Skip to content


Nanjappa Goundan Vs. Peria Ramaswami Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2091 of 1947
Judge
Reported inAIR1951Mad459; (1951)IIMLJ343
AppellantNanjappa Goundan
RespondentPeria Ramaswami Goundan and ors.
Appellant AdvocateC.S. Swaminathan, Adv.
Respondent AdvocateK.V. Ramachandra Iyer, Adv.
DispositionAppeal allowed
Cases ReferredVenkatarama Sastri v. Venkatanarasayya
Excerpt:
.....by reason of the terms of the deed of partition itself, that the parties intended to restrict the user of the water of the well to the land comprised in s. and they being co-sharers of the well, it is not open to one such co-sharer to use the water of the well for other lands than those comprised in s. in a case relating to a well the decision in which however is not reported :vide s. 1640 of 1948. i respectfully adopt the reasoning of the learned judge in that case, the facts of which are similar to the facts of the present case, and for the reasons mentioned in that judgment as well as for the reasons given by me in this judgment, i am of opinion that the decrees of the courts below dismissing the plaintiff's suit should be set aside and that the plaintiff should be given a decree in..........been purchased and which was adjacent to s. no. 309. the plaintiff naturally objected to the user of the water for land outside s. no. 309. the suit was dismissed by the courts below on what appears to me to be a wrong view of the respective rights of the parties to the water of the well. they seem to proceed on the assumption that the partition evidenced by the partition deed of 1927 was a complete partition of the water of the well which in the nature of things it is impossible to effect and any construction of a well in the middle of the well so as to give each sharer a half portion of the well would practically constitute one well into two wells. if the spring in the well is on one side, there will be no water on the other side of the well. the arrangement is restricted, in my.....
Judgment:

Satyanarayana Rao, J.

1. The plaintiff is the appellant in this second appeal and his suit for a permanent injunction restraining the defendants from taking water from the well in S. No. 309 in Naranapuram village to their field in S. No. 287 of the same village was dismissed by both the Courts below. Hence this second appeal.

2. The dispute relates to the use of the water of the well which is admittedly situate in S. No. 309. There was a partition arrangement of 9-2-1927 between the predecessors-in-title of the plaintiff and the defendants respectively under which it was arranged that thewater of the 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 schedule to the partition deed contains the description of the shares allotted to the respective parties in S. No. 309 and from that it will be seen that the well and the survey number were practically divided into two parts, the division in the case of the well being merely notional as there could be no physical division of the water of the well. The description makes it clear that the well was intended for the use of S. No. 309 and it is intimately connected with the ownership of that property. One party was entitled to take water for his use from the southern portion of the well and the other from the northern portion. The attempt of the defendants which necessitated the filing of the suit by the plaintiff was to take the water of the well to S. No. 287 which had recently been purchased and which was adjacent to S. No. 309. The plaintiff naturally objected to the user of the water for land outside S. No. 309. The suit was dismissed by the Courts below on what appears to me to be a wrong view of the respective rights of the parties to the water of the well. They seem to proceed on the assumption that the partition evidenced by the partition deed of 1927 was a complete partition of the water of the well which in the nature of things it is impossible to effect and any construction of a well in the middle of the well so as to give each sharer a half portion of the well would practically constitute one well into two wells. If the spring in the well is on one side, there will be no water on the other side of the well. 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 irrigating lands other than S. No. 809 would be an infringement of the right of the party by the other. The principle of the decision in Venkata-rama Sastri v. Venkatanarasayya : AIR1929Mad25 though it related to a tank owned by co-sharers, equally applies to the present case which is concerned with a well. In the case in Venkatarama Sastri v. Venkatanarasayya : AIR1929Mad25 the ayacut which was ownedby the co-sharers was fixed and it was held that it was not open to one of the co-sharers to divert the water of the tank to lands not included in the ayacut. By the accustomed user of the water for the lands under ayacut, it is a legitimate inference to draw that the right to the water is intimately connected with the ownership of the lands comprised in the ayacut and the co-sharer's right to the water is proportionate to the extent of the ayacut owned by him. In the same manner it must be presumed by reason of the user both before and after the partition and by reason of the terms of the deed of partition itself, that the parties intended to restrict the user of the water of the well to the land comprised in S. No. 309 and no more; and they being co-sharers of the well, it is not open to one such co-sharer to use the water of the well for other lands than those comprised in S. No. 309. The same principle was adopted and applied by Chandrasekhara Aiyar J. in a case relating to a well the decision in which however is not reported : vide S. A. No. 1640 of 1948. I respectfully adopt the reasoning of the learned Judge in that case, the facts of which are similar to the facts of the present case, and for the reasons mentioned in that judgment as well as for the reasons given by me in this judgment, I am of opinion that the decrees of the Courts below dismissing the plaintiff's suit should be set aside and that the plaintiff should be given a decree in his favour for a permanent injunction restraining the defendants from taking water from the well in S. No. 309 in Naranapuram village to other survey numbers in the same village. The plaintiff will therefore be entitled to a decree as prayed for. The second appeal is allowed with costs throughout.

3. Leave to appeal is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //