1. This is a second appeal from a decision of the Subordinate Judge of Meerut, confirming the decree of the trial Court. The plaintiff-respondent had sued for a declaration that he was the owner of a 1/5th share in a well, and the evidence showed that the plot in which the well stood had been allotted at a partition in 1915 to the defendant appellant. The trial Court gave the plaintiff a declaration to the effect that he was a co-sharer in the well to the extent of 1/5th and that his status was that of a licensee. The lower appellate Court did in effect modify this order by finding that the position of the plaintiff was that of a licensee and that he was entitled to irrigate the fields on one day in every five days of the week, but did not come to any finding as to the ownership of the well. Nevertheless it dismissed the appeal and it must be held to have intended to confirm the decision of the trial Court.
2. As regards the ownership of the well there can be no doubt, as has been pointed out by Mr. Panna Lal, that under Section 120 of the Land Revenue Act 1901, it had to be considered as attached to the land for the benefit of which it was made and the decision in the partition proceedings was that the well was to be the property of the defendant. Under Section 233-K, Land Revenue Act this decision is final. It was however decided in those proceedings on the application of the plaintiff that the irrigation was to continue as before, and the Courts have found that as the plaintiff had met 1/5th of the cost of the well, he had been irrigating on every 5th day and therefore he had a right as licensee under the terms of the partition proceedings to continue irrigation in the same way, viz., by irrigating his fields on every fifth day. It has been pointed out by Mr. Panna Lal that the plaint itself does not lay any claim to a right of irrigation, but it does claim a right in the well itself. There is no reason, however, why if the Courts are not in a position to grant the whole of the relief they should not grant part of it, that is to say, even if they are compelled to refuse a declaration of the plaintiff's title to the ownership of the well, they may nevertheless declare his right to use the well by irrigating his fields from it. To this extent, therefore, I think that the decision of the lower appellate Court is correct.
3. The appellant has appealed against the decision granting a declaration of ownership in the well and also against the declaration of a right to irrigation. He succeeds on the first plea but fails on the second. The result is that I allow the appeal to this extent and modify the decree and order of the lower appellate Court by dismissing the claim to a declaration of ownership in the well, but I confirm that part of the order which allows a declaration as to the right to irrigation. The parties will bear their own costs throughout.