- (1.) THE plaintiff in O.S.No.564 of 1991 on the file of the District Munsif, Polur, has preferred the second appeal aggrieved against the judgment and decree of Sub Court, Tiruvannamalai in A.S.No.9 of 1996 dated 3.3.1997, reversing the judgment and decree of the trial Court dated 22.11.1995.
(2.) THE case in brief is as follows: THE plaintiff filed a suit for permanent injunction that the water from the well in A Schedule property should not be taken B Schedule property by the defendants and their men. S.No.145 measuring 1.01 acre, S.No.117/1 measuring 20 cents. S.No.117/3 measuring 84 cents and other properties in Kalasamudiram village are ancestral properties of the plaintiff. THEse properties were divided by the plaintiff and his brother under a registered document dated 24.12.1988. THEre is a well in S.No.145 and 3 HP Motor Pumpset and 5/16 share in the well. Subsequently, the share allotted to the plaintiff's brother was, also purchased by the plaintiff's brother was, also purchased by the plaintiff under a registered document dated 1.3.1990 and as such the plaintiff had acquired 1/16 share in the suit well. One Duraisami Gounder also has got right in 1 acre 15 cents in S.No.117 and 11 cents in S.No.145 and also 1/4 right in the well. THE said Duraisami Gounder conveyed his right to the Ist defendant under a registered document dated 31.12.1951. According to the plaintiff, the well after in S.No.145 can be irrigated only to the aforesaid survey numbers and they are the ayakattu lands. None of the parties have got right to take water to other survey numbers. D-2 son of D-1 had purchased the B schedule Property from a 3rd party under a registered document dated 14.5.1991 in S.No.118, which is outside the ayakattu. THE defendant attempted to take water from the suit well to the B Schedule property also. THE water in the well is available for irrigating only the ayakattu lands and not for other lands. Hence, the suit. The defendants resisted the suit stating that the plaintiff as well as the defendants have got right in the well. But, there is no ayakattu lands as contended by the plaintiff. There is copicous supply of water in the well and other lands also can be irrigated from the water in the suit well. D-1 had also purchased right in the well. But, the survey number has been wrongly mentioned as 117. There is also a dividing wall in the well in the A Schedule property and each parties had been taking water from their respective portions in the well and this being so, the plaintiff is not entitled to claim the relief of permanent injunction restraining the defendants and their men from taking water to the other lands. Even during dry seasons about 10 acres of land can be irrigated from the water in this well. The trial Court framed 5 issues and the plaintiff was examined as P.W.1 and D-1 was examined as D.W.1 and Exs.A-1 to A-3 and B-1 and B-2 were marked. After hearing the parties the learned District Munsif decreed the suit in favour of the plaintiff and aggrieved against this the defendants preferred A.S.No.9 of 1996 on the file of Sub Court, Tiruvannamalai and the appeal was allowed and the judgment and decree of the trial Court wee set aside and the suit was dismissed. Aggrieved against this, the plaintiff has come forward with the present second appeal. The plaintiff/ appellant raised the following substantial questions of law: " (i) Whether the lower appellate Court is right holding that the co-owner of the well could burden the well by creating new ayacats, that are not even his acquisitions" " (ii) Whether the lower appellate Court is not in error in holding that the well could be burdened with lands that are not the subject matter of irrigation earlier and the plaintiff should prove the extent of damage" " (iii) Whether the lower appellate Court is not in error in not following the judgment of the Madras High Court in Sivarama Pillai and others v. Marichami Pillai Sivarama Pillai and others v. Marichami Pillai Sivarama Pillai and others v. Marichami Pillai A.I.R. 1971 Mad. 230" " (iv) Whether the lower appellate Court had not misplaced the burden of proof on the appellant" " (v) Whether the lower appellate Court ought not to have seen that the responsible are estopped from challenging the rights of the appellant to irrigate the lands from the well without any diminution to it supply" " (vi) Whether the order of the Court of the Sub Judge, Tiruvannamalai in A.S.No.9 of 1996, dated 3.9.1997 in reversing the judgment and decree of the Court of the District Munsif, Polur in O.S.No.564 of 1991 dated 22.11.1995, is not liable to be set aside on such other substantial questions of law as this Court deem fit to frame and decide" Heard the learned counsel for the appellant, the respondents although served have neither appeared nor engaged any counsel. The points that arise for consideration are: " (i) Whether the plaintiff is entitled to the relief of permanent injunction" " (ii) To what relief"
(3.) POINTS: The plaint A Schedule property is a dry land measuring 2.74 acres in S.No.145 in Kalasamudiram village and there is a well situated in an extent of 4 cents. B Schedule Property is also situated in the same village and the dry land in S.No.118/4 is measuring 1.52 acres and S.No.118/9 is measuring 28 cents. The learned counsel for the plaintiff contended that the plaintiff and his brother were having right in S.Nos.145, 117/1 and 117/3 and they have divided the properties in the family partition under a registered document dated 24.12.1988. The plaintiff got 5/16 share in the well in S.No.145 and also half share in the 3 HP Motor Pumpset installed in the well. Similar right was also given to the brother of the plaintiff and ultimately P.W.1 had purchased the share of his brother also under a registered document dated 1.3.1990. By this, it is evidently clear that P.W.1 had acquired 10/16 share in the suit well and full right over the 3 HP Motor Pumpset. Similarly one Duraisami Gounder had also got 1/4 right in the well and the right in the well as well other areas in S.Nos.117 and 145 were also purchased by D-1 under a registered document dated 31.12.1951. Subsequently, D-2 had purchased the B Schedule property which is in S.No.118 from a 3rd party under a registered document dated 24.5.1991 and attempted to take water from the well in the A Schedule property to the lands in B Schedule property. The learned counsel for the plaintiff further contended that the water from the well in the A Schedule property can be used for irrigating only the ayakattu lands namely S.No.118 and as it is not a ayakattu area neither the defendants nor their men are entitled to take water. Per contra, it is seen from the records that the defendants admitted the right of the plaintiff in the well. But, they would contend that there is no ayakattu area specifically mentioned and as such the defendant are entitled to take water to B Schedule property namely S.No.118 also. As adverted to D.W.1 that he had purchased right in the well, but the survey number has been wrongly mentioned as 117. Assuming that D.W.1 had purchased right in the well in S.No.145, the only question that has to be considered is when their the plaintiff as well as D.W.1 have got share in the well. whether the plaintiff is entitled to get the relief of permanent injunction restraining the defendants from taking water to other lands. It is pertinent to state that at one point of time, the defendants took a plea that there is a dividing wall in the well and each of the parties are using the water on their side. However, in the course of evidence, it was given up and there is no dividing wall put up by the parties. But, naturally there is a dividing rock and as such they were using separately. Only when the well was divided by metes and bounds, then alone the parties are entitled to use the same according to their convenience to other lands also. When there is no division of the well by metes and bounds each of them are entitled to use the entire portion of the well. Furthermore, D.W.1 had purchased a new property under a different sale deed and this land does not belong to the vendors of the plaintiff and the defendants. It is settled position of law that the well and the water can be used for the lands mentioned in the document and not for a new acquisition. Although the trial Court decreed the suit, it was reversed by the lower appellate Court. The learned counsel for the plaintiff/ appellant contended that the appellant is directly affected by the well being burdened by new ayakat. It is well settled that the well under the common enjoyment of the parties cannot be subjected to land which are not the subject matter of irrigation earlier. The burden of proof had been discharged by the appellant and on the other hand it is the case of the respondents that the well is capable of irrigating more than 10 acres and it is for them to prove the same. The lower appellate Court also failed to consider the citations given by the appellant. ;