Holding

A co‑owner is entitled to use common land and a common channel for his purposes unless the use prejudicially affects the other co‑owner; in the absence of specific pleading of such prejudice, the appellants’ use is lawful.

Summary

The case arose from a 1927 partition of jointly owned agricultural land where a common well (W2) and its channel were retained for joint use. The appellants, owners of an exclusive well (W1) purchased in 1928, irrigated their allotted plots by connecting a small channel from W1 to the common channel on the shared land. The respondents objected, claiming the appellants had no right to use the common land and channel for drawing water from W1 and sought to restrain them. The trial court and the first appellate court held that co‑owners may use common property unless the use causes prejudice to the other co‑owner, and found no such prejudice was pleaded or proved. The High Court reversed, relying on illustration (c) to Section 8 of the Indian Easements Act, but the Supreme Court set aside that judgment, emphasizing that the only legal restriction on a co‑owner’s use of common land is the absence of demonstrable detriment to the other co‑owner. Consequently, the appeal was allowed, restoring the decree of the first appellate court and affirming the appellants’ right to use the common channel for irrigation.

Issues considered

Whether a co‑owner may use common land and a common channel to draw water from his exclusive well for irrigation in the absence of proof of prejudice to the other co‑owner.
Whether illustration (c) to Section 8 of the Indian Easements Act applies to the present facts.
Whether the High Court erred in reversing the findings of the lower courts.
Whether judicial propriety requires a larger bench when departing from a prior decision of the same High Court.

Legislation cited

Indian Easements Acts. 8

Subjects

co‑ownershipcommon landeasementIndian Easements Actpartitionwater rightsirrigationjudicial proprietystare decisis

Judgment

A
808

AYYASWAMI GOUNDER AND ORS.

v.
B MUNNUSWAMY GOUNDER AND ORS.

September 25, 1984

[A.P SEN AND R.B. MISRA, JJ.J
c
Rights of a co-owner of a property-Common user of land by a co-owner,
explai11ed-lndia11 Ease111e11ts Act Sec!ion 8, illustration (c) thereto applicability
of-Findings of a Court should always be with reference to specific pleading
taken-Judicial propriety and doctrine af Stare Decisis, explained.
•
A partition took place between the parties in or about 1927, where-
under 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. Thea:;ipellants-plaintiffs therefore, were irrigating the land
B in survey Nos. 96/3, 96/1, 95 and 92from the well in survey No. 103/2pur•
chased by their father, in 1928 in the name of their mother under Exh. AI by
means of a sn1all channel connecting it to the commJn channel in the
common land in survey No. 96/S. 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
p 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 comm·)n wdl W2 in the joint land of the parties and for a consequcn ..
tial relief of permanent injunction. Restraining the respondents-defendants
from interfering with the enjoyment of the appe11ants-plaintiffs right to take
ater from WI throught the aforesaid channel. The trial Court, found that
ilie appellants-plaintiffs b!:ing co-owners of the common property were
G entitled to use the property in the way advant~geous to them and the respon-
dents-defendants having not pleaded or proved any damage or loss to the
common property cannot obstruct the appellants-palaint1ffs from taking
water to their lands from their exclusive well through the common channel. •
On appeal the first Appellate Cour~ substantially ccncurred with all the
findings of the trial Court but to avoid any complaint or prejudice, thought
·t fit to modify the decree of the trial Court by fixing terms for the appellants
~plaintiffs' use , of the channel and with this little mo..dification
confinned the decree of the trial Court. However, in the second appeal
H
A, GOUNDER v. M. GOUNDER
.. 809

carried by the respondents, the High Court found that the appellants-plain· ! _ A
ti.Es by taking water from their exclJsive well Wl through common channel
and common land whichwas not and could nothave been intended by the
parties at the time of the partition when they kept their well \V2 and the lands
situated around it and the common channel for the common enjoyment of the
parties and allowed the appeal.
B
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 pr~judicc or detriment to the res·
pondcnts-defendants the appellants-piaintiffs 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 \Yhich
includes unrestricted user, unlimited in point ·or dispossession. The right
of co-ownership presupposes a bundle of rights which has been lost sight of
by the High Court aJd therefore the High Court was not justified in holding
that appellants-plaintiffs9 right to take water was acquired by any grant from D
the resPondents-dcfendants or from any other sale deed. L812H; 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]
E
(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 ease-
mentary right only as an alternative ground but the main ground on whkh
·they based their claim is on the right of co-ownership. [813DJ

· 3: 1. ThaJudicial propriety or decorum warrants a Judge not to hold F
,_ contrary to the decision of the same High Co~rt. Here if the learned Judge
9

~~
9
. . . 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 Goundi.J & Ors. A.I.R. 1973 Mad. 42.
approved.

3; 2. Neither the law nor expediency warrants a conclusion that if the 'l..
appellants had acquired new land, then they cannot have any right in irrigate 0
from the common well or channel ]f the parties had entered into a contraCt
then they wou1d be governed by the terms of the contract but in the case in
hnd there was no ~uch stipulation abollt the manner or mode of enjoyment
~-.
of the common land or common channel. Further in these days of scarcity
when every effort is being madi; at all JevetS to increase the agricultural pro-
duction to feed the country•s teeming millions it would not be desirable to
allow the rcsdondents-defendants to create any hurdle iu the irrigation of ~ {
H
810 SUPREME COURT REPORtS (1985] 1 S.C.R,
A the arpelJJnts-plaintiffs' plots through the - common channel from their
e_xclusive well WI. [815F; D-El

Sivarama Pillai & Ors. v. Marichaml 'Pillai A.LR, 1971 Mad. 230,
l:eld inapplicable,

F B CtvtL 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.
c J. Ramamurthi for the Appellants.

Gopal Subramaniam & Mrs. S. Gopalakrishnan for the
. Respondent.

.·
The Judgment of the Court was delivered by
I .
D
MISRA J. The present appeal of the plaintiffs-appellants by
special kave 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. ·

E The appellants filed a suit for declaration of their rigtt to take
· water . from their· exclusive well marked W. I in the site plan
· attached \\ilh 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 bnd 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.l_through the aforesaid channel.

-- The parties are descendants from a common ancestor and they
owned joint properties. A partition took place between the parties
G 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. 9615 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,
H were irrig~ting their lands from the well in survey No. 103/2
l

A,. GOUNDER v. M. GOUNDIR (Mhra, J.) 811
•
A
purchased by the father of the plaintiffs in 1928 in the name of
plantiffs' 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 B
land in survey No. 9615 and the common channel running in survey
No. 96/5 for taking water from their exclusive. well in ·survey No.
403/2. Hence the plaintiffs were obliged to file the suit mentioned
above.

The defendants admitted the plaintiffs' right to enjoy the
c
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 D
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 by plaintiffs forming a small channel in the common E
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 proper!) were F
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 :
G
"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
AJJ on the.common piece of Ian<;!."
'
812 SUPREME COURT REPORTS (1984] 3 S.C.R.
A The trial court, however, did not record any 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.

B 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 Jud!le thought it fit to modify~
the decree of the trial court by fixing term; for the plaintiffs' use of
c 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
l) '
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
E 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-appellant' have now approached this Court and
F reiterated the same arguments as advanced by them in the two
courts below.

The learned counsel for the appellant~ strenuously contended
that in the absence of any specifi~ plea regarding prejudiee to the
defendants by the use of the common land and the common channel
the High Court w1s not jBtifil.I in recordhg a finding that additio-
.G'
nal burden. to the prejudice of the defendants would be put on the
common. channel and that this could never have been intended by
the part i~s 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 de-
H'. fendants-respondents the plaintiffs have every ri~ht to 11se the com-
A. GOUNDER v. M. GOUNDER (Misra, J.) 813

mon land and common channel. The plaintiffs-appellants were clai- A
ming their right on the basis of admitted co-ownership rights which
includes unrestricted user, unlimited in point 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-owner·
ship presupposes a boundle of rights which has been lost sight of B
by the High Court.
The only restriction put by law en 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 lllustration (c) to s. 8 of th~ c
Indian Easements Act relied upon by the High Court had no
application to the facts of the present case in as much as the plain·
tiffs' case mainly hinges upon their right as co-owners and not on
• the basis of prescription by easementary right. Jllustration \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. D
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.' 1\ before the High Court. Jn a similar situation it E
observed :
"Jn 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
F
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 inter-
feres with his rights or that the common chanel is being
G
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 froin their point of
view.•'
(I) A.I.R. t97fMad. 42
814 SUPREME COURT REPORTS [1985] ! S.C.R.
A 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 warunt hoJd;ng contrary to
the decision of the same High Court by him.

The defendants indeed are adopting a 'd'Jg in the manger'
B 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 £ource of irrigation for the
plaintiffs.
-
c 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
•
D of irrigate from the common well or channel. It was also conten-
ded 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 Sivarama 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
E 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
F 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 work-
G able 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 irrigating the lands which are allotted to the respective
branches and to serve that purpose only, leaving out of

ff (I) A.l.R.1971Mad.230
l•
A. GOUNDER v. M. GOUNDER (Misra, J.) 815

account the other incidental purposes like batn ing, A
washing clothes, taking water for cattle, etc. The sch cme
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
B
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 c
irrigation.''
This case is distinguishable on facts inasmuch as in that
t case at the time of partition the well was kept joint and arranges-
ments had been entered into about the mode of use of the well
fixing the duration. If the parties had entered into a contract then D
• 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 r.eason 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. E
• 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
F
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 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
G
respondents. In the circumstances of the case the parties shall
bear their own costs.

s.R. Appeal allowed. 1t