S. Swamikkannu, J.
1. An interesting point has been raised in this appeal whether with respect to the water available in a well which is situated in S. No. 390 -3 and its irrigational potentialities had been considered in favour of the appellant herein there can be a restriction to the extent to which that water in the well cart be made use of.
2. It is common ground that S. No. 392 belongs to the plaintiff which is known as Rangappa flowder's land and which is also shown in yellow colour in the Commissioner's plan. The defendant's land has been coloured with green pencil-S. No. 390/1 belongs to one Krishnappa Gowder and it is known as Krishnappa Gowder's land under the cultivation of the plaintiffs. The rough plan of the Commissioner shows the existence of this well, water of which is available for cultivation. It is with respect to the land beyond the line F.I. marked in the Commissioner's plan on the eastern side that there is a dispute now. The case of the appellant is that when once it has been held that the water available in the well in question can be utilised for irrigational purposes by the appellant, there is no question of any restriction prescribed for its extension to the land to which the water in it can be utilised either by baling out the water by way of installing an electric motor or by way of a country picots. It is relevant in this connection to note that the rough plan Exhibit C-2 is self-explanatory and as such needs no further elucidation. As a matter of fact the suit itself was laid before the trial Court for the declaration that the plaintiffs are entitled to take water from the suit well to irrigate S. No. 392 and for consequential injunction-The trial Court held that the defendants cannot obstruct the plaintiffs from using the motor in service connection No. 64 to irrigate the eastern portion of S. No. 392 also by the suit well. It has also held that the first plaintiff will not be entitled to irrigate S. No. 392 through service connection No. 65.
3. Of course no order can be pronounced by any Court of law against any statute law which has got existence on statute book. Still relating to the distribution of electric power and therefore when it is the case of either side that an electric motor had been installed in the well in question and the parties to the suit are taking water from it in pursuance of the regulations of the Department viz., the Electricity Board in turn is also governed by the provisions of the Act relating to the same.
4. Now reverting back to the point in issue before this Court which has been framed as a substantial question of law which can be usefully extracted now at this stage viz., whether the right to take water from the well to irrigate a particular land can be lost by non-user for any length of time. It is relevant to note that the evidence available on record are Exhibit A-l to A-61 together with the evidence of the first plaintiff as P.W. 1 and one Perumalsamy as P.W. 2 on behalf of the plaintiffs and on behalf of the defendants the first defendant Sundarammal examined herself as D.W. 1 filing no documents on her side. It is relevant to note that a Commissioner had been appointed in this case and the report and plan of the Commissioner are Exhibits C-l and C-2. As already stated the well is situated in S. No. 390-3. It is in the portion wherein groundnut and thuvarai are cultivated. That is the portion wherein it is now desired by other side viz., the respondent in this Appeal that there should not be any supply of water from the well.
5. Mr. G.M. Nathan, learned Counsel for the appellant contends that though the question of law as framed at the time of admission of the second appeal is not having in its view the present point that is raised but yet by means of the proviso to Section 100 of the Code of Civil Procedure this Court has got every liberty to discuss the point raised because it is really a substantial question of law which requires determination in the second appeal as contemplated under the provisions of Section 100 of the Code of Civil Procedure.
6. Section 100 of the Code of Civil Procedure reads as follows:
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex pane.
(3) In an appeal under the section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question,
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case-does not involve such question : Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
7. The proviso to Section 100 of the Code of Civil Procedure which is absolutely clear that not only the point that is framed at the time of admission of a second appeal that can be taken up for discussion while disposing of the second appeal but even points that arise during the course of arguments and as a matter of fact even some points which occur to the Courts on going through the records can also be taken for discussion because it is a point of law. Under the circumstances I upheld the contention of Mr. G. M. Nathan viz., that when once a right has been conceded with respect to an easementary right that is claimed by a party in a suit, the party which has conceded that right cannot restrict the extent to which that easementary right can be exercised. Absolutely no one can have any kind of objection for upholding this contention because it is nothing but a rule of law-As a matter of fact this rule of law which also possesses the character of the principle of equity has been embedded by Ananthanarayanan, J. as he then was, in Ramachandra v. Venkatachala : AIR1962Mad498
8. The decision in Ramachandra v. Vcnkatachala : AIR1962Mad498 lays down that the principle of restriction of the user is to particular property alone, and whether the said kind of restriction applied where the history of the property owned in common showed that the user was so determined from the very inception was the question that was discussed in that case. It was held in the said decision that where this principle is inapplicable on facts, the principle applicable is that, as between co-owners, each is entitled to use 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.
9. As a matter of fact in the decision Cited by Mr. C.M. Nathan viz, Ramachandra v. Venkatachala : AIR1962Mad498 . Ananthanaraynan, J. as he then was comprehensively dealt with the case law as the subject and as a matter of fact incorporated in his judgment the following decisions which are really enlightening as to the law on the subject:- Baij Nath v. Jnnki Prasaa : AIR1930All318 ; Mani. lal v. Nanubhai : AIR1947Bom394 Shamnugger Jute Factory Co., Ltd. v. Ram Narain Chatterjee I.L.R.(1886) Cal. 189 ; Bothra Bros v. S.M Pramila Bala : AIR1959Cal309 ; Krishnan Pillai v. Kilasathammal : AIR1928Mad810 ; Venkatarama Sastri v. Venkatanarasayya : AIR1929Mad25 ; Lingappa Gounder v. Ramaswami Goundan : AIR1945Mad244 ; Ammani v. Ramanna (1946) 1 M.L.J. 24. Nanjappa Goundan v. Ramaswawi Goundan : AIR1951Mad459 Khimji Mulji v. popatlal Bhanji (1951) 4 Sau. L.R. 213 : A.I.R 1951 Sau. 85 In Ramachandra v. Venkatachala : AIR1962Mad498 the plaintiff and the defendant had each equal right or share in an irrigation well, which according to its prior history was irrigating a number of fields not precisely ascertained. It was held that the principle, of restriction of the user to particular properties alone cannot apply. It was held further 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 (whether it included or not any new land which was rot being formerly irrigated from the well), which does not exceed the share irrigated by the plaintiff. It was also held that by consent of both the parties, they agreed to irrigate each a larger extent and that there was also another implicit condition that, the user should not weaken or cause injury in appropriation proceedings.
10. The law has been laid down consistently in the above decision and as such there is nothing more which remains for this Court to further lay down any principle of irrigation of the lands that are lying adjoining the land where the well is situated. In the instant case as already stated, the suit was decreed by the trial Court declaring that the plaintiffs are entitled to take water from the well in S. No. 390-3 to the entire S. No. 392 through S.C No. 65 and restraining the defendants by a permanent injunction from interfering with the said right with costs.
11. Aggrieved by the above decision, the defendants took the matter on appeal which was decided by the learned I Additional Subordinate Judge, Coimbatore on 16th September, 1976, together with me cross-objections that were preferred and he held on the point No. 1, niz., whether the entire extent of S. No. 392 is entitled to be irrigated from the suit well in S. No. 390-3 that the learned District Munsif was wrong in holding that the entire extent of S. No. 392 was entitled to be irrigated from the suit well. The learned first Additional Sub-ordinate Judge also held on point No. 2, that the first plaintiff will be entitled to irrigate the western portion of S. No. 392 by the motor in S.C. No. 65 during his turn.
12. Applying the ratio decidendi of Ramachandra Gounder v. Venkatachala Gounder I.L.R. : AIR1962Mad498 it is needless to hold that the decision of the learned appellate Court in so far as the decision arrived at by it under point No. 1 has to be reversed and is hereby reversed. The appellants Plaintiffs are entitled to irrigate the entire S. No. 392 of course subject to availability of water in the well in question. The same can be a matter for mutual arrangement and adjustment between the parties. Under these circumstances, this Court has got every facility to get the principles incorporated as ratio decidendi in Ramachandra Gounder v. Venkatachala Gounder : AIR1962Mad498 and squarely applying the same to the facts of this case and allow this appeal holding the very same ratio as the answer to the substantial question of law arising in this discussion during the disposal of the second appeal as far as the decision given by the lower appellate Court that the first plaintiff will be entitled to irrigate the western portion of S. No. 392 by the motor in S.C. No. 65 during his turn is concerned, this Court has to hold that inasmuch as this appeal is being allowed the entire extent of S. No. 392 shall be irrigated with the help of the water available in the well in service connection No. 65 during his turn. An order is made accordingly. Under the circumstances, there is no order as to costs.