suffered heavy damages. The plaintiff had estimated the damages at Rs. 2,100/-

The third defendant illegally continues to supply electric energy to the defendants 1 and 2 to enable them to run the electric motor pump set

flouting the orders of the court. Hence an injunction should be issued restraining the third defendant from supplying electric energy to the motor

pump set installed by the defendants 1 and 2.

After the filling of the earlier suit in O.S. No. 28 of 1985, the third defendant in collusion with the defendants 1 and 2 granted service

connection for the electric motor pump set. The plaintiff had sent number of representations to 5th respondent and there has been no positive

action. The defendants have not cared for the orders passed by the court. The Electricity Board persons have not even cared to follow the orders

passed by the Civil Court which has resulted in heavy lose and damages to the plaintiff and hence they are individually and severally liable to

compensate the damages sustained by the plaintiff till date of plaint. Hence the defendants 3 to 5 have been impleaded as parties. The 3rd, 4th and

5th defendants are respectively the Assistant Divisional Engineer, TNEB Sankarankovil, Superintending Engineer, TNEB, Tirunelveli and the

Chairman of the Electricity Board.

The defendants 1 and 2 resisted the suit claiming that they are entitled to half share in the suit well and they have got equal right to draw water

and the averments set out to the contra is false. The plaintiff is not entitled to the relief of declaration prayed for and the entire case of the plaintiff is

false and mischievous. It is misleading and untrue to plead that drawal of water by mechanical process like electrical motor pump set would result

in deprivation of the plaintiff''s rights, as there is copious supply of water. Normally the water percolates to seven yards even in summer and in

winter it is upto ten yards. Even if a motor pump set is employed the water level will remain the same. No damage has been caused or will be

caused to the plaintiff by the defendants 1 and 2 installing electrical motor pump set and drawing water. The defendants 1 and 2 being the co-

owners they are entitled to half share in the suit well and entitled to draw water to their advantage and the plaintiff cannot object to the same. The

plea that only water should be drawn through Kamalai is devoid of merits and the plaintiff is not entitled to any of the reliefs in both the suits. The

defendants 1 and 2 also denied collusion or violation of orders of injunction. The defendants 1 and 2 further pleaded that they are entitled to half

share and they could very well draw water during their turn.

Both the suits were consolidated together on the file of the District Munsif Court. Sankarankovil. In O.S. No. 28 of 1985, the following issues

were framed :-

(1) Whether the plaintiff is the exclusive owner of the suit well?

(2) Whether the defendants were drawing water only with the permission of the plaintiff?

(3) Whether the defendants are entitled to install electric motor and pump set?

(4) Whether the suit claim is barred by res judicata ?

(5) Two what relief the plaintiff is entitled to ?

In the latter suit O.S. No. 112 of 1985, the trial court framed six issues for consideration and they are:

(1) Whether the plaintiff is the exclusive owner of the suit well ?

(2) Whether the defendants 1 and 2 have been drawing water only with the permission of the plaintiff?

(3) Whether the defendants 1 and 2 have got a right to install electric motor pump set ?

(4) Whether the suit claim is barred by res judicata ?

(5) Whether the action of the defendants 1 and 2 had caused damages to the plaintiff?

(6) To what relief the plaintiff is entitled to ?

The plaintiff marked Exs. A 1 to A 33. while the defendants marked Exs. B 1 to B 13. The Commissioner''s report and plan were marked as

Exs. C1 and C2. The plaintiff examined himself as P.W.1., besides examining three witnesses. The defendants have examined three witnesses on

their side.

After consideration of the oral and documentary evidence, the trial court held that the plaintiff and the defendants 1 and 2 on one side are each

entitled to half share in the suit well as has been already decided in O.S. No. 33 of 1945 on the file of the District Munsif Court, Kovilpatti. The

suit claim is barred by res judicata. The defendants 1 and 2 are entitled to install electric motor pump set and draw water from the suit well. The

plaintiff''s claim had been disbelieved and rejected. By drawing water through electric motor and pump set no prejudice has been established or

proved and the plaintiff had miserably failed to prove alleged damages claimed by him. In the light of the said findings the trial court dismissed the

suit and on appeal the learned Subordinate Judge. Tenkasi confirmed the judgment and decree of the trial court.

In this appeal, Mr. K. Srinivasan, learned counsel for the appellant raised the following three questions of law: -

(i) Whether the findings of the courts below are vitiated by their failure to consider the specific plea set out in the pleadings regarding the enjoyment

of water rights in the well ?

(ii) Whether the denial of relief of injunction against the defendants from drawing water by way of electric motor and pump set is illegal? and

whether the said act of the defendants caused substantial injury to the crops of the plaintiff ?

(iii) Whether the rejection of Ex. A.3 is sustainable in law ?

The above common questions of law were raised by Mr. K. Srinivasan in both the appeals. The learned counsel took the court through

pleadings as well as documentary and oral evidence let in before the courts below and persuasively contended that the Second Appeals have to be

allowed and the judgment and decree of the courts below are liable to be set aside:

The contention advanced by Mr. K. Srinivasan was rightly met by Mr. R. Thirugnanam, learned counsel appearing for the contesting

respondents submitting that no interference is called for with respect to the concurrent findings recorded by the courts below.

Mr. K. Srinivasan, learned counsel for the appellant though persuasively advanced his arguments on the above questions of law, he is unable to

point out any perversity or omission in the appreciation of evidence, both oral and documentary by the two courts below. The learned counsel for

the appellant is unable to point out any material admission which would clinchingly prove the appellant''s case or which may warrant an interference

with the concurrent findings.

The courts have concurrently held that the plaintiff is only entitled to half share in the suit well and the remaining half share is owned by the

defendants 1 and 2 and they have got right to draw water. As regards the damages claimed, the courts below also concurrently found that the

plaintiff had not established damages. The two courts have also held that the plaintiff had not let in any evidence about springs available in the well

or that there is diminution of water. As seen from Ex. B. 1. the defendants are entitled to half share in the suit well and to get over the same, the

plaintiff sought to produce certain documents before the first appellate court which had been rejected and the same documents were sought to be

produced by way of additional evidence in these Second Appeals. Those documents being unregistered documents and having neither been

pleaded before the courts below in the suit, nor been marked pending the suit are liable to be rejected as inadmissible. The two courts have rightly

rejected those documents as no plea had been set out about the alleged release by the defendants'' father or by the defendants. The present

application taken out for reception of additional evidence in these Second Appeals is also liable to be dismissed as nowhere it has been pleaded by

the plaintiff that such a release was executed by the defendants'' father or that there had been a reduction of the defendants'' share in the suit well

by any written instrument, nor such an evidence had been let in by the plaintiff before the courts below. The documents being unregistered, not

being exhibited before the courts below, and not being disclosed or pleaded in the pleadings, this Court will not at all be justified in entertaining the

said documents.

Ex. A 3 had also not been pleaded before the courts below and the same had been rightly rejected to. As regards the over burdening of the

well by drawal of water through the electric motor pump set, excepting the interested testimony of the plaintiff there is no other evidence. That

apart in the 21st century it is too late in the day for the plaintiff to contend that the defendants should continue to draw water through Kamalai.

Admittedly order of the present day is to install electric motor pump sets wherever power is available in respect of the wells located in agricultural

lands and where there is no power available, by way of diesel pump sets.

Though a hue and cry has been made by the plaintiff to prove that by installation of electric motor and pump set the defendants will draw more

water and ultimately the well will get dry. But absolutely, there are no merits in this. To give a quietus between the parties, this Court suggested that

the plaintiff and the defendants shall enjoy their right to draw water by rotation for which the learned counsel for the appellant even after taking time

reported that the plaintiff/appellant is not willing for such a rotation. The defendants 1 and 2 have readily accepted to adopt such a course and also

they reported that they have no objection for the plaintiff in his turn to locate an electric motor pump set. This would show that the plaintiff is not

really interested in getting his due share of water. Further the plaintiff is not carrying on agricultural operations and he is employed as a Divisional

Engineer in the services of the State of Tamil Nadu. It is only the lessee who has been cultivating the lands.

Mr. K. Srinivasan, learned counsel for the appellant vehemently contended that there is no reason or rhyme to allow the defendants to draw

more water or permitting him to install electric motor pump set subjecting the plaintiff to loss or deprivation of due share in the well. This again in is

a misconception.

The learned counsel for the appellant relied upon the decision of Somayya, J. in Lingappa Goundan and Others Vs. Ramaswami Goundan and

Others, . In the said pronouncement it has been held thus : -

In a case where a partition is not feasible or possible as in this case, the Courts have undoubtedly the right to prescribe the method in which the

common well can be enjoyed by the parties. Here a half right in the well is given to each sharer. It is not even a case where the well in its entirety is

kept in common, but we need, not dwell on this distinction. We will take it that the well was kept common for all co-sharers. If so, since in the

nature of things, the well cannot be cut up into three parts and one portion given to each sharer, the best method of providing for the rights of all

parties is to fix the turns during which each sharer can bale out water from the well.

This Judgment will in no way advance the case of the appellant. The learned counsel for the appellant relied upon the judgment of K. S.

Ramamurthi, J. in Karuppa Goundar Vs. Muthuswami Goundar, . K.S. Ramamurthi, J., had occasion to consider the issue of deprivation of due

share or mamool supply for water from the well or the right to take mamool supply from the well and if it is seriously affected, it is for the plaintiff to

institute a suit making necessary averments and establish to what extent and to what manner the conduct of the defendant in installing a pump set

had infringed or affected the rights of the plaintiff. The learned Judge held thus: -

Each co-owner is entitled to enjoy the common property in the best and most advantageous ''manner so long as there is no invasion or

infringement of the rights of the other co-owner, or co-owners. It is not open to the plaintiff, to dictate to the defendant as to how best the

defendant is to enjoy his right to take water from the well, of which he is a co-owner, having half share therein. If, however, by the defendant

enjoying his right to take water from the well, there is a substantial deprivation or infringement of the rights of the plaintiff, in the sense that the

plaintiff is effectively prevented from enjoying his right to take water from the well, the plaintiff may have a cause of action. That cause of action is

not because the defendant has installed a pump set but because the defendant as a co-owner in his enjoyment of his rights in the property, prevents

the plaintiffs from enjoying the tatter''s interest in the property. If the plaintiff is deprived of the mamool supply of water from the well or his right to

take the mamool supply from the well is seriously affected as a result of the defendant installing the pump set, it is for the plaintiff to file a suit

making the necessary averment and establish to what extent and in what manner, the conduct of the defendant in installing a pump set, had infringed

or affected the rights of the plaintiff. Without such a case being specifically put forward and without the materials, being made available to the court

it is not possible to afford any relief to the plaintiff in this suit, which is merely a suit for a bare declaration in the abstract that the defendant, as a

co-owner, has no right to install a motor pump set.

This pronouncement also in my considered view supports the contention advanced by Mr. R. Tirugnanam, learned counsel appearing for the

contesting respondents.

The learned counsel for the appellant also relied upon the decision of Anantanarayan, J., in Ramachandra Gounder v. Venkatachala Gounder,

reported in 76 L.W. 464 and decision of Swamikannu, J., in Duraiswami Gounder (alias) Venkatayyan and Others Vs. Sundarammal and Others,

where the learned Judges had occasion to consider the issue whether a co-owner is bound to irrigate the lands which are attached to the well and

the co-owner could take water only consistent with the owner''s right of the plaintiff so that the defendants shall not in any event take water to

irrigate a total extent exceeding the share of the plaintiff. These two pronouncements also are of no assistance to the counsel for the appellant.

In Ayyaswami Gounder and Others Vs. Munnuswamy Gounder and Others, , the Apex Court held that right of co-owner presupposes a

bundle of rights including unrestricted user. The only restriction put by law on the common user of land by a co-owner is, that it should not be used

so as to prejudicially affect or put the other co-owner to a detriment. In these days when modern system of pumping of water is the order of the

day and when the defendants 1 and 2 want to cultivate their land by the water drawn to the extent of their half share in the well, the plaintiff cannot

impose a condition that the defendants 1 and 2 shall not employ electric motor or pump set to draw their half share. The plaintiff''s plea that the

well gets dried cannot be attributed to the installation of electric motor pump set alone, but it may be due to various natural causes including fail in

water table in the locality.

It is also to be pointed that even in these modern days, the plaintiff cannot insist that the defendants should employ only the conventional

method for taking water. Such an approach by the plaintiff cannot be appreciated and it is one of the reasons which prevails with this Court and

this Court declines to interfere with the concurrent judgment of the two courts below. As has been held by the Apex Court in Ayyaswamy

Gounder v. Munnuswamy Gounder cited supra, one co-owner is entitled to use the common well held in common ownership for irrigating his lands

or the lands attached to the well provided no prejudice is caused to the other side.

It is also not the case of the plaintiff that the defendants are trying to take water or divert water in the well for irrigating source other land which

is unconnected with the well.

In the light of the said pronouncements. It is clear that the plaintiff cannot restrain the defendants from either installing electric motor and pump

set to draw water in their turn or to the extent they are entitled. Having turned down the suggestion that the plaintiff and the defendants may draw

water on alternate day, it is rather extraordinary on the part of the plaintiff to contend that the defendant will draw more water. There is no

evidence at all to show that the defendants will be drawing more water as the defendants have to take water to the particular lands alone and not to

any adjacent lands or to supply water to any third party. By drawing water through electric motor and-pump set definitely the plaintiff will not be

prejudiced and there is nothing to show that the plaintiff will suffer prejudice.

Application of modern electric appliances like electric motor and pump set requires to the resorted to as it i s one of the facilities which an

agriculturist could use and on that score the plaintiff can not contend that the defendants are not entitled to install motor pump. It is well open to the

plaintiff also to install an electric motor pump set. If the plaintiff is willing he could file a fresh suit for fixing a rotation for drawing of water on

alternate days which would serve the purpose. In other words, the plaintiff being entitled to half share in the well, who has got half share in water

rights could regulate the drawal of water between himself and the defendants by rotation namely the parties drawing water on the alternate days. It

is not as if they are going to draw water throughout the day or continuously for 24 hours. In the foregoing circumstances, all the four questions of

law raised by the learned counsel for the appellant are not substantial questions of law and at any rate they are to be answered against the

appellant. The findings of the two courts below are concurrent and no interference is called for with respect to the concurrent findings. The courts

below rightly dismissed the suit No substantial question of law arises in these Second Appeals. Hence, both the appeals fail and they are dismissed.

No costs. Consequently, connected C.M.Ps. are also dismissed.