RUPCHANDRA GHOSE Vs. RUPMANJARI DASI

JUDGEMENT

(1.) This was a suit to have a drain, dug for the purposes of irrigation, closed and to recover damages, namely, 10 rupees for 10 haths of land in length and 7 haths in breadth, and 9 rupees, the price of the water. The first Court decreed the plaintiff's claim. The Judge in appeal has reversed the decision of the first Court, and has found that the existence of the user had been proved from a time from which a right would be gained, and that the plaintiff's witnesses have not rebutted this fact; but, on the contrary, have admitted that the defendant has irrigated from the tank for upwards of two years. In special appeal it is contended that the Judge is wrong in deciding that the defendant acquired a right of user when the depositions of the witnesses do not prove such a continuous and uninterrupted user as would be sufficient in law to establish a right by prescription, and that the testimony of the defendant's witnesses is too vague to establish the right claimed by her. I am of opinion that this special appeal must be dismissed. It is clear that the right has been admittedly enjoyed by the defendant for upwards of two years; it is also in evidence that there was a dispute in the Criminal Court about this right, and that an order was passed in favor of the defendant, and the Court may therefore assume that she was in the enjoyment of that right when that order was passed. There is evidence on the part of the defendant, which the Judge has believed, of one witness who deposes that the defendant has all along and therefore continuously irrigated from this tank; another witness deposes that about 10 or 15 years ago the defendant irrigated from this tank; and a third witness, who is now 60 years old, deposes that for as long as he can remember, or from his boyhood, he had seen the defendant in the enjoyment of this right. There is no decision of this Court which has definitely decided what period would confer a right of prescription in cases of this description. Opinions have been given on various occasions by different Benches and by different Judges, but there has been, as far as I am aware, no definite decision on the subject. The learned Chief Justice in the case of Joy Prokaus Sing v. Ameer Ally 9 W.R. 91, says, that he is inclined to think that by analogy to the Indian Limitation Act, an adverse and uninterrupted user of an easement for 12 years would confer a right to it, but he carefully abstains from pronouncing any decision on the point, observing that it had not been argued before him, and that any decision would at most amount to a dictum; but in the case referred to, in ordering the case to be remanded, the learned Chief Justice directed that the Judge of the lower appellate Court should find whether the user was or was not ancient as to confer a right by prescription. In this case I think that the Judge on the evidence before him was justified in finding that there had been such an ancient user, uninterrupted and continued, as to confer a right by prescription. The special appeal is therefore dismissed with costs.