AYYASWAMI GOUNDER AND ORS. versus MUNNUSWAMY GOUNDER AND ORS.

Citation: [1985] 1 S.C.R. 808 · Decided: 25-09-1984 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
B 
p 
G 
H 
808 
AYYASWAMI GOUNDER AND ORS. 
v. 
MUNNUSWAMY GOUNDER AND ORS. 
September 25, 1984 
[A.P SEN AND R.B. MISRA, JJ.J 
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 
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 
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 
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 
• 
• 
• 
.. 
A, GOUNDER v. M. GOUNDER 
809 
carried by the respondents, the High Court found that the appellants-plain· ! _ 
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. 
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-plaintiffs
9 right to take water was acquired by any grant from 
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] 
(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 eas

Excerpt shown. Read the full judgment & AI analysis in Lexace.