RANGAPPA NAICKER Vs. APPALA RAJA

JUDGEMENT

(1.) Two portions of the argument addressed to us call for notice.

(2.) Firstly, the learned Subordinate Judge has dealt with plaintiffs right to put up the disputed dam as a matter of limitation, relying on Krishna Aiyar v. Secretary of State for India 4 Ind. Cas. 1070 : 5 Ind. Cas. 121 : 33 M. 173 : 6 M.L.T. 306 : 20 M.M.L.J. 71and other cases to the effect that proof of twelve years enjoyment will transfer the harden of proof to the defendant. But those are cases of limitation, not of prescription; and the latter is in question here with reference to an easement or customary right. There is no question of a plea of lost grant. The lower Appellate Court, therefore, had to find for sixty years enjoyment if plaintiffs were to succeed. We must now call on it to submit a finding on the question, whether enjoyment of the alleged right to erect a dam has been established for that period.

(3.) Next, the District Munsif found that the removal of the dam caused no material diminution in the supply of plaintiffs lands. This finding was disputed by plaintiffs in first appeal, but was not dealt with in the lower Appellate Court s judgment. We think that Robert Fischer v. Secretary of state for India 2 Ind. Cas. 325 : 32 M. 141 : 19 M.L.J. 131 : 5 M.L.T. 149 governs the case and that a finding on the point is necessary before the lower Appellate Court s decision in plaintiffs favour can be sustained. The lower Appellate Court must, therefore, find on the issue whether the removal of the dam caused material diminution in plaintiffs supply.