UPENDRA NATH GHOSH Vs. BHUSAN SAHANA

JUDGEMENT

(1.) The plaintiffs prefer this appeal. They sued to obtain a declaration of their right to take water from the defendant's tank for the purposes of irrigation and for orders directing the defendants to abstain from obstructing them.

(2.) The defendants denied the existence of the right and said that the plaintiffs had never been in the habit of taking water from the tank, and that they could not acquire any right by prescription against the defendants, as they were both the tenants of the same landlord. Another defence was that if the right existed at all it was confined to three plots immediately adjoining the tank and that the plaintiffs by breaking down an ail on the further side of those plots had increased the area to which water would flow and had thereby added to the burden and in consequence forfeited the right altogether. Defect of parties was also pleaded.

(3.) The learned Munsif found that the suit was not bad for defect of parties and that the plaintiffs had proved long user from which an origin in grant could be inferred but he held that the right was limited to the three western plots only: he did not accept the argument that the plaintiffs had forfeited the right by trying to extend it to the plot on the east. On these findings he gave the plaintiffs a partial decree.