found closed, on that score alone, it could not be inferred that the plaintiff would not have drawn the water from the well through the abovesaid opening. Inasmuch as the well had been used in common by both the owners, such a mouth like structure is fitted in the wall of the plaintiff's property and considering the lie of the well, it is evident that the same had been in the usage of the owners of the separate portions as putforth by the plaintiff and in such view of the matter, it is found that the Commissioner's report and plan, do not affect the case of the plaintiff as determined by the trial court and on the other hand only advance the case of the plaintiff probablising that the plaintiff had been drawing the water from the well by using a separate pulley. Merely on the fact that the Advocate Commissioner had not noted the separate pulley in the well, the same would not dis-entitle the plaintiff to seek the reliefs prayed for. When according to the plaintiff, the defendant with a view to deprive the usage of well had destroyed the pulley portion and on the other hand, when from the photographs marked as Exs.A4 and A5, it is found that the plaintiff had been using the well through the door way fitted in his property, in all, particularly considering the admission of the defendant that the two units were originally bearing door No.44 A with only one well, in such view of the matter, when the defendant has failed to establish his exclusive right to the well and on the other hand, when the plaintiff' has established that the well fitted in the property from the inception had been in the usage of the two portions in common, in the preponderance of probabilities, accordingly the first appellate court, is found to be right in accepting the plaintiff's case and granting the reliefs in favour of the plaintiff's as prayed for.
