063-NLR-NLR-V-65-M.-NAGASAMY-et-al.-Appellants-and-K.-APPATHURAI-et-al.-Respondents.pdf
Nagaaamy t>. Appaifwni
30C
1962Present: Herat, J.
M.NAG AS AMY el al., Appellants, and K. APPATRURAI et al.}
Respondents
8. C. 5(1960—C. B. Mallakam, 15403
Servitude—Well—Right to draw water—Right to lead water—Necessary parties.
Where, in an action for a declaration, of a right to draw water from a welland to lead that water from the well, the well and the water lifting apparatusin question and the land through which the water ia to be led belong to severalpersons, all the owners of the servient tenements axe nsoessaiy parties andmust be joined.
HERAT, J.—Nagasamy v. Appatkurai
307
Appeal from a judgment of the Court of Requests, Mallakam.
3. W. Jayewardene, Q.C., with 3. D. Tambicth, N. R. M. BahiwaMe.^nd D. S. Wijewardene, for the Defendants-Appellants.
~GrRanganathan, for the Plaintiffs-Respondents.
March 28, 1962- Herat, J.—
The plaintiffs-respondents who are husband and wife sued thedefendants – a ppellants for the following reliefs :
(а)For a declaration that they were entitled to a share in the well
shown in plan marked X.
(б)For a declaration that they were entitled to a share in the ‘ Toorvai '
land which is the land immediately surrounding the well andused as an adjunct of that well.
For a share of the water lifting machine which machine is fixed
on the soil of the land to the North of the land on which thewell stands and which is depicted as a black circle in the plan X.
For a declaration that they were entitled to the five coconut
trees standing on the £ Toorvai ’ land.
For a declaration that they were entitled to effect certain plantations
on the 1 Toorvai ’ land, and for damages against the defendantsfor obstructing them in their rights.
The learned Judge who heard the case did not grant them thedeclaration as regards the five coconut trees or the right to plant onthe ‘ Toorvai ’ lands, but granted them the remaining reliefs.
Now, it appears from the evidence that the plaintiffs pleaded in theirplaint their title to the land called ‘ Narayanavalavu ’ which, they said,was irrigated by water drawn from the well referred to in two ways :
(а)by reason of dowry in favour of the second plaintiff,
(б)by prescriptive title.
The defendants-appellants put the plaintiffs-respondents to the proofof their title by dowry and denied that the plaintiffs-respondents wereentitled by prescriptive possession to the land * Narayanavalavu ’. Atthe trial the plaintiffs produced three documents marked Pi, P2 andP3, P3 being the alleged dowry deed in favour ^of the second plaintifffrom her mother. The document marked being, however, a certifiedcopy. The first plaintiff who gave evidence, however, stated that P3was a forgery and a fabrication, and upon this evidence the learnedCommissioner of Requests found that there was no paper title provedby the plaintiffs to ‘ Narayanavalavu ’.
It also appears from the evidence led in the case that the apparatusreferred to as the ‘ water lifting machine ’ is fixed on land which belongsto a person called Suppar Ponnambalam. It further appears from the
30S
HEBAT, J.—Naga&omy v. Appathwai
evidence in the case that the well in question as well as what is referredto as the ‘ Tocrvai 5 land is situated on soil which belongs to severalpersons, some of whom are not defendants or parties to this case.
Now, it aeems that both the parties, as well as the learned Commissionerwho tried the case, did not clearly appreciate the nature of the legalrights in dispute in the action. In the first instance one cannot claim,in law, a share to a well except in the sense that the well is situatedon a land owned in common, of which the plaintiffs, admittedly, areCo-owners. That is not the case here. The plaintiff's do not aver thatthey are co-owners of the land on which the well is situated. Wbatthey really intended to prove and to claim a declaration for was thatthey as owners of the dominant tenement Narayanavalavu were entitledto a servitude of aquae haustus over the well in question, namely, todraw water from it, and to a servitude of aquae ductus, namely, to conduotor lead that water from the well in this over the ‘ Toorvai ’ land and theland on which the well is situated to their land ‘ Narayanavalavu’. Theplaint has been inartistic ally framed and the correct legal conceptionsutterly confused. This court has held in Sinqaram v. Shavmugam1that there is no such claim as a claim to a share in a well exceptin the limited sense I have referred to. But the claim must be for the servi-tude of aquae haustus and aquae ductus. So that the portion of the learnedCommissioner’s judgment granting a share in the well cannot stand onthat ground alone. Even if we can construe the claim for a declarationin a share of the well made by the plaintiffs-respondents as a claim forthe servitude of aquae haustus and aquae ductus, such an action cannotbe maintained in the absence of the other co-owners who owned theservient tenements, as they are not defendants in this case. Vide32 N. L. R. at page 328.
As far as the claim to a share in the water lifting apparatus isconcerned it is not quite clear from the evidence whether the plaintiffs-respondents considered that apparatus as a movable or as an immovable.If the water lifting apparatus is movable, the plaintiffs-respondentsclearly not being co-owners of that movable have no share in the owner-ship of that apparatus. If their claim to a share in the water liftingapparatus is in the nature of a declaration that they are entitled tocertain servitual rights upon that movable, such a claim is untenablein law. If, as the learned Judge finds, the water lifting apparatus is afixture or immovable, admittedly it is situated on the separate land ofSuppar Ponnambalam and is his immovable property. If so theplaintiffs-respondents cannot get a declaration to such a servitual rightunless Suppar Ponnambalam is a party bo these proceedings.
Mr. Advocate Renganabhan who appeared for the plaintiffs-respondents vary ably Bought bo get over these difficulties by statingthat his clients were really entitled to admit servitual rights of drawing
1 (1958) 81 N. L. R. at page 580.
HERAT, J.—Nagasamy v. Appathurai
30t>
and leading water in the well and of using the water lifting apparatusas part and parcel of those rights, and that this action was merely onefor a claim in damages and for an injunction against the defendants-appellants as tort in feasors who were unlawfully interfering with hisadmitted rights. He said his clients had to prove those rights notbecause they were the substantial claim in his action, but as mediaupon which to sustain his claim for the tortious acts of the defendants-appellants. But it would not be realistic to accede to this argument inview of the terms in which the plaint is couched, and the relief prayedfor and the issues framed in the action. Almost 90 per cent of theclaim in the prayer deals with declarations for a share in the well, ashare in the * Toorvai ’ land, a share in the water lifting apparatus, etc.I think the real situation is the plaintiffs-respondents intended to claimservitual rights of aquae haustus and aquae ductus, but have had theirpleadings framed in a olumsy manner.
Mr. Jayewardene, counsel for the defendants-appellants strenuouslyargues that this appeal should be allowed and the plaintiffs-respondents5action dismissed. He points out that the litigation has taken sis years ;that the issues of non-joinder of parties were framed at the trial, and thatit would not be correct at this stage to give the plaintiffs-respondentsan opportunity of amending their pleadings so as to clearly bringout <he real legal nature of their claims and to give them an opportunityof joining such necessary parties as they may be advised. However,I have a discretion in the matter and I find from the evidence in the casethat the position taken up by the defendants-appellants at the trial wasthat if the plaintiffs-respondents satisfied the court that they wereowners of ‘ Narayanavalavu then, admittedly, they were entitled tothe servitude of aquae haustus and aquae ductus from the well in question.I think justice would be satisfied by allowing this appeal and settingaside the judgment and decree of the learned Commissioner of Requestsby directing the plaintiffs-respondents to pay the defendants-appellantsthe costs of appeal as well as the costs of the abortive trial, and by remittingthis case for a fresh trial before another Judge with an opportunityfor the plaintiffs-respondents to amend their pleadings in order to setout the legal position now clarified and to join such necessary parties asthey may be advised who should be joined for a proper trial of theissues involved in the case.
I, therefore, set aside the judgment and decree of the learnedCommissioner, order the plaintiffs-respondents to pay the defendants-appellants costs of this appeal and costs of the abortive trial in the courtof first instance, and I remit this case for trial before another Judge,giving the plaintiffs-respondents an opportunity of amending theirpleadings if they so desire and of joining such parties as they may beadvised, if Decessary, in order to get the relief they claim.
Case remitted for fresh trial