IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30/03/2004
CORAM
THE HONORABLE MR.JUSTICE M. CHOCKALINGAM
SECOND APPEAL NO.1283 OF 1993
Gouri .. Appellant
-Vs-
Kamalakshi .. Respondent
This second appeal is preferred under Section 100 of CPC against the
judgment and decree of the learned Subordinate Judge, Kuzhithurai made in AS
No.39 of 1992 dated 31.3.1993 confirming the judgment and decree of the
learned Principal District Munsif, Kuzhithurai made in OS No.543 of 1991 dated
7.4.1992.
!For Appellant : Mr.R.N.Amarnath
^For Respondent : Mr.Peppin Fernando
:JUDGMENT
The defendant whose plea was rejected by both the courts below in a
suit for declaration, permanent injunction and mandatory injunction is the
appellant herein.
2. The following short facts are noticed in the pleadings of the
parties.
The immovable property more fully described in the plaint originally
belonged to one Nallathambi Nadar, the father of the plaintiff and the
defendant. He executed a Will on 5.9.1984 in which the plaintiff was shown as
second party and the defendant was shown as first party. B schedule property
was allotted to the plaintiff and the A schedule property was allotted to the
defendant. The suit property was described as B schedule item No.1 in the
Will. On the death of Nallathambi Nadar, the Will came into force. As per
the Will, the plaintiff became the absolute owner of B schedule property.
There was a Well in the plot of the plaintiff. The residential house of the
plaintiff is also situated in the same plot. During the life time of
Nallathambi Nadar, the plaintiff and the defendant were also taking water from
the Well with bucket and rope by exercising manual labour. After the death of
Nallathambi Nadar, they continued to take water in that manner. While so, the
defendant had installed the compressor on 29.9.1991 within the Well and pipe
fittings were attached to the compressor and electric lines were also drawn
within the suit property taking advantage of the absence of the plaintiff.
The action of the defendant was unlawful and illegal, and hence, there arose a
necessity to file the suit seeking for declaration that the suit property
belonged to the plaintiff and mandatory injunction for the removal of the said
compressor machine, pipelines, electric fittings, etc. and for permanent
injunction restraining the defendant from interfering with the peaceful
possession and enjoyment of the property by the plaintiff.
3. The suit was resisted by the defendant inter-alia stating that the
plaintiff has no cause of action for filing the suit; that the Will mentioned
in the plaint is an admitted one and the same came into force in the year 1984
after the death of Nallathambi Nadar; that it is also true that the properties
mentioned in the schedule B of the Will were set apart for the plaintiff and A
schedule were set apart for the defendant; that the mother of the defendant
also died few years back; that she had a right of enjoyment over all the
properties including the Well; that insofar as the Will in question, there is
a clear provision in the Will that the water was being taken from that Well
and being used and the right that was exercised should continue to exist even
after the death of the testator by the allottees of both A and B schedules;
that after the death of the testator, the owner of B schedule should not raise
any dispute or objection as to the exercise of right over the Well; that the
said provision was absolutely binding on the plaintiff; that the testator in
his last Will and testament did not prescribe any particular method for
lifting water from the Well nor he referred the existing method or device for
drawing water from the Well; that all that he said was that the water was
being drawn and used and that right should continue to exist and should have
available to the owner of A schedule property even after his life time; that
how the water, which went deep beneath the ground, should be brought up to
surface was for the users to decide; that the testator never limited or
restricted in any manner of the use of water by the defendant from the Well;
that it is true that the defendant was taking water from the well lying in the
suit property by using mini pump having 0.5.HP; that the defendant have every
right to do so and the plaintiff cannot dispute or question the same; that the
plaintiff cannot suffer any loss or injury by the defendant using the Well by
taking water by using that method, and thus, the plaintiff was not entitled
for the relief as asked for.
4. The trial court framed necessary issues, tried the suit and
decreed the same. An appeal preferred by the defendant was also dismissed.
Hence, the defendant has brought forth this second appeal.
5. At the time of admission, the following substantial questions of
law were formulated by this Court for consideration:
1) Whether the Courts below were right in its construction of the
scope and terms of the grant under the Will Ex.A.1? and
2) Whether the Courts below misconstrued the scope and extent of the
grant under Ex.A-1 to deprive the right of the appellant to have access to the
property and draw water from the well in question?
6. This Court has heard the learned counsel for the appellant/
defendant and also the learned counsel for the respondent.
7. Admittedly, the parties to the proceedings, namely, the plaintiff
and the defendant were the daughters of one Nallathambi Nadar, who executed a
Will on 5.9.1984 bequeathing A schedule property to the defendant and B
schedule property to the plaintiff. On the death of Nallathambi Nadar, the
said Will came into force and the parties became the owners of their
respective shares. It is also not in controversy that there is a Well in the
B schedule what was allotted to the plaintiff. It is also not in dispute that
the defendant has also been given right to take water from the Well situated
in B schedule, which belonged to the plaintiff.
8. The case of the plaintiff was that during the life time of
Nallathambi Nadar, the water from the well was being drawn using buckets and
ropes by exercising manual labour and taking advantage of the absence of the
plaintiff, the defendant has installed a compressor within the Well and pipe
fittings were given to the said compressor and electric lines were also drawn
within the suit property, which action was illegal and has caused loss and
prejudice to the plaintiff, and hence, the relief should be granted in his
favour. The prime defence plea before the courts below and equally here also
is that it is true that right has been given to the defendant to take water,
but the method in which water was to be taken from the well was not mentioned.
Thus, the bucket and rope theory for taking water by exercising manual labour
was only an imagination of the plaintiff and the right of the defendant to
take water cannot be restricted to drawing of water by using of bucket and
rope, and thus, the installation of machine, pipe fittings and electric
connection are all well within her right. From the very admission made by the
defendant, it would be abundantly clear that he has deepened the well by
installing the pipe fittings, compressor machine and also by drawing electric
wires. D.W.1 has categorically admitted that during the life time of
Nallathambi Nadar and after his death and also till the installation of the
said machine, the parties were drawing water by using bucket and rope by
exercising manual labour.
9. A perusal of Ex.A.1 Will would clearly indicate that the right has
been given to the defendant to take water in the well situated in the
plaintiff’s land. It is also true that the the method in which water has to
be taken was not indicated therein. But, it is quite evident from the
testimony of D.W.1 that during the life time of Nallathambi Nadar and after
his death, the parties have been taking water from the well only by using
manual labour and not otherwise. Under the stated circumstances, permitting
the defendant to take water by using mechanical process or through electric
fittings would be nothing but causing loss and prejudice to the plaintiff’s
interest, and hence, the right that has been given in the Will can be
interpreted only in such a way that the defendant was given right to take
water in the method in which it has all along been taken and not otherwise.
There cannot be any impediment for the defendant to take water from the well,
since it was the right given under the Will, but it cannot be exercised in
such a way, which would cause prejudice to the opposite party and the same
cannot be permitted. Hence, both the courts below were perfectly correct in
rejecting the defence plea and granting the relief as asked for by the
plaintiff.
10. Hence, this second appeal fails and the same is dismissed,
leaving the parties to bear their costs.
Index : Yes
Internet : Yes
vvk
To
1. The Subordinate Judge, Kuzhithurai
2. The Principal District Munsif, Kuzhithurai
3. The Record Keeper, VR Section,
High Court, Madras