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Karuppusami Gounder Vs. Palaniswami Gounder - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1979)1MLJ423
AppellantKaruppusami Gounder
RespondentPalaniswami Gounder
Cases ReferredVenkatarama Sastri v. Venkatanarasayva
Excerpt:
- .....effected between the three brothers under exhibit a-2, dated 26th september, 1970, they left a common pathway in s. no. 880. at that time, the plaintiff was the owner of s. no. 867 which adjoins the pathway kept in common by the three brothers who got s. no. 680 divided leaving a common pathway for reaching their respective shares. subsequently, the plaintiff purchased periaswami's share in s. no. 880 with the pathway right from periaswami's son velusami under exhibit a-1 dated 12th june, 1970 and he was enjoying the right. the plaintiff claimed the right to enjoy the pathway right to reach s. no. 867. this was objected to by the defendant. it is under these circumstances, the plaintiff filed the suit far a permanent injunction restraining the defendant from interfering with his.....
Judgment:

A. Varadarajan, J.

1. The defendant, who had succeeded in the trial Court, but lost before the lower appellate Court, is the appellant. The respondent-plaintiff filed a suit for permanent injunction restraining the defendant from interfering with his right to use the suit pathway lying in S. No. 880 in Nilai Village in Dharapuram taluk for reaching the adjoining S. No. 867 of the same village. It is common ground that S. No. 880 belonged originally to the joint family of the defendant and his two brothers Periaswami and Rakkianna. In the partition effected between the three brothers under Exhibit A-2, dated 26th September, 1970, they left a common pathway in S. No. 880. At that time, the plaintiff was the owner of S. No. 867 which adjoins the pathway kept in common by the three brothers who got S. No. 680 divided leaving a common pathway for reaching their respective shares. Subsequently, the plaintiff purchased Periaswami's share in S. No. 880 with the pathway right from Periaswami's son Velusami under Exhibit A-1 dated 12th June, 1970 and he was enjoying the right. The plaintiff claimed the right to enjoy the pathway right to reach S. No. 867. This was objected to by the defendant. It is under these circumstances, the plaintiff filed the suit far a permanent injunction restraining the defendant from interfering with his right to use the pathway for reaching S. No. 867.

2. The defence was that the plaintiff was entitled to use the pathway only for reaching his share in S. No. 880 and he is not entitled to use the pathway for reaching some other land bearing S. No. 867 and the plaintiff is, therefore, not entitled to the permanent injunction.

3. The trial Court found that the plaintiff is not entitled to use the pathway kept in common in S. No. 880 by the three brothers who are parties to the partition deed, Exhibit A-2 for reaching some other land, namely, S. No. 867 and it dismissed the suit with costs. But on appeal, the learned Additional Subordinate Judge held, following the decision of Palaniswamy, J. in Subbiah Goundan v. Ramaswawy Goundan : AIR1973Mad42 , that the plaintiff it entitled to use the common pathway for reaching S. No. 867 and ha, accordingly allowed the appeal with costs and decreed the suit as prayed for with costs.

4. The learned Counsel for the defendant reiterated that the plaintiff is not entitled to use the pathway kept in common in S. No. 880 by the three brothers who are parties to the partition under Exhibit A-2, for reaching S. No. 867 merely on the ground that he had purchased the right of one of the three brothers from the son of the brother together with the right in the common pathway which is stated to be 15 links in breadth. On the other hand, the learned Counsel for the plaintiff relied upon the very same decision of Palaniswamy, J. and submitted that so long as it is not shown that the defendant is affected by the plaintiff using the pathway for reaching S. No. 867 also, he is not entitled to interfere with the use of the common pathway by the co-owner. The observations of Palaniswamy, J., as extracted in the judgment of the learned Subordinate Judge, are:

If he happens to acquire a new land adjacent to his share and if that land can be approached through the common pathway, he cannot be prevented from using the common pathway, provided his user of the common pathway does not interfere with the rights of the other co-owner in the common pathway. Similar instances are such as setting apart common pathway, for use as thrashing floor or common passage in buildings. A co-owner of a common passage in a building can use such passage, not only to reach his portion which he got under the partition; but also to reach any addition, which he may put or any accretion which he may make adjacent to his property, provided his user or the common passage does not interfere with the user thereof by the other co-owners, likewise, the common owner of the thrashing floor can use it not only for thrashing the paddy got from the land which he got for his share in the partition, but also for thrashing the paddy which he may get from a land which he may acquire subsequently. Such user so long as it does not interfere with the use by the other co-owner, cannot be objected to by the other co-owners. It would be most unreasonable to say that the paddy got by the co-owner from the land which fell to his share in the partition should alone be thrashed in the common thrashing floor.

Palaniswamy, J., has referred to the decision of Ramamurti, J. in Katuppa Gounder v. Muthuswamy Gounder : (1968)1MLJ397 , in which reference has been made to the decision of a Bench of this Court in Venkatarama Sastri v. Venkatanarasayya : AIR1929Mad25 . In this decision, Ramamurti, J., on a review of the case-law, held that when a well or some source of irrigation irrigates land belonging to several persons, the source of irrigation cannot be divorced or dissociated from the lands and that irrespective of the question or damage, the plaintiff, one co-owner would be entitled to an injunction to restrain another co-owner from using the well to irrigate some other land, on the simple ground that the defendant has no right to use the water for irrigating other lands. Ramamurti, J., has pointed out in his decision the uniform trend of decisions of this Court not to permit the co-owner to irrigate any land newly acquired by him. In Venkatarama Sastri v. Venkatanarasayya : AIR1929Mad25 , the defendants attempted to take water from the tank to convert their dry lands in the village into wet lands by using the tank water. The plaintiffs, the common owners of the tank, prayed for an injunction to restrain the defendants from using the water, for that purpose. Though, in that case, the plaintiffs had proved that they had suffered damage on account of such use of water by the defendants, the Bench held that the plaintiffs would be entitled to an injunction even if no damage had been proved and in that view, the plaintiffs were entitled to an injunction on the principle that the right to the water in the well is co-extensive with the right to irrigate a particular land and the right in the well is inseparably connected with the land. Palaniswamy, J., has observed in his judgment:

A co-owner of a common passage in a building can use such passage not only to reach his portion he got under the partition but also to reach any addition which he may put or any accretion which he may make adjacent to his property, provided his user of the common passage does not interfere with the user thereof by the other co-owners. Likewise the common owner of a thrashing floor can use it not only for thrashing the paddy got from the land which he got for his share in the partition, but also for thrashing the paddy which he may get from a land which he may acquire subsequently. Such user, so long as it does not interfere with the use by the other co-owners, cannot be objected to by the other co-owners. It would be most unreasonable to say that the paddy got by the co-owner from the land which fell to his share in the partition should alone be thrashed in the common thrashing floor. Cases of extension of balcony over a common passage also stand on the same footing. The principle underlying the enjoyment of common property is that one co-owner can use the common property to his maximum advantage, subject of course to the rights of the other co-owner not being in any way materially interfered with and without damaging or weakening the common property.

With respect, what all Palaniswamy, J., has stated would apply to cases of enjoying the common right with reference to the property for the enjoyment of which that right has been reserved in common. Palaniswamy, J., has not stated in his judgment how the decision of Ramamurthi, J., in Karuppa Gounder v. Muthuswami Gounder : (1968)1MLJ397 in which a Bench decision of this Court in Venkatarama Sastri v. Venkatanarasayya : AIR1929Mad25 was followed, will not apply to the facts of the present case. In those decisions, it has been held that a co-owner of a well intended to irrigate particular lands is not entitled to take his share of water in the well for irrigating some other lands. In my opinion, that principle would apply even to a common pathway right reserved for enjoying a particular land and it would not be open to One of the co-owners of the common right to enjoy that right for reaching some other land. In view of the fact that the principle laid down in the Bench decision of this Court has been followed by Ramamurthi, J., in Karuppa Gounder v. Muthusami Gounder : (1968)1MLJ397 , namely Venkatarama Sastri v. Venkatanarasayya : AIR1929Mad25 , it is not possible to agree with the learned Counsel for the plaintiff that this case should be referred to a Bench in view of the view taken by Palaniswamy, J., in Subbiah Gounder v. Ramaswamy Gounder : AIR1973Mad42 . Following the principle laid down in the Bench decision in Venkatarama Sastri v. Venkatanarasayva : AIR1929Mad25 , I hold that it is not open to the plaintiff to use the common pathway in the present case reserved for the enjoyment of S. No. 880, to reach some other land, namely, S. No. 867 which belonged to the plaintiff and not to any of the three brothers at the time of partition between those three brothers under Exhibit A-2 on 26th September, 1960. Accordingly, the second appeal is allowed with costs throughout and the suit is dismissed.


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