TINKORI PATHAK Vs. RAM GOPAL PATHAK

JUDGEMENT

(1.) The litigation which has culminated in this appeal is the result of a dispute in respect of the right to irrigate two fields with water drawn from an adjoining tank. The tank is described in schedule "ka attached to the plaint, while the two fields are comprised within boundaries set out in schedules kha and ga attached to the respectively. The plaintiff's claimed a right to irrigate the fields, as they and their predecessors had done from time immemorial. The defendant, who is the proprietor of the village, is the landlord of the plaintiffs and the owner of the tank. He denied that the fields had been irrigated from time immemorial, and further pleaded that the alleged user, even if established, could confer on the plaintiff's a right enforceable against their landlord, specially as for many years past the tank had been in the occupation of other tenants. As regards the field in schedule ga he took the further defence that the right of irrigation, even if it ever existed in fact and in law, had been extinguished by his purchase of the tenancy at a sale for arrears of rent. The Court of first instance dismissed the suit. Upon appeal, the Subordinate Judge has modified that decision and has awarded the plaintiffs a decree in respect of the field in schedule kha only. The defendant has appealed to this Court and has contended that the decree of dismissal made by the Trial Court should not have been disturbed. The plaintiffs have presented a memorandum of cross-objection and have argued that the claim should have been decreed in respect of the field in schedule ga in addition to the field in schedule kha .

(2.) In support of the appeal by the defendant, the twofold ground has been urged that immemorial exercise of a right of irrigation does not, in the present case, justify the inference of a legal, origin of such enjoyment; first, because the dispute is between a landlord and his tenant, and, secondly, because for many year before the date of the alleged obstruction, the tank (the servient tenement) had been in the occupation of other tenants. To test the validity of these contentions, it is necessary to bear in mind that the Subordinate Judge has found, first, that the fields have been irrigated for more than half a century by means of water bailed out of the tank and carried to the site through defined channels; secondly, that after purchase of the interests of the Sets, the former landlords, on the 20 June 1891, the defendant let out the tank to the Adaks for two successive terms of seven years each, under leases dated the 8 January 1894 and the 13 October 1901, and, thirdly, that when the defendant re- excavated the tank in 1916, which up to that time had been used principally, if not almost exclusively, for irrigation purposes, he stopped the water channels so as to make irrigation impossible. The question is whether, upon these findings, which cannot be challenged in second appeal, the contention of the appellant can be maintained in either of its two branches.

(3.) As regards the first branch of the contention, it is well settled that, although a tenant cannot acquire a prescriptive right of easement in land belonging to his lessor, Mani Chande Chakerbutty V/s. Eaikanta Nath Biswas 29 C. 363 : 9 C.W.F. 856 and Basavanagudi Narayana Kamathy V/s. Lingappa Shetty 54 Ind. Cas. 943 : 38 M.L.J. 28 : 26 M.L.T. 439 : 11 L.W. 34 he may claim a right of easement based on immemorial user, as there is no reason why an owner of land should not grant any privilege he pleases to his tenant. The relationship of landlord and tenant does not render inapplicable the principle recognised by the Judicial Committee in Rajrup Koer V/s. Abul Hossein 7 I.A. 240 : 6 C. 394 : 7 C.L.R. 529 : 4 Shome L.R. 7 : 4 Sar. P.C.J. 199 : 3 Suth P.C.J. 816 : 4 Ind. Jur. 530 : 3 Ind. Dec. (N.S.) 257 (P.C.) namely, when enjoyment of a right of this description has continued uninterrupted for a long series of years, such enjoyment should be attributed to a legal origin, and the Court should presume a grant or an agreement. This view was adopted and applied in the case of Bhupendra Nath V/s. Armada Prosad 20 Ind. Cas. 597. There, a tank belonging to the landlord was situated in the midst of arable lands, and, as the surroundings indicated, was intended for irrigation rather than for bathing, drinking or culinary purposes. There were openings in the banks and well defined channels running from the tanks to the fields; and it was proved that from time out of memory the tenants had irrigated their lands with water from the tank. It was ruled that the inference could legitimately be drawn that the tenants had acquired an easement to irrigate their lands with water drawn from the tank, under a presumed grant. In support of this view reference was made to the judgment of the Judicial Committee in Ramessur Persad Narain Singh v. Koonj Behary Battuk 6 I.A. 33 : 4 C. 633 : 3 Sar. P.C.J. 856 : 3 Ind. Jur. 179 : 2 Shome L.R. 194 : 2 Ind. Dec. (N.S.) 402 (P.C.) The decision ( of, the Judicial Committee just mentioned had also been invoked, many years earlier and for the same purpose, by Sir Francis Maclean, C.J., in Madhub Dass V/s. Jogesh Chunder 30 C. 281 and the position is now generally recognised that in this country a tenant can establish his right to irrigate his field from his landlord's tank by proof of open and continuous user from time immemorial. This principle was applied in Babajanv. Ramjaddi Sheikh (4), Krishna Chandra Mandal V/s. Ram Sahay Khatritari 41 Ind. Cas. 577 : 2 P.L.W. 46 and Bayya Sahu V/s. Krishnachandra Gajapathy (11); see also Kristna Ayyan V/s. Vencatachella Mudali 7 M.H.C.R. 60 at p. 64. The case before us is clearly governed by this rule, and the first branch of the contention of the appellant cannot be supported.