RAMANAND SINGH Vs. SURAJ PRASAD SINGH

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs asked for a declaration of title and confirmation of possession with regard to 13 bighas 16 kathas and 10 dhnrs of land comprised in plots 101 to 105 of Ichata No, 43 of village Baijapur Fakir. Plaintiffs 1 to 3 are 12 annas proprietors of the tauzi in which the disputed land is situated. Defendant No. 10 is the proprietor of 4 annas share. Plaintiff No. 4 is said to be the settles of he disputed land from defendants 1 to 3. Plot No. 102 is recorded! in the survey khatian as a pokhar having an area of 10 bighas 10 kathas 10 dhurs and plots NOS. 101,103 and 104 are recorded as bhindas of the pokhar. Khata No. 43, in which these plots are included, is recorded as gair-raazrua-malik. The suit was instituted against the defendants under the provisions of Order 1, Rule 8, C. P. C. In other words, the defendants have been sued as representatives of the villagers of Baijapur Fakir, Damodarpur and Baijapur Keso. The case of the defendants was that there was a customary right of irrigation from the disputed pokliar for about 400 bighas of land. The defendants also pleaded a customary right of catching fish. The trial court found that the plaintiffs had proved their title to the disputed land and the defendants had also proved that they exercised the right of irrigation openly for a long time, but the finding of the trial court was that the exercise of the right of irrigation was not as a matter of right and the right also was not reasonable. The Trial Court accordingly gave a decree to the plaintiffs declaring their title and granting recovery of possession of the disputed land. But the lower appellate court affirmed the decree of the trial court on slightly different grounds. The lower appellate court held that the defendants had not established the right of irrigation from time immemorial but the view of the lower appellate court was that from about the year 1920, after the publication of the record-of-rights, the defendants have exercised the right of irrigation openly and to the knowledge of the plaintiffs. The lower appellate court held also that the right was reasonable, but the claim of the defendants was negatived on the ground that there was no proof that the defendants exercised their right of irrigation as a matter of right.

(2.) On behalf of the defendants, who have presented this appeal, the learned Government Advocate submitted, in the first place, that the lower appellate court has committed an error of law in holding that the defendants have not exercised the right of irrigation for a period of about 30 years, from the year 1920 "as of right". We think that this argument is well founded and must be accepted as correct. On behalf of the appellants reliance was placed upon two decisions of this High Court, Nazir Hussain v. Aulad Haider, AIR 1926 Pat 460 and Radha Kishun v. Sunder Mal AIR 1934 Pat 11. In Nazir Hussain's case, AIR 1926 Pat 460, it was pointed out by a Division Bench of this High Court that the rule is well established in England that a party enjoying an easement acted under a claim of right until the contrary is shown, and the English rule also applies to India in this respect. The same principle has been expressed by a Division Bench of this Court in a later case, AIR 1934 Pat 11. It was held in that case that when there is evidence of long enjoyment in a particular way, it was the habit of a particular court, so far. as it lawfully could, to clothe the fact with right. In laying down this proposition of law the learned Judges relied upon the decision of Fry, J, in Mody v. Steggles, (1879) 12 Ch D 261. It is important to notice that this case related to irrigation right, and the plaintiffs brought the suit for a declaration that they were entitled to irrigate their village in a particular manner. It was held by the High Court that evidence of long enjoyment of irrigation should be attributed to the easement granted by the defendants' predecessor-in-tide to the plaintiffs. On behalf of the respondents reliance was placed by Mr. P. R. Das on three decisions, Shaikh Khoda Buksh v. Shaikh Tajuddin, 8 Gal WN 359, Nasiruddin v. Deokali, AIR 1929 Pat 124 and Salina Jitendra Lal v. Ram Churan, 1959 BLJR 226 : (AIR 1959 Pat 475). In the Calcutta case it was held by Banerjee, J. that in India a mere period of long user will not give right of presumption that the user was made from the beginning with the claim of right. The learned Judge held that the presumption of English law will not apply to India where it is customary for the owner of a piece' of land not to raise an objection to the passage of strangers over such land. The decision of Banerjee, J. in the Calcutta case was followed by this High Court in AIR 1929 Pat 124, and also in a subsequent case decided by this Bench in 1959 BLJR 226 : (AIR 1959 Pat 475). We do not however, think that the principle laid down in diese decisions can be properly applied to the decision of the present case. It should be noticed that all these cases deal with customary usage of pathway by the villagers, and in a matter of this description it was properly held that mere user for a long period of a property will not raise a presumption that the user was as a matter of right because of the special circumstances prevalent in India. In the present case we are dealing with the question of irrigation right claimed by the defendants for a period of over thirty years from a tank, the water of which has been used regularly for irrigating about 400 bighas of land appertaining to different villages. In our opinion, the principle laid down by Banerjee, J. in 8 Cal WN 359, must be confined to the facts of the particular case, namely, the question of user of a village pathway. The principle laid down in that case was applied by this High Court in 1959 BLJR 226 : (AIR 1959 Pat 475), which was also concerned with the right of way over a piece of parti land. With regard to the irrigation right from the tank claimed in the present Case we see no reason why the rule of English law should not apply namely the presumption that the user has been as of right by the defendants until the presumption is rebutted by evidence adduced on behalf of the plaintiffs. We think that the principle to be applied to the present case is the principle laid down in AIR 1926 Pat 460 and AIR 1934 Pat 11. For these reasons we consider that this appeal should be allowed, the decree of the lower appellate court should be set aside and the case should go back for rehearing to the lower appellate court and for a fresh decision in accordance with the principles we have just indicated.

(3.) With regard to the question whether user for a period of thirty years is sufficient to establish Customary right of irrigation also, the finding of the lower appellate court is not a finding in accordance With law. In Mt. Subhani v. Nawab, 68 Ind ApP 1 at p. 31 : (AIR 1941 PC 21 at p. 32), it was pointed out by the Judicial Committee that in India it is not of the essence of the rule that the. custom to be binding must be ancient and its antiquity, must be carried back to a period beyond the memory of man -- still less, that it is ancient in the English technical sense. It will depend upon the circumstances of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved is that the usage has been acted upon in practice for such a long period as to show that it has, by common consent, been submitted to as the established governing rule of the particular, locality. The Judicial Committee held in that case that the custom was proved over a period of nearly thirty years and accepting the evidence of the plaintiffs the Judicial Committee held that the customary right claimed was established. In our opinion, it is necessary for the lower appellate court to re-examine the evidence of customary right adduced by both the parties and come to a finding whether the right of irrigation exercised by the defendants for a period of over thirty years from the preparation of the record-of-rights established a customary right in their favour.