RAMANUJ KUNDU Vs. BARANASHI DUTTA

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the two Plaintiffs-Respondents for declaration of their easement right of irrigating certain lands in a particular manner and for compelling the Defendants to remove some obstructions which had been placed in C.S. plot No. 610 impeding the passage of water from an irrigation tank to the lands of the Plaintiffs.

(2.) The suit was contested only by Defendant No. 1, who denied the right of irrigation claimed by the Plaintiffs and contended that there was no drain for passage of water as claimed by the Plaintiffs and that he had not obstructed the course of any such drain. The suit of the Plaintiffs was dismissed by the trial court, which held that the Plaintiffs had not got the right of irrigation which was claimed by them. The Plaintiffs preferred an appeal and the lower appellate court allowed the appeal and decreed the suit of the Plaintiffs making a declaration that they had got an easement right of irrigating their lands by flowing water through a channel or drain described in the plaint. The Defendants were directed to restore this drain to its former condition. This second appeal has been preferred by the Defendant No. 1 from the above judgment and decree of the lower appellate court.

(3.) In order to understand clearly the point in controversy it would be necessary to state the, following facts. The settlement map of the locality would show that there is a tank which has been surveyed in C.S. plot No. 514, which goes by the name of Barabundh. The Plaintiffs-Respondents have got several culture- able plots at some distance to the south of the tank. These plots bear C.S. dags Nos. 600, 605 and 606 of Mouzd Kukribasa. In between the tank of C.S. plot No. 514 and the last mentioned plots of the Plaintiffs-Respondents there are several C.S. dags, including dag No. 610, which admittedly belongs to the Appellant of this appeal. The case of the Plaintiffs-Respondents was that there is a well denned channel or drain from the above mentioned tank leading up to their land and this drain passes through a portion of C.S. dag No. 610. The Plaintiffs' case further was that they bailed out water of the above tank and carried it to their plots through the above channel for the purpose of irrigating the plots, but the principal Defendants obstructed this channel particularly where it passes through C.S. plot No. 610. It appears from the plaint that the Plaintiffs-Respondents claimed the right of irrigation of their lands not only by bailing out water from the tank in C.S. dag No. 514 but also by means of surplus rain water of the locality which flowed through the above mentioned drain or artificial channel. This' right of the Plaintiffs-Respondents was totally denied by the Appellant. I have already stated that the suit of the Plaintiffs was dismissed by the trial court but the decree was reversed on appeal.