JYOTANARANI PAUL Vs. AMALENDU SENGUPTA & ANOTHER

JUDGEMENT

(1.) Some questions relating to acquisition of easementary right by a tenant has come up for consideration in this appeal. What had led the plaintiff to approach the court was the blockage of a drain by the principal defendant. As per the plaintiff that drain was in existence since 1942 and was the only outlet of bath room water from her land. That drain had really been constructed by proforma defendant Harish Chandra who had taken a permanent settlement of the land from one Surabala Sarkar in 1938. The plaintiff had purchased the tenancy right in 1957 along with the construction on the land which included the pucca drain. The principal defendant came to occupy some land from the same potadar towards the south of plaintiff's land and it is this defendant who allegedly blocked the drain on 6.12.70.

(2.) The learned trial court decreed the suit which has been reversed by the learned Assistant District Judge. This has been so done because according to the learned court below (a) a tenant cannot acquire a right of easement by prescription against his landlord or against a co-tenant; (b) it was not a case of easement of necessity ; (c) in any case no elementary right can be acquired insofar as artificial water is concerned ; and (d) the plaintiff had not enjoyed the right for the necessary period of 20 years. He was also not satisfied if the right had been enjoyed nec vi, nee clam and nee precario. Shri Sarma for the appellant has assailed all these questions of law and fact.

(3.) Let it be first seen if a tenant can prescribe against his landlord or against a co-tenant. The learned Assistant District Judge has rightly referred in this connection to the decision of this court in Imdad Ali Vs. Ferai Mia ILR 6 Assam 237. A learned single Judge held in that case that acquisition of the right to an easement is not possible between two co-tenants for the following reason :