BEPIN BEHARY GHATAK Vs. RAMNATH GHATAK

JUDGEMENT

(1.) In this case the main contention that has been advanced on behalf of the plaintiffs- appellants is that the defendants have acquired no right of easement by the temporary user of water flowing through an artificial channel and in support of this contention reliance was placed on the case of Arkwright V/s. Gell [1839] 5 M. & W. 203 and the case of Kena Mahomed V/s. Bohatoo Sircar [1863] Marshall's Rep. 506.

(2.) Now, the facts involved in this appeal are briefly these : The plaintiffs alleged that there was a dahar (low sunken pathway) contiguous on the east of their Dags Nos. 3032 and 3033 and that during the rainy season there is an overflow of the water of this dahar over Dags 3032 and 3033 towards the west, that in 1328 the defendants out the northern ail of Dag 3033 and thereby forced the overflow water to their lands on the north. The plaintiffs alleged that the defendants had no right to take the water in this manner to their lands.

(3.) The defendants case was that, during the rainy season the water from the dahar passed into Dag 3033 through one of the katans in the nala on the south of it, that the water then passed through a katan at station No. 6 in the northern ail of 3033 through a nala on the western boundary of Dag 3032 and thence into the land of one Provas Ghose and thereafter into Dag No. 3057 belonging to the defendants. They contended that they had done this for many years and had acquired a prescriptive right to cut the northern ail of Dag 3033 and take water into their Dag No. 3057 and other lands towards the north-west of Dag 3033.