SUBBIAH GOUNDAN Vs. RAMASWAMY GOUNDAN AND ORS.

JUDGEMENT

(1.) THE plaintiff in O.S. No. 255 of 1966 on the file of the District Munsif, Coimbatore, who succeeded in the trial Court but failed in the lower appellant Court is the appellant in this second appeal. The first defendant is the father of defendants 2 and 3. They together own a half share in the land and well in S. No. 33 in Negamam village, whereas the other half share belongs to the plaintiff. Likewise, the defendants own a half share in S. Nos. 31 and 35 of the same village, whereas the other half share belongs to the plaintiff. It is the common case of the parties that the well in S. No. 33 is being enjoyed in common by turns, the plaintiff using the well continuously for the first six days and the defendants likewise using for a similar period subsequently to irrigate their respective shares in S. Nos. 31, 33, and 35. There is a common channel lying in the eastern extremity of S. No. 33. East of that channel the position of which is indicated in the Commissioner's plan Ex. C -2, there is survey No. 24 in which the defendants are entitled to an extent of 10 cents. In that extent of 10 cents they have sunk a well in which they have installed an electric pump and pump set. From that well, the defendants have laid a channel which joins the common channel and by such connection the defendants bale out water from the well in S. No. 24 and take water through the common channel for the purpose of irrigating their shares in S. Nos. 33 and 35. The plaintiff laid this suit for a declaration that the defendants were not entitled to use the common channel for the purpose of taking water from their well in S. No. 24 and for a permanent injunction restraining the defendants from making use of the common channel for the purpose of taking water from the well in S. No. 24. The defendants contended that by their using the common channel during their turn of enjoyment of the common well, the plaintiff was in no way prejudiced and that, as common owners of the channel, they were entitled to use it even for taking water from their well in S. No. 24. The District Munsif found against the defendant holding that the use of the channel by the defendants for taking water from their well is likely to affect the rights of the plaintiff and in that view, decreed the suit. In the appeal preferred by the defendants, the Subordinate Judge of Coimbatore took a different view holding that the defendants were entitled to use the common channel during their turn even for taking water from their private well in S. No. 24 as such user did not infringe or affect the rights of the plaintiff in any way. In that view, the appeal was allowed and the suit was dismissed hence this second appeal.

(2.) THE question for consideration is whether the defendants the common owners of the channel are entitled to use it, during their turn of enjoyment for taking water from their exclusive well. The plaintiff has not alleged in the plaint nor has he let in evidence to show that by the use of the common channel by the defendants for taking water from their well, his right is in any way affected. Nor is it his case that by such user, the channel is in any way or is likely to be damaged or injured. All that he contends is that the common channel is intended to be used only for taking water from the common well and that the defendants cannot use the channel to take water from their exclusive well. Mr. M. S. Venkatarama Iyer. appearing for the appellant -plaintiff contended that in principle this case is in no way different from a case of the enjoyment of a common well by a co -owner to irrigate a land which was not previously irrigated by the well prior to the partition between co -owners and argued that if a co -owner of a well cannot use the well to irrigate a land which was not previously irrigated by that well in the same way the co -owner of a common channel cannot use it for the purpose of taking water from a well which does not belong in common to the owners of the common channel. In support of this argument, he relied upon the decision in Sivarama Pillai v. : (1970)1MLJ376 . In that case Ramamurti, J., on a review of the case law held that when a well or some source of irrigation irrigates lands belonging to several persons, the source of irrigation cannot be divorced or dissociated from the lands and that irrespective of the question of 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. The learned Judge has pointed out the uniform trend of decisions of this Court not to permit the co -owner to irrigate any land newly acquired by him. In coming to this conclusion the learned Judge followed a Bench decision of this Court in Venkatarama Sastri v. : AIR1929 Mad25. That was a case of a tank in an agraharam. The defendants in that case 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 plaintiff 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. In that view, it was held that the plaintiffs were entitled to an injunction. The principle is that the right to the water in the well is co -extensive with the right to irrigate a particular land. The right in the well is inseparably connected with the land. All the cases in which the same view was taken are referred to by Ramamurti J. in : (1970)1MLJ376 and it is unnecessary to repeat them here.

(3.) WHEN co -owners, at the time of partition set apart a portion of the common property to be used as common for the beneficial enjoyment of their respective shares that involves a dedication by each of them of a portion of the property, which but for such dedication would become his exclusive property. Each of such co -owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time causing any injury or detriment to the other co -owners. It is for such a co -owner to decide in what way he could so use the common property to his maximum advantage. It is not for the other co -owners to dictate in what manner the other co -owner should enjoy the common property so long as the user of the common property by one co -owner does not materially interfere with the use of the property by the other co -owners or affect their rights or in any way weaken, damage or injure the common property. Such co -owners are not entitled to prevent the other co -owner from using the common property in the way most beneficial to him. When co -owners of lands divide the lands, sometimes they set apart a common pathway for the beneficial enjoyment of their respective shares. Each co -owner is entitled to use the common pathway in a way most beneficial to him. 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 property 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 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 common passage also stand in 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 any way materially interfered with and without damaging or weakening the common property.