N.G. Chandavarkar, J.
1. This was a suit brought by the appellant for a declaration of his right to use the water of a well jointly with the respondent and for an injunction to restrain the latter from obstructing the appellant in the exercise of his right. The respondent in his written statement denied the appellant's claim and asserted his exclusive right to the well. The Subordinate Judge, who tried the cause, found upon the evidence that the well had at one time been attached to two houses owned by two brothers constituting a joint Hindu family and that they effected a partition of the houses: that, some time after ' that, one brother sold the house allotted to him at the partition to the appellant and the other sold his to the respondent. These facts are admitted by both parties before us and have also been found by the District Judge, from whose decree this second appeal is preferred. As the two brothers had only one well, that is, the one now in dispute, which they jointly used as owners before the partition, the Subordinate Judge thought that it was ' likely' that at the partition they had reserved it as joint. Accordingly he awarded the appellant's claim. On appeal by the respondent, the District Judge held that what the Subordinate Judge had treated as a matter of likelihood was ' a mere surmise' not supported by any evidence in the case. He, therefore, reversed the Subordinate Judge's decree and disallowed the appellant's claim.
2. Both the Courts below have not borne in mind the rule of Hindu law applicable to the present case. What the Subordinate Judge treated as a matter of probability and the District Judge as a mere surmise is dealt with by that law as a matter of legal presumption. The rule is that rights to water and wells belonging to a joint family are indivisible, if they are numerically unequal, and that after a partition these must be enjoyed by the separated coparceners by turns. 'Water, or a reservoir of it, as a well or the like, being unequal (to the allotment of shares) must not be distributed by means of the value; but is to be used (by the co-heirs) by turns.' (The Mitakshara, Ch. I, Section IV., place. 2; Stokes' Hindu Law Books). The Vyavahara-Mayukha is also to the same effect. ' Water from wells which have flights of steps and wells from which it is drawn by buckets &c.; is (to be) enjoyed according to need.' (Mandlik's Hindu Law, page 71, lines 34 to 36). The Viramitrodaya says that ' water, that is, a reservior of water, such as a well, shall be used by all accordingly as they' (1. e.) (the coparceners after partition) ' require.' (Golap Chandra Sarkar's Edition, page 249). ' When it is laid down that a well is ' indivisible'' (avibhajyam) what is meant is that ' it cannot be distributed like land or money. But the ownership admits of a mental division to which effect is given by an agreement to use the physically undivided thing in turns.' (West and Buhler. 3rd
3. The appellant in the present case starts with this rule of Hindu law in his favour on the facts which are common ground; and his claim must be awarded unless the respondent is able to prove by affirmative evidence that the right to own and use the well jointly has been lost by the appellant, either because of an express agreement at the partition whereby his predecessor title relinquished that right in favour of his brother, or because of his or the appellant's exclusion to his knowledge by the latter or the respondent for such a period as' in law is necessary to give the latter a right to the well by adverse possession. No plea based on adverse possession was set up by the respondent in the Court of first instance. Therefore the only question is whether the respondent's predecessor-in-title acquired by express agreement an exclusive right to the well at the partition. We must ask the lower appellate Court to find on the following issue:-
4. Whether the well in dispute was allotted at the partition to the person from whom the defendant derived his title.
5. The onus of this issue will lie in the first instance on the defendant. The lower appellate Court should record its finding on the evidence on the record and parties are not to be allowed to adduce fresh evidence. Finding to be remitted within two months.