ANANTA MURARRAO NALAVDE Vs. GANU VITHU SURULKAR

JUDGEMENT

(1.) The plaintiff sued to obtain a perpetual injunction restraining the defendants from using the water of a well alleged to have been wrongfully dug on his land. He stated that the defendants had wrongfully dug the well upon the false plea that they had obtained permission with a view to acquire a half share in the well and that they had proceeded to take tho water from the well for the purposes of irrigating their adjoining land. The defendants pleaded that they had an ancient right to take a half share of the water from the well, but that the well had fallen into disrepair and that they had consequently taken permission to repair it, and had done so at their own expense and had thereupon proceeded to use the water of the well according to their previous rights for the irrigation of their adjoining land.

(2.) The Joint Second Class Subordinate Judge of Karad found as a fact that the defendants had had an ancient right of the nature of an easement to take the water from the well, but that that easement had been extinguished by non-user for a period of more than twenty years under Section 47 of the Easements Act, V of 1882. He found further as a fact that the defendants had obtained per-. mission to repair the well with a view to the irrigation of their adjoining land and that they had at their own expense repaired the well and proceeded, though under subsequent protest, to use the water for the irrigation of their land. He held that the defendants action was not wrongful in repairing the well and that it was taken under the bona fide belief that they would have the right to use the well. But he held however that owing to the subsequent protest the right obtained under permission had been revoked and that therefore the defendants ought to be restrained from further taking the water of the well for the irrigation of their adjoining land, and that was accordingly his decree.

(3.) The First Class Subordinate Judge of Satara, upon first appeal, accepted practically these facts as found at the trial, but he obviously felt the injustice of the injunction against the defendants, and he held that their easement was really an easement of necessity and was therefore not extinguished under Section 47 of the Indian Easements Act, V of 1882. He held further that the right was in any case not extinguished as it was upon a proper construction of the defendants title deed really a half share in the well and was an interest in immoveable property which would only be lost by the proof, of which there was none, of adverse possession for more than twelve years under Article 144 of the Indian Limitation Act. He, therefore, held that the defendants were not liable to the perpetual injunction passed against them and that the suit against them ought to be dismissed. He accordingly reversed the decree of the trial Court.