N. RANGAPPA Vs. RANGA GOWD AND ORS.

JUDGEMENT

(1.) THE first defendant is the appellant. The plaintiff's suit related to the easementary right that they claimed to take water to their Survey No. 209/3 through the channel P, P -1, A, B, C, D, E, F, shown in the plaint plan across S. No. 207/1 belonging to the appellant. They also wanted a permanent injunction restraining the defendants from causing any obstruction to the enjoyment of that easementary right ; they further prayed for a declaration in regard to the right to use the pathway marked M, M -1, G, W -1, M -4 and the branch pathway marked as M, M -1, G, W -1, W -3 in order to reach their S. No. 209/3 and 181/1 and 181/2. They further prayed for certain other ancillary reliefs. The plaintiffs' case was that they had been enjoying these rights of easement to take water over S. No. 207/1 and walking along these pathways for over the statutory period and had acquired easementary rights in respect othereof. The appellant purchased S. No. 207/1 under Ex. D -2, dated 24th May, 1923. At that time the course of the channel was slightly different. It ran diagonally across that field through the cousre P, P -1, G, D, E, F. After the purchase the appellant obstructed the passing of the water along the channel with the result that in order to minimise the inconvenience caused to the new owner the water course was changed from the original direction to the present one namely along P, P -1, A, B, C, D, E, F. As the plan indicates this alteration, without in any manner interfering with the purpose for which the channel existed, namely to take water from the original source to the plaintiffs' field S. No. 209/3 and, undoubtedly reduced to a substantial extent the inconvenience or burden of the easement upon the servient tenement. It is not necessary to deal separately with the case of the pathway because it is similar to the case relating to the channel and the evidence, oral and documentary, on both matters is common. I shall,, therefore, mainly deal with the question of the channel.

(2.) WHAT happened after the purchase under Ex. D -2 was that the appellant closed up the old channel P, P -1, D, E, and F thereby virtually preventing the flow of water to the plaintiffs' land. The plaintiffs complained to the revenue authorities and under Ex. D -3 the Tahsildar issued a 'B' Memorandum, dated 10th December, 1925, levying a penalty on the appellant for removing the channel. The appellant appealed to the Sub -Collector who passed an order Ex. D -4, dated 26th April, 1926, reversing the Tahsildar's order and holding that the first defendant was entitled to remove the channel and directed the refund of the penalty. It is not quite clear from the judgment of either courts from what date water began to flow along the new channel but it has been assumed that water began to flow in the altered way immediately after the obstruction in 1923. The enjoyment continued uninterrupted from that date until the 30th of January, 1943, when for the second time the appellant again removed the new channel; and the present suit was filed by the plaintiffs on the 4th November, 1943, to get the obstruction removed. Both the Courts below found that the plaintiffs have established their easementary rights in respect both of the channel and the pathway. The main objection as far as it appears from the written statement that the appellant raised to the suit was that there was no channel in existence at all. No further pleas were raised to show that the enjoyment was for less than the statutory period or that the interruption that took place in 1923 had the effect of a continued enjoyment of these easementary rights. The trial Court framed an issue with regard to the question of the existence of the channel and the second and third issues were to the following effect:

(3.) BEFORE me Mr. V.S. Narasimhachari has raised several contentions most of which have been raised for the first time. He argues that there was no finding that the enjoyment of the respective easementary rights by the plaintiffs was, as required by Section 15 of the Easements Act, for the statutory period without interruption and as of right. He rightly contends relying upon a decision in Shaikh Khoda Buksh v. Shaikh Tajuddin : 8 C.W.N. 359 that even where he had contented himself with merely denying the existence of the channel it was for the Court to see whether the plaintiffs had affirmatively proved that the right had been enjoyed for over the prescribed period as of right. It has to be pointed out, however, that even though there were specific findings of the first Court, this objection was not raised before the appellate Judge and the only point argued was what I have already indicated. Even on going into this objection on the merits I do not find much substance in it. The evidence on this question as far as it is on record is all in the plaintiffs' favour. The first plaintiff who was examined as P.W. 1 and who is said to be 80 years old deposed that the old channel was in existence since the time of his great-grandfather. Curiously enough, after this emphatic statement I find no cross -examination whatever on this point. The first defendant who examined himself as D.W. 1 stated that P.W. 1 was cultivating the land at the time he purchased it and upon the strength of this statement the argument is advanced based upon Sections 11 and 12 of the Easements Act that a tenant can acquire no easementary rights on behalf of his landlord. This argument overlooks another piece of evidence namely of D.W. 2 who was the prior owner of the land and who stated in cross -examination that P.W. 1 cultivated the land only for two of three years. In fact, there is a vague statement in paragraph 7 of the written statement to the effect that years ago the first plaintiff happened to be the cultivator of the lands, now bearing S. Nos. 207 and 209 when they were owned by a common owner, and then the plaintiff used to allow the flow of water in any place he liked. No particulars were given as to when the alleged tenancy started and whether the enjoyment of the right to take water across that field came into existence during the tenancy or it was a case of continuing to enjoy a pre-existing easementary right. In view of the categorical statement of P.W. 1 that the channel was in existence from the time of his great -grandfather and the further statement of D.W. 2 that tenancy was only for a short period it is difficult to hold that the right in question began to be enjoyed only during that short period of the plaintiffs' tenancy. No doubt the lower Courts have not gone into this aspect of the matter but that was probably because the matter was not put in that form or shape in any of these Courts. It is further argued by Mr. Narasimhachari that it is very material to have a specific finding based upon evidence on the question as to when the easementary rights began to be enjoyed. He points out that if it was on or before 24th May, 1923, the date of the first defendant's purchase, it would be clearly more than 20 years before the suit and the appellant would be out of Court. If, on the other hand, the right came into existence from the 10th of December, 1925, when the Tahsildar issued the ' B ' Memorandum or on 26th April, 1926, when the Sub -Collector passed his order then the respondents would be out of Court as the period would be altogether less than 20 years. Since there is no specific finding on this question the learned advocate has put in a strong plea that the case should be sent back for a finding. In view that I have taken namely that quite obviously the enjoyment was for a period much longer than the period of 20 years mentioned in Section 15 of the Easements Act this question loses much of its importance. But even within the limited scope I have no doubt that the view taken by the Courts below with regard to this matter is correct. Both the Courts relied upon the decision of Shadi Lal, J., in Swan Singh v. Chattar Singh, A.I.R. 1918 Lah. 23. That was a decision given under Section 26 of the Limitation Act but that provision is admitted on both sides in all material respects to be identical with Section 15 of the Easements Act. There, as here, the plaintiff asked for an injunction restraining the defendant from interfering with his right to enjoy the use of a water -course. It was found that the suit was brought after the expiration of 20 years from the date of the commencement of the enjoyment of the right and within one year from the date of the obstruction by the defendant and that the period of 20 years ended within two years next before the institution of the suit. The enjoyment of the right by the plaintiff was thus for 19 years 6 months and 19 days at the time of the obstruction. The learned Judge held that though the enjoyment was only for a period shorter than 20 years the obstruction acquiesced in for less than one year must for the purposes of calculating the period of 20 years be ignored, but the plaintiff must be taken to have established his right of easement. The learned Judge also held that an easement can be acquired after an enjoyment of 19 years and a fraction and the period of 20 years prescribed by Section 26 is accordingly curtailed by the explanation. It would be profitable to advert to the discussion on this point in an ancient English case decided in 1840 by Tindal, C.J., in Flight v. Thomas, (1840) 52 R.R. 468 under the corresponding English Statute. After discussing the language of that section the learned Chief Justice has very tersely put the position in the following words: