BHABADEB CHATTERJEE Vs. BHUSAN CHANDRA MUKHERJEE

JUDGEMENT

(1.) The plaintiff claims the use of the water in the defendant's lank for bathing and other purposes. His claim has been upheld.

(2.) The argument on behalf of the appellant has been rested very largely upon considerations arising upon the English authorities relative to the law of easements, prevailing in that country, though it is indeed conceded that the word in its use ink. 26 of the Indian Limitation Act, as shown by the explanation in Section 2 is wider than the meaning of the word in English Law and, would include at least a profit a prendre. In cases of this character-attention has been directed by the Judicial Committee to the danger of proceeding necessarily upon English authorities. In Bhola Nath Nandi V/s. Midnapore Zemindary Co 31 C. 503 : 31 I.A. 75 : 8 C.W.N. 425 : 14 M.L.J. 152 : 8 Sar. P.C.J. 611 (P.C.), a case of villagers claiming a right of pasturage, Lord Macnaghten said: "It appears to their Lordships that on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the Court finding a legal origin for the right claimed. Unfortunately, however, both in the Munsif's Court, and in the Court of the Subordinate Judge, the question was overlaid, and in some measure obscured, by copious references to English authorities and by the application of principles or doctrines more or less refined, founded on legal conceptions not altogether in harmony with Eastern notions". I am of opinion that the present case does not in fact fall to be decided upon a question of easement arising under Section 26 of the Limitation Act, and it does not follow that, because the plaintiffs may fail to show their right to relief on that ground, they are, therefore, entitled to no relief and the suit must fail. As pointed out in Rajrup Koer V/s. Abul Hossein 6 C. 394 : 7 C.L.R. 529 : 7 I.A. 240 : 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.), the object of the Statute was to make more easy the establishment of rights of this description; but it is remedial, and neither prohibitory nor exhaustive, and it does not exclude or interfere with other modes of acquiring easements. Clearly, therefore, it is open to the plaintiff to show, if he can, that he is entitled to a right which may be of that nature although not actually within the strict meaning of the term. It is argued that the Court ought not to make out a case for the plaintiff which he has not made himself, and that the plaintiff in this case has grounded his case on easement and must, therefore, succeed upon that or not at all. From an examination of the plaint, however, which has been placed before us it is clear that though mention is made of the plaintiff's claim as upon an easement, it is also said to be based on customary right, and in any case what the plaintiff has done substantially is to plead the facts and ask for such relief as he may be entitled to. There is nothing unreasonable in the right claimed, which is one. without which in this country probably village life could not go on. From the long continued user which has been proved in the present-case it is reasonable to presume a dedication of the tank to those uses. As pointed out in Rajrup Koer's case 6 C. 394 : 7 C.L.R. 529 : 7 I.A. 240 : 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.) the up- holding of such a right does not mean that the owner is shut out altogether from improving or dealing with his property. An instance where a right of this nature was upheld is to be found in Channanam Pillay V/s. Manu Puttur 1 M.L.J. 47.

(3.) For these reasons I think the appeal must be dismissed with costs. Chakravarti, J.