035-NLR-NLR-V-77-SINNATHURAI-and-another-Appellants-and-THARMALINGAM-and-another-Respondents.pdf
ALLES, J.—Sinnathurai v. Tharmalingam
181
1969Present : Alles, J.
‘SINNATHURAI and another, Appellants, and THARMALINGAMand another, Respondents
S. C. 130/68—C. R. Mallakam, 16563
.Servitude giving right to a “ share of the water ” in a well—Whetherit includes the right to use the well sweep—Servitude to use wellsweep—Termination of. it by non-user—Effect when a new wellsweep is erected.
Whether a servitude giving co-owners a right to a “ share of thewater ” in a well includes the right to use a well sweep erectedto draw water from the well would depend on the facts of theparticular case.
The servitude of using a well sweep may be terminated by non-user. If, therefore, a new well sweep is erected thereafter by aparticular co-owner, it is not subject to a servitude in favour ofthe other co-owners of the “ share of the water ” in the well.
A. PPEAL from a judgment of the Court of Requests, Mallakam.S. Sharvananda, for the plaintiffs-appellants.
C. Chellappah, for the 1st and 2nd defendants-respondents.
Cur. adv. vult.
July 9, 1969. Alles, J.—
The plaintiffs, husband and wife, who are the owners of Lots2 and 3 in the plan marked “ X ”, filed of record, have institutedthis action against the defendants praying that they be declaredentitled to the use of the well sweep that has been erected for
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AL.I-.ES, J.—Sinnathurai v. Tharmalingam
the well situated on Lot 6, for a share of the water from thesaid well and the right to use the way and water-course leading,from the said well to their land. The 1st and 2nd defendants arehusband and wife and the 4th to the 12th defendants have beenmade parties to this section as they have similar rights as theplaintiffs in respect of this well.
In the course of the trial, it was conceded by the 1st and 2nddefendants that the plaintiffs were entitled to a share of thewater in the well with the right of way and water-course andthe only issue that remained for decision was the plaintiffs’ rightto use the well sweep which was erected in 1966.
. Lots 2, 3, 6 and other Lots originally belonged to three persons—Muthupillai, Kathirgamar, Arunasalam and his wifeKannathai. By an amicable division between these three personsby Deed No. 1204 of 1920 (PI), Lots 2 and 3 were allotted toMuthupillai, who donated the same by Deed No. 2230 of 1st May,1947 (P2), to her daughter, the 2nd plaintiff. On PI and P2, theplaintiffs obtained a share of the water in the well on Lot 6 andthe right of way and water-course. The portion allotted toArunasalam and Kannathai devolved on the 1st and 2nddefendants and is marked Lot 6. According to PI, Arunasalamand Kannathai obtained Lot 6 “ exclusive of the share of thewell and way and water-course belonging to other lands to thesaid well
The plaintiff stated in evidence that her mother Muthupillaidrew water from the well with the aid of the well sweep andirrigated her plantations, and that from the time she was eightyears old, she and her predecessors used the well sweep. Thisevidence has not been challenged nor does the learned Commis-sioner disbelieve her evidence on this point. It has however beenestablished, through the evidence of the 1st defendant, that sincehis marriage in 1956, the well sweep had fallen down and wasnot in use until a new well sweep was erected in 1966.
The learned Commissioner has accepted the evidence of the 1stdefendant, in spite of a denial by the 2nd plaintiff and herwitnesses, that the well sweep was erected by the 1st defendantand that the plaintiffs and the other co-owners did not contributeany share for the replacement of the well sweep. The non-userof the well sweep for a considerable period is supported by thefact that in September, 1960, the plaintiffs instituted ActionNo. 15804 in the Court of Requests claiming to be the soleand exclusive owner and possessor of the well sweep trees onthe western side used as posts and praying for a declarationthat they be entitled to erect a new well sweep and to use it todraw water from the well.
ALLES, J.—Sinnalhurai v. Tharmalingam
isa
The learned Commissioner in his order in case 15804 made on6th June, 1962 marked P5, held that no prescriptive user of thewell sweep had been established by the plaintiffs, and on a strictconstruction of the Deed of Partition of 1920, held that although“ on equitable grounds the plaintiffs should be permitted to erecta well sweep for the benefit of all concerned, a servitude is aright that must be strictly construed and the plaintiffs are notgiven such a right, when the other co-owners are objecting to the
plaintiffs erecting any well sweep” In coming to this
conclusion, the learned Commissioner has followed the decisionof the Supreme Court in Vythilingam v. Vyramuttu1 55 N. L. R.185 where it was held that a servitude giving a right to a “ shareof water ” in a well does not include the right to use of the wellsweep if no mention of the well sweep is made in the Grant.I find it difficult, however, to accept the ratio decidendi inVythilingam v. Vyramuttu as being one of universal application,and in my view, whether a servitude giving a right to a “ shareof water ” includes the right to use a well sweep, would dependon the facts of the particular case. In the present case, theevidence of the Surveyor, after inspection on a commission issuedby Court, is to the effect that the well was about 28 feet deepand that to irrigate the fields from this well, a well sweep wasrequired and that it would be difficult to draw water from thewell without a well sweep. It is a well known feature in theJaffna Peninsula that water is drawn from wells by the use Ofwell sweeps and the surveyor who gave evidence in this casehas stated that the wells he had inspected in the area all hadwell sweeps. From 1920 to 1956, water from this well had beendrawn by the use of a well sweep. It is therefore inconceivable,that when the parties entered into the Deed of Partition in 1920..providing for the sharing of the water from the common well,they did not have in mind that the water was to be drawn by theuse of a well-sweep. In this connection, I would refer to theobservations of Sampayo, J. in the unreported case (S. C. 182Chavakachcheri 20263—S. C. minutes of February 1916) citedby Rose C. J. in Vythilingam v. Vyramuttu. In a similar casewhere the question of the right to the use of a well and wellsweep was considered, the learned Judge said: —
“ I must say in regard to my own judgment in appeal onthe previous occasion, that I never intended to restrict theplaintiff’s right merely to draw water. The well means notmerely the actual hole in the ground but the entire arrange-ment by which it can be used. That being so, it seems to methat it is quite unreasonable to disconnect the well sweepfrom the well itself. ”
J (1953) 55 N.L.B. 185.
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ALLES, J.—Sinnathurai v. Tharmalingam
Rose C. J. conceded that on the facts of the case referred to bySampayo, J. the order in question might be appropriate andproceeded to consider the facts in Vythilingam v. Vyramuttu andheld that in the absence of evidence of prescriptive user and ona strict interpretation of the grant which made no reference tothe well sweep, a “ share of water ” in the well did not includethe use of the well sweep.
In my opinion, therefore, on the facts of the present case, thelearned Commissioner who delivered the order in Case 15804was wrong when he held on a construction of the Deed ofPartition that the use of water from the well did not includethe use of the well sweep.
There are however, two insurmountable difficulties in the wayof the plaintiffs succeeding in the present action. Firstly, althoughthere is evidence of prescriptive user from 1920 to 1956, the wellwas abandoned from 1956 and the well sweep was not in useuntil 1966. Therefore there cannot be any question of theplaintiffs’ claiming the right of user to this well by prescription.Learned Counsel for the appellant submitted that the servitudewas in abeyance since 1956 and was revived in 1966. In viewof the long period of time—10 years—and the fact that duringthis period the plaintiffs and other co-owners have used otherwells in the neighbourhood, for the purpose of drawing water,I am inclined to take the view that the servitude has beenterminated by non-user.
Secondly, I am of the view that the defendants are entitledsuccessfully to plead that the decree in C. R. Case No. 15804operates as res judicata in the present case. Learned Counselfor the appellant sought to draw a distinction between the causeof action in C. R. Case 15804, which was for the erection of awell sweep and the use of water from the well, and the causeof action in the present case, which was for the use of thewell sweep which had already been erected. In either case, thebasis of the plaintiffs’ rights would depend on the properconstruction of the Deed of Partition—whether it permitted theuse of the well sweep for the purpose of drawing water fromthe well. The learned Commissioner in Case No. 15804 adjudicatedon this question and the plaintiffs, in the absence of any findingin appeal to the contrary, are bound by the adjudication in thatcase.
For these reasons I am of the view that the plaintiffs are notentitled to succeed in this action. The decree in the case is notin conformity with the judgment and does not state “ that theplaintiffs are entitled to the share of the water in the well
DE KRETSER, J.—Paranav:thar>e v. Themanis
185-
situated in Lot 6 in the Plan marked ‘ X ’ filed of record and tothe right to use the way and water-course leading from thesaid well to the plaintiffs’ land The decree will be amendedto include these words. Subject to the variation in the decree,the appeal is dismissed with costs.
Appeal dismissed.