1. This is plaintiff's second appeal directed against the appellate decree passed by the learned district, Judge, Ahmednagar in proceedings arising out of Civil Suit No. 134 of 1962, The appellant had filed a suit for declaration and injunction in respect of her right to take water of the well situate in Survey No. 246/3. According to the appellant she had 3/4 share in the well standing in survey No. 246/3. She had installed an engine at the well for irrigating the lands in her possession. While she was exercising her right to take water to the extent of her share on 28th November 1962 the defendants offered obstruction. Hence she filed the suit for declaration of her share and for permanent injunction to ensure peaceful enjoyment of her right to take water from the well. the appellant owns lands survey Nos. 246/1.' 244/- and 245/1B. According to the appellant she could irrigate all or any of these lands which were of her ownership.
2. The suit was resisted by the defendants, who are co-sharers having a share in the well. Defendant No. 1 by his written statement at Exhibit 14 resisted the plaintiff's suit on certain grounds. According to the defendant the suit well was in survey No. 246/3 and not in survey No. 246/2 But this contention is without significance as the plaintiff had subsequently amended the plaint by effecting an appropriate correction. According to the defendant the plaintiff had got only 2/3rd share in the well. Survey No. 246/2 exclusively belongs to defendant No. 1. The use of the water is restricted to survey No. 246/1. therefore the plaintiff cannot take the well water to the other two suit lands. There are some other minor contentions raised by the defendants but for the disposal of this second appeal they are not relevant. the other defendants who are also co-sharers along with defendant No. 1 by passing a purshis Exhibit 16, adopted the written statement filed by defendant No. 1.
3. The learned Civil Judge framed the relevant issues consistent with the pleading of the parties. The parties led no oral evidence and they passed a joint purshis to that effect at Exhibit 23, In other words both the plaintiff and defendants have relied only on the documents on record. The learned trial Judge came to the conclusion that the plaintiff had 3/4 share in the well standing in survey No. 246/3. she was entitled to take water of the well to her and 245/1B. Accordingly the learned Judge decreed the plaintiff's suit for declaration and permanent injunction to the extent of 3/4 share in the well.
4. The decree was challenged in appeal by the defendants. The learned appellate Judge after consideration of the contentions of the parties came to the conclusion that the plaintiff had 2/3rd share in the well but she had a right to take water from the suit well to the extent of her 2/3rd share to survey No. 246/1 only. She could draw the water with the help of an engine after turns water from the well in excess of her right. In the result the learned District Judge allowed the appeal and situation modified the decree of the trial court.
5. Mr. Hombalkar, who appears for the appellant-plaintiff, has challenged the legality of the decree mainly on the ground that the plaintiff's user of the well water cannot be restricted only to her land being survey No. 246/1, According to Mr. Hombalkar the appellate court has committed an error of law while construing the relevant documents which impose no restriction on the right of the plaintiff regarding the use of the well water. For appreciating this contention a few more facts will have to be stated. These facts are not disputed by their party. Survey No. 246/1 is of the ownership of the plaintiff, Survey No. 246/2 belongs to the defendants. The well is situate in survey No. 246/3. It appears that the original survey No. 246 measured 9 acres and 39 gunthas. Under sale-deed Exhibit 25 dated 6th January 1913, the original owner Bala Bapuji Hundekari sold the land bearing survey No. 246 to Anjanabai Vithoba Kakad. the sale-deed show that the vendor survey No. 245. Anjanabai had purchased the whole of survey No. 246 with a well in it and also the other land. On 27th July 1917 she executed a sale-deed Exhibit 24 in favour of the plaintiff's husband in respect of 3 acres and 38 gunthas in survey No. 246 The recitals of the sale-deed show that the vendor had sold half the share in the well to the plaintiff. In other words,. the vendor roughly sold half the share in survey No. 246 along with one half share in the suit well. It is not clear how the defendants came to acquire survey No. 246/2 measuring 2 acres and 17 gunthas. The learned appellate Judge after consideration of the recitals of the contents of the decrees in the earlier litigation has recorded a finding that the well is situate in survey No. 246/3. The learned appellate judge has not recorded a clear-cut finding about the extent of the acreage of survey No. 246/3. But the plaint allegation that survey No. 246/3 measures 7 gunthas is not seriously disputed by the defendants. The learned judge has found, after consideration of the above material, that the plaintiff had proved her title to the suit well to the extent of 2/3rd share and not 34 share. Mr. Hombalkar for the appellant has not challenged this finding before me. The only dispute which will survive for consideration is whether the plaintiff had the right to irrigate her other two lands apart from survey No. 246/1.
6. Mr. Hombalkar in support of his case that the plaintiff had the right to use the water of the well in such manner as she like has strongly relied upon a decision of the Madras High Court reported in : AIR1962Mad498 . Ramchandra gounder V. Venkatachala Mr. Apte on behalf of the respondents relies on the ratio of another decision of the Madras High Court reported in : AIR1951Mad459 . Nanjappa Goundan v. Peria Ramaswamy and also a decision of Vaidya, J., In second Appeal No. 934 of 1965 decided on 10-10-1972 (Bom). It will be necessary to consider these decisions before I make up my mind about the merits of this case.
7. In : AIR1951Mad459 the dispute was about the user of the water of a well comprised in a certain survey number. The plaintiff had asked for an injunction restraining the defendant from taking water from the well in survey No. 309 to their field in survey No. 287. As a result of a partition dated 9-2-1927 between the predecessors -in-title of the plaintiff and the defendants it was agreed that the water of the well should be enjoyed in equal shares by the parties. One party was to draw water from the southern side of the well and the other from the northern side. The well and the survey number were divided into two parts and the division in the case of the well was notional as there was no physical division of the water of the well. Relying on this arrangement, the learned Judge found that the well was intended for the use of survey No. 309 and it was intimately connected with the ownership of that property. The learned Judge satyanarayana Rao, J., made the following observations which would indicate the ratio of the decision:-
'The arrangement is restricted, in my opinion by the partition deed to the taking of the water to S. No. 309 as they were doing all along till the date of the partition. The rights in the well cannot be considered to be dissociated from the land to which the well was attached. The rights of the parties to the water in the well have to be measured and are co-extensive with the rights to irrigate the respective sharers in S. No. 309. They cannot be permitted to increase the user and any diversion of the water of the well for irrigation lands other than S. No. 309 would be an infringement of the right of the party by the other.'
While relying on this decision Mr. Apte for the respondents also sought some support from the earlier decision of the Madras High court in : AIR1929Mad25 , Venkatarama Sastri v. Venkatanarasayya. The learned Judge satyanarayana, J. had followed the principle enunciated in the above mentioned earlier decision.
8. In : AIR1929Mad25 the Division Bench was considering a somewhat similar point which arose in a second appeal. Several co-sharers of an agraharam were entitled to the water of a tank in the same proportion which they owned land in the agraharam. It is not possible to understand the precise expression 'agraharam'. But it appears that the reference was to an estate or extent of land. It was customary from time immemorial to use the water of the tank for cultivating certain area of land described as the wet ayacut under the tank, The water of the tank was not even sufficient for the wet ayacut. One of the co-sharers used the water of the tank to convert spume of his dry land in to wet land, and thereby caused damage to the other co-sharers. The other co-sharers sued for injunction as well as damages. The division Bench held that from time immemorial there was an implied agreement that the water of the tank was to be used for the wet ayacut only. From the fact that the water was owned proportionately to the land it does not follow that the ownership of the water was independent of the ownership of the land. the use of water for land other than the wet ayacut was alleged. The plaintiffs co-sharers were awarded damages and their suit for injunction was decreed against the defendant.
9. Mr. Hombalkar submits that the correct position in law is properly stated in a recent decision of the Madras High Court reported in : AIR1962Mad498 . Anantanarayanan. J., who decided the second appeal, considered the earlier decisions of the Madras High Court including the two cases mentioned above. The dispute was again about the use of water of a well by the several co-sharers. The learned Judge has distinguished the decision of the Madras High Court in : AIR1951Mad459 on the ground that there was no document or agreement providing for the division of the land and the shares in the well. How the original lands were divided between the members of the original family or later on alienated was lost in obscurity. plaintiff had half share in the well. The learned judge, therefore, came to the conclusion that it was not possible to come to the conclusion that the defendant could take the well water only to irrigate a irrigate a particular survey number. It appears that the defendant had also one half share in the well. It was held that defendant could take water from the well only consistent with the equal right of the plaintiff so that defendant could not in anv event take water to irrigate a total extent exceeding the share of the plaintiff. The learned Judge also referred to a different catena of decisions relating to a distinct principle which, according to the learned judge, applied to the common enjoyment of a common property by co-owners. He held that each co-owner would be entitled to a reasonable user in respect of the common enjoyment of a common property. His following observations would sum of up his conclusions in that case:
'These authorities make it clear that the principle of restriction of the user to particular properties alone, can only be applied where the history of the property owned in common shows that the user was so determined from the very inception. Where this principle is inapplicable on the facts, the true applicable principle is that, as between co-owners, each is entitled to enjoy the facility of the common property without detriment to the enjoyment of the other, and so long as the property itself suffers no injury. Weakening or loss.
10 Mr. apte has drawn my attention to the relevant observation of Vaidya, J., in second appeal No. 934 of 1965, decided on 10-10-1972 (Bom). The learned Judge has referred to the above mentioned decisions while considering the plaintiffs case that they had 1/3 share in the suit well and that they had an unrestricted right to take water from that well. Mr. Apte rightly relies on the concluding observations of Vaidya, J., which are to the following effect:
'It is thus clear that a co-sharers cannot ask for more water than he used to take fro a common well without the consent of the other co-sharers. It is also clear that where the use of the water is restricted in respect of certain lands and the well is linked to the land, a co-sharer cannot claim water for any other land.'
In my opinion in such cases there cannot be a hard and fast rule. Which would regulate the rights of co-sharers in respect of a common well. As the facts of the various decisions mentioned above show, there cannot be one rule applicable to each and every such case. If it is a matter of agreement between the parties, then certainly that agreement must be adhered to. When there is immemorial user and sort of customary right is established, then also the courts will have to give due importance to such immemorial user while deciding the conflicting claims of the co-sharers to the common well. in my opinion the facts of the present case pose a somewhat different problem.
11. I have already referred to the two sale-deed Exhibits 25 and 24 while mentioning the undisputed facts. The learned Appellate Judge, relying on the recitals of Exhibit 24, has held that there is a specific condition in the sale-deed that half share in the well was sold to the plaintiff's husband and not 3/4 share but that must be only about the extent of the vender's share in the well at that time. as a result of subsequent acquisition, the plaintiff's share was increased to 2/3 rds. But relying on these words the learned judge finds that only a portion of survey No. 246 was sold along with the right to take water from the well. in such a case the vendee cannot divert the use of the water to any other land contrary to the terms of the saledeed. Mr. Apte is not in a position to rely on any particular words in the saledeed. which would spell out such restriction on the user of the well water. His only submission is that the whole land survey No. 246 vested in now owner once upon a time. The owner must be using the well water for irrigating the original survey number. Persons who acquired a share in a portion of the land and a share in the well must accordingly use the water for that land only. In the absence of any express terms in the sale deed or other evidence of immemorial user. I do not find it possible to hold that the co-sharer's right should restricted, in any manner so long as the co-sharer does not exceed the enjoyment of his share. In the common well, In the present case the plaintiff owns about 7 acres and 12 gunthas from survey No. 246. Defendant's land survey No. 246/2 measures 2 acres and 17 gunthas. the well is situate in the land survey No. 246/3 measuring about 7 gunthas. If the relative acreage is considered, then the defendants can irrigate some more acreage by drawing water from the well to the extent of their 1/3 share. It would be unreasonable to compel the defendants to restrict the use of the well water to the extent of 1/3 share only to a small acreage like 2 acres and 17 gunthas. The plaintiff has a larger a crease in survey no. 246. There is no reason why the plaintiff should be compelled to use the water of the common well only for irrigating her portion of the land in survey No.246. But in my opinion consistent with the right of the co-sharers against each other some restriction must be imposed on the right of the plaintiff while taking water from the common well. the plaintiff has right to take water from the well to the extent of 2/3 share for irrigating any of her lands provided the acreage irrigated does not exceed 7 acres and 12 gunthas. It may be that the plaintiff wants to irrigate 7 acres and 12 gunthas from survey No. 246 or she may irrigate her other lands provided the area so irrigated does not exceed 7 acres and 12 gunthas. In the same any the defendants would be entitled to draw water from the well to the extent of 1/3 share for irrigating their portion of survey No. 246 or any other land provided the area irrigated does not exceed 2 acrea and 17 gunthas. In my opinion such a restriction is necessary for protecting or safeguarding the rights of one co-sharer against the other.
12. Mr. Apte on behalf of the respondent raised a preliminary objection that the appeal abates as a whole and. therefore, the merits of the plaintiff's case against the other surviving defendants cannot be considered.
13. It appears that during the pendency of this appeal defendant No. 1 died. plaintiff had not taken any action for bringing the heirs of defendant No. 1 on record. Mr. Apte, therefore, submitted that this was a suit against several co-sharers. The decree in favour of Defendant No. 1 cannot be confirmed unless the appeal is dismissed on the ground of abatement. Otherwise there will be conflicting decrees one in favour of the plaintiff and the other in favour of the legal representatives of defendant No. 1.
14. It appears that defendants I to 4 belong to the same family as they are the sons of Pandurang Ilag. Defendant No.5 is a stranger. All these defendants together have 1/3 share in the suit well. As the parties, i.e. the defendants 1 to 4 belong to a Hindu family. there is a presumption that it is a joint family. There is nothing on the record to show that there was any partition or severance of status in this family. Even after the death of defendant No. 1 the estate is effectively represented by the other members of the joint family. It, therefore, follows that after the death of defendant No. 1 the appeal against the other defendants did not abate. There is no substance in the objection raised by Mr. Apte.
15. In the result the appeal is allowed. The decrees passed by the lower appellate Court and the trail Court are both set aside. A decree for declaration of the plaintiff's right and defendants from interfering with her right of taking water from the suit well will be drawn up consistent with the findings made by me above. There will be no order as to costs throughout.
16. Appeal allowed.