DARBARI KUMAR Vs. KHATIR MIAN

JUDGEMENT

(1.) THE appellants, who are certain Kumhars instituted the suit out of which this appeal arises on behalf of themselves and the other kumhars of their village, asking for a declaration that they had a right to take earth for the purpose of making earthenware utensils from a tract of land some 5 or 6 bighas in area, which, in the record of rights, was recorded as the gairmazrua land of the landlords.

(2.) A right to take earth from the land of another person is not an easement but a profit a prendre in gross. Nevertheless, it falls within the extended meaning given to the word "easement" in the Limitation Act, and a right of this kind can, in consequence, be acquired by prescription. One of the grounds on which the Courts below dismissed the suit was that the plaintiffs had failed to show that they had been taking earth as of right for a period of 20 years. Mr. S.K. Sarkar for the appellants, points out that the two co sharer landlords to whom the land in question belongs were impleaded in the suit as defendants and that one of them unequivocally admitted that the plaintiffs had the right which they assert. That being so, Mr. Sarkar said, although the other pro forma defendant may be entitled to stop the plaintiffs from taking earth, if and when there is a partition and this land is allotted to him, no one else, including the other persons who were impleaded in the suit as defendants, is entitled to do so. This argument is, in my opinion, well-grounded. The other defendants have recently reclaimed a portion of the land in suit, and in order to enable them to grow paddy in the land reclaimed have put up an embankment or bandh. The plaintiffs asserted that, in consequence of the erection of this bandh surface drainage water accumulated on the rest of the land in suit and made it impossible for them throughout the greater part of the year to obtain earth suitable for the purpose of their trade and asked for an injunction requiring these defendants to demolish the bandh. Mr. Sarkar for the appellants, is, of course, correct in saying that the owner of land on a lower level is under an obligation to receive surface drainage water from land on a higher level. At the same time, the owner of land on a lower level is entitled to conduct ordinary agricultural operation on it. In order to render land suitable for the cultivation of paddy it is necessary to enclose it with bandhs or ails, and there does not appear to be any evidence that the bandh which the contesting defendants have put up is unnecessarily high, or otherwise is a bandh of a kind which they are not entitled to construct. Moreover, it has to be remembered that the plaintiffs are not the owners of the gairmazrua land. In order to succeed, what they had to show was that the contesting defendants by erecting this bandh had interfered with their right to take earth. Now, although water may accumulate to a greater extent than it did prior to the erection of this bandh, it seems to me quite impossible to say that in consequence of the erection of the bandh, the plaintiffs have, in any way, been prevented from exercising their right to take earth. What is really complained of, is that, prior to the reclamation done by the contesting defendants, the plaintiffs had been taking earth from a number of more or less deep pits in the land, and that water now accumulated in these pits to a much greater extent than it did hitherto. Apparently, earth taken from the surface of the land is not suitable for making earthenware utensils, and has to be obtained from some distance below the surface, and, therefore, most conveniently from the pits which the plaintiffs and their caste men have excavated. The right of the plaintiffs is not, however, a right to take earth from these particular pits; and if they must take earth from them and cannot obtain it elsewhere, they must prevent an excessive quantity of water getting into the pits in the same way as, for instance, the owner of a coal mine must either prevent water getting into the mine or take steps to pump it out. As I have already said, the contesting defendants would not appear to have exceeded their rights in putting up a bandh in order to enable them to grow paddy on the land which they have reclaimed. It does not appear that the plaintiffs and their caste men had excavated any pits in the land which has been reclaimed by the defendants, and, in fact, it is scarcely possible that they can have done so, as otherwise the land would have been rendered unfit for purposes of cultivation. Although, therefore, the grounds on which the lower appellate Court dismissed the suit are, I think, open to criticism, the decision was, in my opinion, correct, and this appeal will accordingly be dismissed with costs.