JATINDRA NATH MALLICK Vs. SATYA KINKAR SAIN

JUDGEMENT

(1.) This is an appeal preferred by some of the defendants and arises out of a suit commenced by the plaintiff for a declaration that the defendants have no right to draw water from a tank known as Manna tank for irrigating the several plots of land described in schedule (Kha) of the plaint. There was a further prayer for a permanent injunction restraining the defendants from using the water of the said tank for purposes of irrigation.

(2.) The plaintiff's allegations in substance are that the tank known as Manna Pukur, which is recorded as Dag No. 1212 in the settlement records was a khas tank of the landlords, and was never let out to a tenant on any previous occasion. In course of time it silted up and became almost dry. In 1333 B. S., the plaintiff took lease of the tank from the landlords in the benami of defendant 27, and in 1337 B. S. he excavated the tank and made it deeper at certain places. In 1340 B. S. the defendants took water from the said tank in the absence of the plaintiff and without his knowledge. They however expressed regret and the plaintiff did not take any further steps in the matter. But in 1341 B. S. they again took water, despite the plaintiff's objection which necessitated the institution of the present suit. The defence was that the defendants and their predecessors have been using water of the said tank from time immemorial, peacefully, continuously, uninterruptedly and as of right and had thereby acquired easement rights. The O.S. records, it is said, represented the true state of affairs and the plaintiff's story that the tank had become dry, and no rights of irrigation were exercised in respect of the same was not true. The trial Court substantially believed the defence version, and passed a decree dismissing the main prayers of the plaintiff. In view however of his finding that the plaintiff had re-excavated some portions of the tank and made it deeper, the Munsif allowed the defendants to draw water up to a certain limit only, no rights being given over the portion which the plaintiff had re-excavated. Against this decision there was an appeal taken by the plaintiff to the lower Appellate Court. The Sub-Judge who heard the appeal, modified the decision of the Munsif on material points. The lower Appellate Court was of opinion, that from the evidence adduced on the side of the defendants, a presumption of immemorial user might be made, which would give rise to a presumption of lost grant. The Court held however that with regard to the plots, which were situated to the north and west of a pathway described in C. S. Dags No. 431 and 1124, this presumption would not arise, as these plots could not be irrigated from Manna tank without cutting a channel across the public pathway, which would amount to a public nuisance. In this view of the case, the Court of Appeal below gave the plaintiff a decree with regard to all the plots of land which were situated to the west of Dag No. 431, and to the north and west of Dag No. 1124. With regard to the remaining plots, between which and the tank in suit, the pathway did not intervene, the defendants were given a, declaration of their irrigation rights, but these rights were to be exercised without digging any pit or channel, by the process which was known as melan in the locality.

(3.) It is against this decision that the present second appeal has been preferred. Mr. Das who appears in support of the appeal has assailed the propriety of the decision of the lower Appellate Court substantially on three grounds. He does not dispute the proposition of law, that no prescriptive right could be acquired to commit a public nuisance; but what he says, in the first place, is that in the present case the right that is claimed by the defendants, is claimed not on the basis of prescription but on a presumption of lost grant. He has argued in the second place that when the O. S. records, have recorded irrigation rights, in respect of the plots which lie to the north and west of the pathway, it must be presumed that the grant of irrigation rights was anterior to the commencement of the pathway, and the grant of the pathway was made subject to the irrigation rights. Lastly, it is said that the pathway was not a public highway but a mere village road, and any obstruction of the same would not amount to public nuisance, and would not repel a presumption of a lost grant. The first contention of Mr. Das cannot in my opinion be of much assistance to his clients. It is true that rights could be acquired by fiction of a lost origin, where, as in the present case, they could not be acquired by prescription. But no presumption of legal origin is possible when the circumstances are such that no lawful grant could be made. As was observed by Lord Loreburn L. C. in Harris v. Earl of Chesterfield (1911) AC 623 the principle of lost grant is itself based on good sense. The lapse of time gradually effaces records of past transactions, and it is certainly not proper, that people should be dispossessed from the property which they and their predecessors had been enjoying from time immemorial simply because they cannot prove as to how it originated. It is for this reason that law makes the presumption that the original acquisition is lawful, unless it is shown that the grantees-could not lawfully acquire that right or the-facts show that it could not be acquired in. the way which the law allows.