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PETITIONER: AYYASWAMI GOUNDER AND ORS.

       Vs.

RESPONDENT: MUNNUSWAMY GOUNDER AND ORS.

DATE OF JUDGMENT25/09/1984

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) SEN, A.P. (J)

CITATION:  1984 AIR 1789            1985 SCR  (1) 808  1984 SCC  (4) 376        1984 SCALE  (2)437

ACT:      Rights of  a co-owner of a property-Common user of land by a  co-owner, explained-Indian  Easements Act  Section  8, illustration (c)  thereto  applicability  of-Findings  of  a Court should  always be  with reference to specific pleading taken-Judicial propriety  and  doctrine  of  Stare  Decisis, explained.

HEADNOTE:      A partition  took place between the parties in or about 1927, whereunder  survey Nos. 95 and 96 fell to the share of the appellants-plaintiffs  and 15  cents of land in plot no. 96/5 in  which the common well W2 is situate and the channel running from  that common well were, however, kept joint for the common  enjoyment of  the parties  Water  from  well  W2 situate in  plot no. 96/5 was not sufficient to irrigate the lands of both the parties got by them in the said partition. The appellants-plaintiffs  therefore,  were  irrigating  the land in  survey Nos.  96/3, 96/1, 95 and 92 from the well in survey No.  103/2 purchased  by their father, in 1928 in the name of  their mother  under Exh.  AI by  means of  a  small channel connecting  it to  the common  channel in the common land in survey No. 96/5. The respondents defendants objected to the  use by  the appellants  of the common land in survey No. 96/5  and the  common channel running in survey No. 96/5 for taking  water from  their exclusive  well in  survey No. 103/2. Hence  the appellants filed a suit for declaration of their right  to take water from the exclusive well through a portion of a channel to their plots at survey Nos. 95 and 96 lying to  the north  of the common well W2 in the joint land of the  parties and  for a consequential relief of permanent injunction.  Restraining   the  respondents-defendants  from interfering with  the enjoyment of the appellants-plaintiffs right to  take water  from  W  1  throughout  the  aforesaid channel.  The   trial  Court,  found  that  the  appellants- plaintiffs being  co-owners  of  the  common  property  were entitled to use the property in the way advantageous to them and the  respondents-defendants having not pleaded or proved any damage  or loss  to the  common property cannot obstruct the appellants-plaintiffs  from taking  water to their lands from their  exclusive well  through the  common channel.  On appeal the  first Appellate  Court  substantially  concurred

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with all  the findings  of the  trial Court but to avoid any complaint or  prejudice, thought it fit to modify the decree of the  trial Court  by fixing  terms  for  the  appellants- plaintiffs’  use   of  the  channel  and  with  this  little modification  confirmed  the  decree  of  the  trial  Court. However, in the second appeal 809 carried by  the respondents,  the High  Court found that the appellants-plaintiffs by  taking water  from their exclusive well W1 through common channel and common land which was not and could  not have been intended by the parties at the time of the  partition when they kept their well W2 and the lands situated around  it and  the common  channel for  the common enjoyment of the parties and allowed the appeal.      Hence the appeal by Special Leave of the Court.      Allowing the appeal, the Court ^      HELD :  1:1 Findings  of a  Court should always be with respect to specific plea of the parties in the pleadings. In the instant  case, in  the absence  of any specific pleading regarding  prejudice   or  detriment   to  the  respondents- defendants the appellants-plaintiffs have every right to use the common  land and  the  common  channel  The  appellants- plaintiffs  were  claiming  their  right  on  the  basis  of admitted co-ownership and rights which includes unrestricted user, unlimited  in point of dispossession. The right of co- ownership presupposes a bundle of rights which has been lost sight of  by the High Court and therefore the High Court was not justified  in holding  that appellants-plaintiffs’ right to  take   water  was   acquired  by   any  grant  from  the respondents-defendants or  from any  other sale deed. [812H; 813A-B]      1:2. The only restriction put by law on the common user of the  land by  a co-owner is that it should not be so used as to  prejudicially effect  or put the other co-owners to a detriment. [813D]      (2) Illustration  (c) to  s. 8  of the Indian Easements Act applies  where a co-owner seeks to impose an easementary right on  the land or any part thereof. In the instant case, however, the  appellants-plaintiffs claim  easementary right only as  an alternative  ground but the main ground on which they based  their claim  is on  the right  of  co-ownership. [813D]      3:1. The judicial propriety or decorum warrants a Judge not to hold contrary to the decision of the same High Court. Here, if  the learned  Judge did not agree with the decision in Subbiah Goundan’s case of that High Court, he should have referred the matter to a larger Bench.      Subbiah Goundan  v. Ramaswamy Gounda & Ors. A.I.R. 1973 Mad. 42, approved.      3:2.  Neither   the  law   nor  expediency  warrants  a conclusion that  if the  appellants had  acquired new  land, then they  cannot have any right in irrigate from the common well or  channel If  the parties had entered into a contract then they would be governed by the terms of the contract but in the  case in hand there was no such stipulation about the manner or  mode of  enjoyment of  the common  land or common channel. Further in these days of scarcity when every effort is being  made at  all levels  to increase  the agricultural production to  feed the  country’s teeming millions it would not be  desirable to  allow  the  respondents-defendants  to create any hurdle in the irrigation of 810 the appellants-plaintiffs’  plots through the common channel from their exclusive well W1. [815F; D-E]

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    Sivarama Pillai  & Ors. v. Marichami Pillai A.I.R, 1971 Mad. 230, held inapplicable.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2118 of 1978      Appeal by  Special leave  from the  Judgment and  Order dated the 7th April, 1978 of the Madras High Court in Second Appeal No. 231 of 1975.      J. Ramamurthi for the Appellants.      Gopal Subramaniam  & Mrs.  S.  Gopalakrishnan  for  the Respondent.      The Judgment of the Court was delivered by      MISRA  J.   The  present   appeal  of  the  plaintiffs- appellants by special leave is directed against the judgment of the  High Court  dated  7th  April,  1978  reversing  the judgment and  decree of  the two courts below and dismissing the suit.      The appellants  filed a  suit for  declaration of their right to take water from their exclusive well marked W. 1 in the site plan attached with the plaint and situate in a plot of land  exclusively belonging to them, through a portion of a channel  to their  plots at survey Nos. 95 and 96 lying to the north  of the  common well W. 2 in the joint land of the parties  and   for  a   consequential  relief  of  permanent injunction  restraining   the  defendants-respondents   from interfering with  the enjoyment  of the plaintiff’s right to take water from W. 1 through the aforesaid channel.      The parties  are descendants from a common ancestor and they owned  joint properties. A partition took place between the parties  in or  about 1927 whereunder survey Nos. 95 and 96 fell  to the share of the plaintiffs and 15 cents of land in plot  No. 96/5  in which  the common well W. 2 is situate and the channel running from that common well were, however, kept joint  for the  common enjoyment  of the parties. Water from well  W. 2  situate in plot No. 96/5 was not sufficient enough to irrigate the lands of both the parties got by them in the  said  partition.  The  plaintiffs,  therefore,  were irrigating their lands from the well in survey No. 103/2 811 purchased by  the father  of the  plaintiffs in  1928 in the name of  plaintiffs’ mother  under Ext.  A.  I  through  the common channel  from their  own well  in survey No. 103/2 by connecting the  common channel  in the common land in survey No. 96/5  by means of a small channel to take water to their lands in  survey Nos.  96/3, 96/1, 95 and 92. The defendants objected to  the use  of the  common land in survey No. 96/5 and the common channel running in survey No. 96/5 for taking water from  their exclusive  well in survey No. 103/2. Hence the plaintiffs  were obliged  to  file  the  suit  mentioned above.      The defendants  admitted the plaintiffs’ right to enjoy the common  well, the  common land and the common channel in survey No.  96/5. They, however, pleaded that the plaintiffs were not  entitled to  use the  common property  for  taking water from their exclusive well in survey No. 103/2 to their family lands  north of  the common  well. They also disputed the existence  of the  channel from  1928 as  pleaded by the plaintiffs and  further contended  that the plaintiffs could not acquire  any easmentary  rights over  the common land to take water from their exclusive well. They, however, did not plead or  prove any  damage, injury  or hardship suffered by the defendants  to show that they were in any way prejudiced

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by plaintiffs  forming a small channel in the common land to take water  from their  exclusive well to their family lands north of the suit property.      The trial  court by  its judgment  dated 16th June 1973 found that  the plaintiffs  being co-owners  of  the  common property were  entitled to  use the property in the way most advantageous to  them and  the defendants having not pleaded or proved  any damage  or loss to the common property cannot obstruct the  plaintiffs from  taking water  to their  lands from their  exclusive well  through the  common channel.  It will be  relevant at this stage to quote the observations of the trial court:           "Except asserting  that it will affect him, D.W. 1      is not  able to  specify in  what way  the act  of  the      plaintiffs cause  damage or  inconvenience  to  him  in      exercising his right in taking water through the common      channel. All  that he  would say is that the plaintiffs      should not  have a  channel AB  on the  common piece of      land." 812      The trial court, however, did not record and finding on the  prescriptive   right  of   easement  pleaded   by   the plaintiffs, in view of its finding that the plaintiffs being co-owners can use the common land to form a channel.      On appeal  by the  defendants the first Appellate Court by  its   judgment  dated   16th  July,  1974  substantially concurred with  all the  findings of the trial court. But to avoid any  complaint or  prejudice which  the defendants may complain of,  through nothing  was pleaded  or  proved,  the learned Judge  thought it  fit to  modify the  decree of the trial court  by fixing  terms for the plaintiffs’ use of the channel. With  this little  modification the first Appellate Court confirmed the decree of the trial court.      The defendants  feeling aggrieved took up the matter in second appeal  and the High Court by its judgment dated 12th of June,  1978 reversed the judgments and decrees of the two courts  below  and  dismissed  the  suit  holding  that  the plaintiffs did  not acquire  any right either by grant or by prescription by  way of  easement. The  High Court, however, found  that  the  plaintiffs  by  taking  water  from  their exclusive well  through the common channel would be throwing additional burden  on the  common channel  and  common  land which was  not and  could not  have  been  intended  by  the parties at  the time  of the  partition when they kept their well W.  1 and  the lands  situated around it and the common channel for the common enjoyment of the parties.      The  plaintiffs-appellants  have  now  approached  this Court and  reiterated the same arguments as advanced by them in the two courts below.      The learned  counsel  for  the  appellants  strenuously contended that in the absence of any specific plea regarding prejudice to  the defendants  by the  use of the common land and the  common channel  the High Court was not justified in recording a  finding that additional burden to the prejudice of the  defendants would  be put  on the  common channel and that this  could never  have been intended by the parties at the time of the partition.      We find  considerable force  in this contention. In the absence of  any specific  pleading  regarding  prejudice  or detriment to  the defendants-respondents the plaintiffs have every right to use the com- 813 mon land  and common channel. The plaintiffs-appellants were claiming their  right on  the basis of admitted co-ownership rights which  includes unrestricted user, unlimited in point

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of disposition,  and the  High Court  was not  justified  in holding that  the plaintiffs’  right to  take water  was not acquired by  any grant  from the  defendants-respondents  or from  any   other  sale  deed.  The  right  of  co-ownership presupposes a boundle of rights which has been lost sight of by the High Court.      The only  restriction put  by law on the common user of land by  a co-owner  is that  it should not be so used as to prejudicially  affect   or  put  the  other  co-owner  to  a detriment.      It was  further contended  that the Illustration (c) to s. 8  of the  Indian Easements  Act relied  upon by the High Court had no application to the facts of the present case in as much  as the  plaintiffs’ case  mainly hinges  upon their right as  co-owners and  not on the basis of prescription by easementary right.  Illustration (c)  to s.  8 of the Indian Easements Act  applies where  a co-owner  seeks to impose an easementary right  on the  land or  any part thereof. In the instant case,  however,  the  plaintiffs  claim  easementary right only  as an  alternative ground but the main ground on which they  based  their  claim  is  on  the  right  of  co- ownership.      The plaintiffs  cited the  case of  Subbiah Goundan  v. Ramaswamy Goundan & Ors. before the High Court. In a similar situation it observed:           "In the  instant case,  the defendants make use of      the  common   channel  for   taking  water  from  their      exclusive well  in S.  No. 24 only during their turn of      enjoyment of  the common  well. Such  use of the common      channel, by  no  stretch  of  reason  can  be  said  to      interfere with  the right  of the plaintiff in any way.      Nor can it be said that the said user of the channel by      the defendants  would in  any way  damage or weaken the      channel. Unless  the plaintiff  proves that such use by      the defendants in any way interferes with his rights or      that the  common channel  is being  or is  likely to be      damaged or  injured or  weakened he  cannot prevent the      defendants from  making use of the channel during their      turn of  enjoyment of  the common  well by taking water      from  their   exclusive  well   also,  which   is  most      advantageous and beneficial from their point of view." 814      If the  learned Single  Judge did  not agree  with that decision he  should have  referred the  matter to  a  larger Bench and  the judicial propriety or decorum did not warrant holding contrary  to the  decision of the same High Court by him.      The defendants  indeed  are  adopting  a  ’dog  in  the manager’ policy. Although they do not stand to be prejudiced or put to any detriment on their own pleadings, they seek to prevent the  plaintiffs from  irrigating their lands through the common  channel from  their exclusive  well. There is no other source of irrigation for the plaintiffs.      Counsel for  the defendants-respondents  on  the  other hand contended  that the well W. 1 was built after partition by the plaintiffs on their exclusive land and, therefore, no additional burden  could be  put by  the plaintiffs  on  the common channel  and if the plaintiffs acquired new land then they cannot  have any right of irrigate from the common well or channel. It was also contended that no proof of damage or prejudice was necessary. In support of their contention they relied upon the decision of the Madras High Court in Sivarma Pillai &  Ors. v.  Marichami Pillai.  In that  case it was a common ground  that as  an integral  part of  the  partition arrangement, both  the branches  would have  equal right  to

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take water from the well and that right should be worked out by the  plaintiff taking  water from the well for three days and the  defendants in  the next three days thereafter. That case was  decided on  the basis of the terms of agreement at the time  of partition. It is in the setting of the facts of that case that the High Court observed:           "In the nature of things, a well cannot be divided      by metes and bounds and persons who own joint rights in      a well  (to the  right of  the water  in the  well) can      enjoy that  right either  jointly or separately only by      resort  to  a  workable  arrangement  safeguarding  and      securing the  right to  irrigate the  lands allotted to      the  respective  branches....It  is  implicit  in  such      arrangements that  the common source of irrigation, the      well  is  kept  in  common  for  the  only  purpose  of      irrigation  the   lands  which   are  allotted  to  the      respective branches  and to  serve that  purpose  only,      leaving out of 815      account the  other incidental  purposes  like  bathing,      washing clothes,  taking water  for  cattle,  etc.  The      scheme of the arrangement cannot admit of any notion of      the parties  being entitled  to the particular quantity      of water  (so many  gallons) treating  that alone  as a      distinct item  of property divorced from the lands. The      well is  sot apart  as common  property  for  the  most      beneficial and  profitable enjoyment of the land and it      does not  matter what  label the  parties give to their      rights in  the  well,  whether  it  is  a  right  to  a      particular share in the well or whether a right to take      water by turns. But what is crucial is that in the case      of lands, valuable right is the source of irrigation."      This case  is distinguishable  on facts  inasmuch as in that case  at the  time of partition the well was kept joint and arrangements had been entered into about the mode of use of the  well fixing the duration. If the parties had entered into a  contract then they would be governed by the terms of the contract  but in  the case  in hand  there was  no  such stipulation about  the manner  or mode  of enjoyment  of the common well and the common channel.      There is  yet another  reason why we would be reluctant to encourage  the defendants  to stop  the  plaintiffs  from irrigating  their  fields  from  their  own  exclusive  well through the  common channel.  In these days of scarcity when every effort  is being  made at  all levels  to increase the agricultural production to the country’s teeming millions it would not be desirable to allow the defendants to create any hurdle in  the irrigation  of the  plaintiff’s plots through the common  channel from their exclusive well. Thus, neither the law  nor expediency  warrants a conclusion as desired by the defendants.      For the  foregoing discussion  the appeal must succeed. It is accordingly allowed and the judgment and decree of the High Court  is set  aside and  the one  passed by  the first appellate court  is restored  in order  to avoid  any likely prejudice   to    the   defendants   respondents.   In   the circumstances of  the case  the parties shall bear their own costs. S.R. Appeal allowed. 816