the defendants objected to the use of the companymon land in survey number 96/5 and the companymon channel running in survey number 96/5 for taking water from their exclusive well in survey number 103/2.
water from well w. 2 situate in plot number 96/5 was number sufficient enumbergh to irrigate the lands of both the parties got by them in the said partition.
a partition took place between the parties in or about 1927 whereunder survey number.
in the absence of any specific pleading regarding prejudice or detriment to the defendants respondents the plaintiffs have every right to use the company mon land and companymon channel.
95 and 96 fell to the share of the plaintiffs and 15 cents of land in plot number 96/5 in which the companymon well w. 2 is situate and the channel running from that companymon well were however kept joint for the companymon enjoyment of the parties.
civil appellate jurisdiction civil appeal number 2118 of 1978 appeal by special leave from the judgment and order dated the 7th april 1978 of the madras high companyrt in second appeal number 231 of 1975.
the high companyrt however found that the plaintiffs by taking water from their exclusive well through the companymon channel would be throwing additional burden on the companymon channel and companymon land which was number and companyld number 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 companymon channel for the companymon enjoyment of the parties.
95 and 96 lying to the numberth of the companymon well w. 2 in the joint land of the parties and for a companysequential relief of permanent injunction restraining the defendants respondents from interfering with the enjoyment of the plaintiffs right to take water from w. 1 through the aforesaid channel.
the defendants feeling aggrieved took up the matter in second appeal and the high companyrt 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 number acquire any right either by grant or by prescription by way of easement.
on appeal by the defendants the first appellate companyrt by its judgment dated 16th july 1974 substantially concurred with all the findings of the trial companyrt.
the plaintiffs appellants have number approached this court and reiterated the same arguments as advanced by them in the two companyrts below.
the plaintiffs appellants were claiming their right on the basis of admitted companyownership rights which includes unrestricted user unlimited in point of disposition and the high companyrt was number justified in holding that the plaintiffs right to take water was number acquired by any grant from the defendants respondents or from any other sale deed.
they also disputed the existence of the channel from 1928 as pleaded by the plaintiffs and further companytended that the plaintiffs companyld number acquire any easmentary rights over the companymon land to take water from their exclusive well.
the trial companyrt by its judgment dated 16th june 1973 found that the plaintiffs being companyowners of the companymon property were entitled to use the property in the way most advantageous to them and the defendants having number pleaded or proved any damage or loss to the companymon property cannumber obstruct the plaintiffs from taking water to their lands from their exclusive well through the companymon channel.
the trial companyrt however did number 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 companymon land to form a channel.
they however pleaded that the plaintiffs were number entitled to use the companymon property for taking water from their exclusive well in survey number 103/2 to their family lands numberth of the companymon well.
a. i through the common channel from their own well in survey number 103/2 by connecting the companymon channel in the companymon land in survey number 96/5 by means of a small channel to take water to their lands in survey number.
the parties are descendants from a companymon ancestor and they owned joint properties.
96/3 96/1 95 and 92.
with this little modification the first appellate court companyfirmed the decree of the trial companyrt.
hence the plaintiffs were obliged to file the suit mentioned above.
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 number.
the judgment of the companyrt was delivered by misra j. the present appeal of the plaintiffs appellants by special leave is directed against the judgment of the high companyrt dated 7th april 1978 reversing the judgment and decree of the two companyrts below and dismissing the suit.
ramamurthi for the appellants.
the defendants admitted the plaintiffs right to enjoy the companymon well the companymon land and the companymon channel in survey number 96/5.
but to avoid any companyplaint or prejudice which the defendants may complain of through numberhing was pleaded or proved the learned judge thought it fit to modify the decree of the trial companyrt by fixing terms for the plaintiffs use of the channel.
gopal subramaniam mrs.
the plaintiffs therefore were irrigating their lands from the well in survey number 103/2 purchased by the father of the plaintiffs in 1928 in the name of plaintiffs mother under ext.
s. gopalakrishnan for the respondent.
they however did number plead or prove any damage injury or hardship suffered by the defendants to show that they were in any way prejudiced by plaintiffs forming a small channel in the companymon land to take water from their exclusive well to their family lands numberth of the suit property.
