MANI CHANDER CHAKERBUTTY Vs. BAIKANTA NATH BISWAS

JUDGEMENT

(1.) The only question raised in this appeal is as to whether the defendants, being tenants of the plaintiffs, can claim a right of easement in respect of the water, fish and earth of the tank in dispute.

(2.) The Munsif disallowed the claim of the defendants, because a tenant cannot acquire a right of easement against his landlord. The Subordinate Judge decided that the defendants had acquired the easement in question. He said: " When a tenant has no right to the land which he occupies, he cannot claim prescriptive right over the servile tenement, inasmuch as he has no right to the dominant tenement itself. But the defendants in this case are osat talukdars, having a proprietary interest in the dominant tenement. Consequently, they are entitled to claim right of easement over the land in the khas possession of plaintiffs."

(3.) The plaintiffs appeal. The first point that calls for observation in this case is the fact that the defendants, in their written statement, never claimed any right of easement at all. In paragraph 7 of their written statement they claimed, not a right of easement over the tank, but a fourth part of the tank, on the ground of adverse possession for twelve years. It does not appear how this claim came to be converted into one of a right of easement. But it was so converted, for we find the third issue framed by the Munsif is: "Have the defendants Nos. 1 to 5 any prescriptive right by user in the enjoyment of the water, fish and earth of the tank in dispute?"