PARBHAWATI DEVI Vs. MAHENDRA NARAIN SINGH

JUDGEMENT

(1.) Defendant first party an-ex-military personnel is the appellant. He died. His heirs have been substituted in his place. The suit was filed under Order 1 Rule 8 of the Code of Civil Procedure in the year 1968. It was for a declaration that plot no. 1014 of khala no. 256 of village Rampur Police station Lakhissarai in the distri ct of Monghyr was Gair Mazrua Am Houi (a water reservoir) belonged to the villagers who were raiyats and they had easement to take water from that and to irrigate their lands and that the settlement of 5 acres out of it made with the appellants by the Land Reforms Deputy Collector was illegal, void and without jurisdiction. It was also prayed that the defendants be permanently restrained from going upon the land. The case of the plaintiff was that water was stored in survey plot Nos. 924 and 1014 which made one compact and from which water was used as Ahars for irrigating their lands from time immemorial, although in the fard-ab-pasi and in the Kesra-ab-pasi only survey plot no. 924 was mentioned as representing the whole Ahar. It was also pleaded that the suit plot 1014 did not vest in the State of Bihar. It may be pointed out that plot no. 924 measures 13.26 acres and the suit plot 1014 measures 6.75 acres. Plot no. 924 is not in dispute. The learned subordinate Judge, Monghyr decreed the suit holding that the suit plot No. 1014 and plot No. 924 were one compact block which was used as Ahar and water was being used by the villagers for irrigation purposes, that the settlement made by the State of Bihar with defendant 1st party was valid, and, that the suit plot 1014 vested in the State of Bihar. The lower appellate court affirmed the findings of the trial court with some modification. The modification was that the plaintiffs could not be granted a decree for confirmation of possession because they had acquired easement subject to the proprietary right of the State of Bihar.

(2.) Mr. K. D. Chatterji appearing for the appellants contended that the courts below have erred in granting a decree for easement to the plaintiffs because such a right can never be granted in favour of fluctuating body of persons. In my opinion, he is right. The main characteristics of easement are: (i) There must be dominant and a ser-vient tenement: (ii) The easement must accomodate the dominant tenement. This is clear from the definition of easement given in Section 4 of the Indian Easements Act, 1882. The relevant portion of that section runs as under:

(3.) The lower appellate court at some places in its judgment says that some portion of the two plots 924 and 1014 were filled up in natural course and were fit for cultivation up to the year 1967 but from paragraph 15 of its judgment it appears that major portion of plot No. 1014 had been filled up and it had lost utility as source of irrigation. The court of appeal below has referred to Ext. 7 the report of the Block Development Officer. The report was that the suit plot 1014 which was a Houj and lost its utility as a source of irrigation since the canal irrigation in the area came into operation. The further report was that a major por-tion of the Houi had lost its character and it became cultivable. This report was not rejected by the court but its importance was minimised by stating that the report showed only a portion of the plot cultivable. The lower appellate court conveniently omitted to use the word 'major' because the report was that major portion had lost its character and had become cultivable. The lower appellate court has not given any finding whether the disputed portion of the plot 1014 was culturable portion or not. I have said above that the area of plot 1014 was 6.76 acres. It cannot be disputed that in course of time the character of land may change. In the written statement what was said in paragraph is that a Govt. Amin was deputed to assure the cultivable portion of plot No. 1014 and he found the land in suit having an area of 5 acres cultivated and cultivable and divided into several clocks (chacks?). There is noth- ing reliable on record to show that this assertion of the defendants was wrong. Ext. B/1 is the report of the Amin. Ext C/1 which is one of the entries in the khesra for the year 1967-68 (vide serial Nos. 1192 to 1194) shows that an area of only 1 acre of the suit plot 1014 was shown as Jalagar (water reservoir). Tha lower appellate court says that the character of the plots as Jalagar retained even up to plot had been silted and filled up by the year 1967. The pleader commissioner (P. W. 13) also found that a portion of the plot had been silted and filled up. The lower appellate court has itself accepted the cultivation. There is evidence on record that the lands of the villagers were being irrigated from Kul river canal from the year 1963 and from some other sources also. This fact was accepted by the court below. The lower appellate court says: