CHOTEY Vs. DAL CHAND

JUDGEMENT

(1.) This is the defendant's appeal and arises out of the following circumstances. The plaintiffs brought the suit for recovery of Rs. 600, as damages on the allegation that they had a right to irrigate four plots of land namely Nos. 2671, 2672, 2673 and 2674 with the water taken from a well situated in plot 2670, that they had grown potatoes in all the plots except plot 2671, that the defendants, without any rhyme or reason stopped the plaintiffs from Irrigating the potatoes field and that a loss was caused to the plaintiffs. The defence was that the well belonged to the defendants themselves, that the plaintiffs had no right to cultivate their lands with the water of the well, that the defendants themselves had been cultivating the four plots which are now in plaintiff's possession and that the plaintiffs were not entitled to recover any damages.

(2.) It will be noticed that the plaintiffs did not explain in the plaint what was the nature of the right which was claimed by them. The learned Munsif held that the plaintiffs right was in the nature of a customary right and decreed the claim for Rs. 300 only. There was an appeal by the defendants. The learned Subordinate Judge who heard the appeal, reduced the claim to Rs. 200, but otherwise dismissed the appeal. He found that on defendants own evidence and on the admission of one of the defendants himself the plots in question "had always been" irrigated with the water of the well in question. He modified the decree of the Court below and as regards costs, he directed that the plaintiffs should get their costs proportionate to their success throughout. As regards the defendants he directed that they should get one-half of the costs of the appeal from the respondents.

(3.) In this Court it has been contended that the Courts below have entirely missed the fact that the defendants themselves cultivated the plots 2672 to 2674 and irrigation by the defendants themselves with water from their own well Could not confer any right of easement on the tenant under whom the defendants cultivated the lands. It appears that the plots were the occupancy holding of two persons Bhola and Ramdei and the plaintiffs got those plots in 1926 by some sort of exchange with those people. If Bhola and Ramdei acquired a right of easement to irrigate the plots 2672, 2673 and 2674 with the water from the well situated in plot 2670, then alone the plaintiffs would be entitled to that right of easement. If it be true that the defendants themselves cultivated the three plots in question with the water from their own well, it will be a matter for consideration whether their act, although extending over more than 20 years, would confer on the principal tenants Bhola and Ramedi a right of easement as against the defendants themselves. This seems to be the most important point in the case but has been entirely missed by the Courts below. There is a cross-objection as regards costs filed by the plaintiffs. It will be time to look into the cross-objection when the whole appeal is decided. For the present, I propose to remit the following issues to the Court below for a finding. I may note that the first Court found that the well in plot 2670 belongs to the defendants and the lower appellate Court has not dissented from this finding.