BHUPATI BHUSAN MONDAL Vs. JADUNATH GHOSAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs and is directed against the decision of Sri B. M. Ray Chaudhury, learned Subordinate Judge, Birbhum dated 15-11-1948, affirming the decision if Sri Durgadas Bose, Munsif, 1st Court, Bolpur, dated 28-2-1945.

(2.) The suit out of which this appeal has arises was for a declaration of the right of easement viz., to exercise the right of irrigation from a reservoir called Kanai Chowdhury's Bundh and described in schedule Ka to the plaint and for certain other reliefs. The right of irrigation is claimed in respect of the plots mentioned in schedule Kha of the plaint, the servient tenement being the reservoir described in Schedule. Ka includes three cadastral survey plots being Dags Nos. 13,108 and 110. Plots 13 and 110 are said to be the watery portion of Kanai Choudhury's Bundh, the embankment being C. S. Plot No. 108. The plaintiffs' allegation is that the right of irrigation was being exercised from time immemorial by certain channels existing at the south-east and the north-east corners of the bed of the said tank. The plaintiff's claimed a right of irrigation by presumption of a lost grant. It is necessary to state the prayers in the plaint which run as follows: (a) that the three plots is Schedule Ka be declared to form part and parcel of Kanai Choudhury Bundh; (b) that plots Nos. 13 and 110 be declared to be the reservoir and the plaintiff's right of irrigation in respect of the land in schedule Kha with the water of the reservoir be declared; (c) that the defendants be restrained from converting any portion of the lands in schedule Ka into arable land or to transform it by making 'nullas' or digging pits or in any other manner or to interfere with the exercise of the plaintiffs' aforesaid right of irrigation; (d) that a mandatory injunction be issued against defendants Nos. 9 and 10 to restore the 12 or 13 bighas on the North of plot No. 13 to their former condition; and that a prohibitory injunction restraining those defendants from cultivating the area be issued.

(3.) Several written statements were filed by different sets of defendants. It is necessary to set out the written statements of defendant Nos. 1 to 3, the principal contestants in the suit. The defendants' case is that plot No. 13 is 'Puratan Patit' (ancient waste) and was so recorded at the time of the Cadastral Survey operations; that there was a clear line of demarcation between this land in plot No. 13 and the 'Jalkar' situated and lying in plot No. 110. On these pleas several issues were raised. The learned Munsif decreed the suit in part and gave certain declarations to which I shall advert hereafter. Against the decision of the learned Munsif the plaintiffs took an appeal. The learned Subordmate Judge who heard the appeal maintained the decision of the learned Munsif.