(1) This appeal by the defendant in a suit for a permanent injunction restraining him from taking water from the well in S. No. 299/4-B in Vellakuttai village to his field in S. No. 301/1 in the same village, involves a question of some interest and importance. The question might be-stated in essence, as the application of the appropriate legal principles of the rights of the co-owners in a common source of irrigation, to the facts. For this reason the facts themselves have to be precisely enunciated and considered, and 1 shall address myself to this task first.
(2) It is admitted that the suit well is in a separate sub-division, namely S. No. 299/4-B and that the plaintiff and the defendant each has a half right or share in this well. It is very important to note that the prior history of this matter shows that the well was irrigating a number of fields not precisely ascertained a certain part of the area now being in the undoubted ownership are possession of the plaintiff. I may also add here that the area in the possession of the plaintiff irrigable from this well is Ac. 3-35 cents. The case of the plaintiff was that the defendant was entitled to take water from the suit well only for the irrigation of S. No. 299/4-C, 299/4-A and 299/3-B, aggregating to Ac. 1-68 cents. The most striking feature of this case, which distinguishes it from the facts of Nanjappa Goundan v. Ramaswami Goundan, : AIR1951Mad459 , is that there is no specific document to show that the user of the suit well, was restricted to designated survey numbers. on the contrary all that can be gleaned from the evidence, whether oral or documentary, about the history of this well is that it is in a separate sub-division (S. No. 299/4-B) and that the-water from this well has been irrigating lands which included 8. No. 299/3-A in the possession of the plaintiff, and also probably such lands as S. Nos. 299/4-C, 299/4-A and 299/3-B. Nor can it be said that each party who owns a moiety interest in the well today, namely, the plaintiff and the defendant, derived their rights only with reference to the irrigation of specific and determined survey numbers. What happened was that subsequently the father of the defendant obtained S. No. 301/1 under Ex. A-3, and that there was a partition in, the family of the defendant evidenced by Ex. B-2 under which the defendant obtained a portion of S. No. 301/1 which was not irrigable from the well in that field. The question is, whether the defendant is entitled to take water from the suit well for irrigating part of S. No. 301/1 in his title and enjoyment, so long as the total area irrigated by the defendant from the suit well dons not exceed the extent irrigable from the well and held by the plaintiff, who is an equal sharer (A. 3.35 cents). The first court thought that the defendant had such a right, and dismissed the suit. In first appeal, the learned Additional Subordinate Judge has reversed this decision, mainly because he thought that the judgment of Satyanarayana Rao J. in : AIR1951Mad459 , enunciated a principle which barred the defendant from irrigating S. No. 301/1, or any part thereof with water from the suit well.
(3) I might at once state that, after a careful scrutiny of the facts of this case, I am convinced that it is wholly distinguishable from the facts which gave rise to the decision in : AIR1951Mad459 . Further, the principle enunciated in that decision has to he interpreted in relation to the facts of that case, and has no application to the present facts. That was a case-in which the well was situate in a particular survey number (No. 309) and there was a notional division of the well between the sharers, the history of the matter indicating beyond any possibility of doubt that the well was to irrigate S. No. 309 alone, and not any other piece of property. In other words, the principle of restriction was clearly applicable to the facts. Actually, the courts below in that case interpreted the matter differently on the assumption that the well itself was partitioned between the parties, so that one sharer could take as much water as he liked, consistent with the division of the well, to irrigate any property that he pleased. Satyanarayana Rao J. observed that there can be no physical division of the well, that the division of the well was purely notional, that the history of the matter showed beyond any doubt that the well was intended to irrigate only S. No. 309 and no other land, and hence that the water from the well could not be taken by one of the parties to irrigate S. No. 287 recently purchased by that party. The learned Judge observed,
'The rights in the well cannot be considered to be dissociated with from the land to which the well was attached.'
And again he stated that such rights were coextensive with the rights to irrigate the respective shares in S. No. 309.
(4) The facts of the present case are widely different. Here, all that can be gleaned of the previous history is that the suit well was irrigating certain survey numbers, the precise fixation of these lands being an impossible task. Nor is there any document to show haw these lands were divided between the members of the original family, or later alienated. All that we know is that the plaintiff is a half sharer and, as I have stated, he has been irrigating the lands in his possession with water from the suit well to the extent of Ac. 3-35 cents. In the absence of any definite evidence to show that he defendant should take the well water only to irrigate particular survey numbers, I am unable to see how the principle of restriction could apply to the facts of this case. All that can be stated is that the defendant could take water from the well only consistent with the equal right of the plaintiff, so that the defendant could not, in any event, take water to irrigate a total extent exceeding the share of the plaintiff. In : AIR1951Mad459 , the learned Judge refers to a prior decision of this court in Venkatarama Sastri v. Venkatanarasayya : AIR1929Mad25 . But that case has not even the remote reference to the present facts. That was a case in which the Ayacut owned by the sharers was fixed, and it was hold that-:it was not open to one of the co-sharers to divert water of the tank to lands not included in the Ayacut. That decision could be uphold upon the simple principle that the water was hardly sufficient even for the actual extent of the Ayacut, and that any extension would cause grave prejudice to the other Ayacuttdars. On this question of restricted user, we have also the decision of Chandrasekhara Aiyar J. in Ammanna v. Ramanna 1946 1 MLJ 24. But this again was a case in which specific lands were purchased by brothers with a common wag in the middle to irrigate them, and the court held that the right to use the well water was incidental or appurtenant to the ownership of these particular lends, and hence that one party could not insist on a right be take water to some other property. I am unable to see how any general proposition could he laid down that where. ever we have an irrigation well, it must be assumed that the water from the well was used only to irrigate particular lands, as an appurtenant right and that the water could not be taken to any other land. obviously, this principle of restriction would depend upon the history of the well, and the individual facts of the case. It cannot be applied to a case like the present, where the well has been acquired under circumstances that are now obscure, and-it is not at all clear which determinate lands alone were irrigable from the well. All that is, clear is that each of the two sharers (plaintiff and the defendant) is equally entitled to take water for irrigating his fields, without prejudice to the right of the other. This is therefore a case similar to Lingappa Goundan v. Ramaswami Gounden, AIR 1945 Mad 244, wherein Somayya J. held that, under those circumstances, it would be just and proper to prescribe terms and conditions upon which the well would be enjoyed.
(5) There is a different catena of decisions, relating to a distinct principle, which appears to be the true principle to be applied to the common enjoyment of a common property by co-owners. It was stated as far back as the Shanmugger Jute Factory Co. Ltd. v. Ramnarain Chatterjee, ILR 14 Cal 189 and it has been affirmed in a series of decisions of the High Courts in India. In Khimji Mulji v. Popatlal Bhanji, AIR 1951 Sau 85, the same principle was affirmed with regard to the rights of passage over a common property between co-owners. ill was held that a mandatory injunction could not issue, restraining the defendant from constructions a balcony over the common passage, in the absence of evidence of in-convenience or injury to the rights of the plaintiff. in Manilal v. Nanubbai : AIR1947Bom394 that court restricted that injunction to any extension of the balcony over the common lane, built by one of the parties beyond two feet. In Baij Nath v. Janki Prasad : AIR1930All318 , it was held that each co-owner would be entitled to reasonable user in respect of a common property. The principle was that the enjoyment should be
'without doing anything which would weaken, damage, increase or diminish the wall'
which in that case was the property in common ownership. In Bothra Bros. Ltd. v. Sm. Pramila Bala, : AIR1959Cal309 , that Court held that as between co-owners of a common passage there was no question of the passage being a servient tenement in respect of any of the co-owners' premises, and as such that no question of casement arises. In Krishnan Pillai v. Kilasathammal : AIR1928Mad810 , a learned Judge of this court observed with reference to S. 55 of the Specific Relief Act, that the balance of convenience alone should he deciding factor upon which cases of mandatory injunction should be dealt with. and that the facts of the individual case were all important. This was also a case of a common lane, anti the attempt was by one co-owner to construct a balcony projecting over the lane.
(6) 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. In his view, I cannot uphold the decision of the first appellate court, in its entirety, decreeing the suit of the plaintiff. On the contrary, I am of the view that the suit, as regards the user by the defendant of the well in S. No. 299/4-B, should be decreed only to the extent of limiting the defendant (appellant) to the user of water from the well to irrigate his lands to a total extent, whether it includes part of S. No. 301/1, or not, which does not exceed the extent now irrigated by the plaintiff. Of course, by consent of both parties, they may agree to irrigate each a larger extent of the suit well (sic). There is also another implicit condition, that the user should not weaken or cause injury to the well as a source of irrigation but each party will have a right to injunct the other, only upon proof of such weakening or injury, in appropriate proceedings. The claim to the pathway, which was also agitated in the suit is admittedly not now in controversy. The second appeal is disposed of accordingly, and the parties will bear their own costs throughout. No leave.
(7) Order accordingly.