RAMBHAI DABHAI PATEL Vs. VALLABHBHAI JHAVERBHAI PATEL

JUDGEMENT

(1.) The plaintiff in this case sued for an injunction restraining the defendant from preventing him from taking water into his field, Survey No. 729, by the artificial water-course by the eastern boundary of the defendant s land, Survey No. 730, marked B in the plan, Exhibit 11. The water is carried from the well which is shown in the plan in the north of these two fields. It is contended that the plaintiff has no right to carry the water by that route, though he may have the right to carry it by the longer route running by the western boundary of the Survey No. 730, marked 0 in the plan. The plaintiff based his claim upon an ancient right to take water to his field by the shorter route as alleged by him and also upon the acquisition of such right by prescription, i.e., by twenty years user as provided in Section 15 of the Indian Easements Act. He also referred to an agreement which was arrived at between his father and one Samal Manor who was an agnatic relation of the defendant. The trial Court raised a general issue as to whether the water-course in question was proved and found it in the affirmative. The trial Court granted the injunction asked for.

(2.) The defendant appealed to the District Court which held that the agreement between the plaintiff s father and Samalbhai was not binding upon the defendant. It also held that the title by prescription under Section 15 of the Indian Easements Act was barred, as an obstruction to the easement in question was caused more than two years prior to the date of the suit. The appellate Court, however, held that the ancient way for taking water as alleged by the plaintiff was proved by the oral evidence in the case, and further observed as follows: "As the water has passed by the way claimed from time immemorial, it follows that it was agreed between all the then land-holders, including the holder of defendant s laud, that the plaintiff s water should pass that way. The plaintiff did not, therefore, acquire this right by prescription, but by agreement and grant." Accordingly the appellate Court dismissed the appeal. The defendant then preferred a second appeal to this Court. This appeal, which was heard by the learned Chief Justice, was allowed, and the plaintiff s suit dismissed with costs throughout. This decision, as I read it, is based mainly on the ground that the only mode of acquisition, pleaded in the case apart from the agreement of 1896, was that provided by Section 15 of the Indian Easements Act and that no question was raised that the right had been used from time immemorial. It is also based upon the ground that there was no evidence in the case to prove the real agreement which the appellate Court purported to find. At the close of the judgment, it is observed as follows: "He gets the water by a slightly longer route, but it has not been proved how the water came before the Indian Easements Act or the Indian Limitation Act was passed. The water coming by the longer route is just as good as the water that comes by the shorter route. Therefore it cannot be said he has suffered any injury from the defendant s obstruction to the shorter water-course. If it had been otherwise, I have no doubt I might have endeavoured to find some way of remedying the injury to the plaintiff which undoubtedly he would be suffering under. But here there is no injury."

(3.) From this decision the present appeal is preferred under the Letters Patent. It is urged in support of the appeal that the plaintiff relied not only upon the acquisition of the easement under Section 15 of the Indian Easements Act but also upon his ancient right to use the water-course described in the plaint. It is urged that the plaintiff s case was based upon an ancient right, that is, in effect, upon immemorial user. It is urged that the District Court has in fact found in favour of the plaintiff as regards the ancient right and the immemorial user, and that that finding ought to have been accepted in second appeal.