Ramanuj Kundu vs Baranashi Dutta

Renupada Mukherjee, J.—This appeal arises out of a suit instituted by the two Plaintiffs-Respondents for declaration of their easement right of irrigating certain lands in a particular manner and for compelling the Defendants to remove some obstructions which had been placed in C.S. plot No. 610 impeding the passage of water from an irrigation tank to the lands of the Plaintiffs.

The suit was contested only by Defendant No. 1, who denied the right of irrigation claimed by the Plaintiffs and contended that there was no drain for passage of water as claimed by the Plaintiffs and that he had not obstructed the course of any such drain. The suit of the Plaintiffs was dismissed by the trial court, which held that the Plaintiffs had not got the right of irrigation which was claimed by them. The Plaintiffs preferred an appeal and the lower appellate court allowed the appeal and decreed the suit of the Plaintiffs making a declaration that they had got an easement right of irrigating their lands by flowing water through a channel or drain described in the plaint. The Defendants were directed to restore this drain to its former condition. This second appeal has been preferred by the Defendant No. 1 from the above judgment and decree of the lower appellate court.

In order to understand clearly the point in controversy it would be necessary to state the, following facts. The settlement map of the locality would show that there is a tank which has been surveyed in C.S. plot No. 514, which goes by the name of Barabundh. The Plaintiffs-Respondents have got several culture- able plots at some distance to the south of the tank. These plots bear C.S. dags Nos. 600, 605 and 606 of Mouzd Kukribasa. In between the tank of C.S. plot No. 514 and the last mentioned plots of the Plaintiffs-Respondents there are several C.S. dags, including dag No. 610, which admittedly belongs to the Appellant of this appeal. The case of the Plaintiffs-Respondents was that there is a well denned channel or drain from the above mentioned tank leading up to their land and this drain passes through a portion of C.S. dag No. 610. The Plaintiffs'' case further was that they bailed out water of the above tank and carried it to their plots through the above channel for the purpose of irrigating the plots, but the principal Defendants obstructed this channel particularly where it passes through C.S. plot No. 610. It appears from the plaint that the Plaintiffs-Respondents claimed the right of irrigation of their lands not only by bailing out water from the tank in C.S. dag No. 514 but also by means of surplus rain water of the locality which flowed through the above mentioned drain or artificial channel. This'' right of the Plaintiffs-Respondents was totally denied by the Appellant. I have already stated that the suit of the Plaintiffs was dismissed by the trial court but the decree was reversed on appeal.

As I understood the pleadings of the parties and also in view of the evidence adduced by the parties in the trial court. I think that the right claimed by the Plaintiffs Respondents was really a prescriptive right founded upon the user of the water of the tank in C.S. plot No. 514 for upwards of 20 years by bailing out the same through the channel or drain, a part of which is said to have been obstructed by the principal Defendants. This was the main right which was claimed by the Plaintiffs in the trial court. There is of course, another statement that the surplus or overflow water of the surrounding lands used to pass through this drain to the plots of the Plaintiffs because the lie of the field is that the field gradually slopes from the north to the south. In my opinion, the Plaintiffs'' claim to have the surplus water of the field through the drain in question is only a subsidiary claim, the main claim being the right if irrigating his plots by bailing out water from the tank called Batabundh through the drain or channel mentioned in the plaint.

The suit of the Plaintiffs-Respondents was dismissed by the trial court mainly on the ground that the Plaintiffs, who are lower heritors, cannot claim the surplus water of the upper region as a matter of right. The lower appellate court seems to be of opinion that there was a confusion in the mind of the trial court as to the nature of the right claimed by the Plaintiffs. After Mr. Mukherjee had placed the judgment of both the courts before me, I am of opinion that there is a good deal of substance in this observation of the lower appellate court. I have already said that the main right claimed by the Plaintiffs-Respondents was the right of irrigating his fields from the water of the tank surveyed in C.S. dag No. 514 by bailing it out and causing it to flow through a well-defined channel or an artificial drain. Such a right can be founded upon easement. It was the definite case of the Plaintiffs- Respondents that water from the tank in question had been bailed out by them in this manner for upwards of 20 years prior to the obstruction of the drain by the principal Defendants. Upon an examination of the evidence on record, the lower appellate court held that this allegation of the Plaintiffs-Respondents had been substantiated.

Mr. Mukherjee, appearing on behalf of the Appellant, submitted before me in the first place, that the Plaintiffs'' lands constituted a servient tenement being situated at a lower level and so they did not acquire any right to insist on the continuance of discharge of the surplus rain water from the upper region to the lower. In support of this contention Mr. Mukherjee relied on two cases, one of which is Aftab Choudhury and Ors. v. Asokhadeen (1913) 18 C.L.J. 131 and another Bimalanand Chakravarti and Ors. v. Chandra Kant Chakravarti (1913) 19 C.L.J. 40. In my opinion, the facts of this case are completely different from the facts of the above mentioned cases, because in those cases what was claimed by the Plaintiffs was a right to overflow water only When such a right is claimed by the owner of a land of lower level, the land of the higher level must be regarded as a dominant tenement. Needless to say that the oner of a servient tenement does not acquire any right as against the owner of the dominant tenement to continue the discharge of surplus rain water. In this case, as I have already said, surplus water of the rainy season is claimed only by way of a subsidiary claim. The main claim put forth by the Plaintiffs-Respondents is the right to bail out water of the tank in C.S. plot No. 514 through the disputed drain for the purpose of reaching the water to their plots for irrigating them. That drain passes through the lands of several persons including C.S. dag No. 610, which belongs to the Appellant. If the Plaintiffs-Respondents have really got any right to take the water of the tank in this manner, than C.S.. plot No. 610 must be regarded as a servient tenement in reject of the Plaintiffs'' plots and not as a dominant tenement. That being the case, the right claimed by the Plaintiffs-Respondents in this suit is capable of being acquired by prescriptive user and as the lower appellate court has found as a matter of fact that such right of irrigation has been exercised and enjoyed for a period of more than 20 years, the right has been perfected by prescription and the Appellant has no right to obstruct that part of the drain which runs through his land, because such obstruction would mean an interference with the right of the Plaintiffs-Respondents. The first contention put forth by Mr. Mukherjee on behalf of the Appellant must fail.

The second and the only other contention put forth by Mr. Mukherjee was that in this case the drain is an artificial channel and the Plaintiffs-Respondents can claim the water of such a drain or channel only by grant or some arrangement and not by prescription. In support of this contention Mr. Mukherjee relied on the case (1879) ILR 4 634 (Privy Council) I am of opinion that the present case is not in any way covered by that decision because that case deals with a right to the enjoyment of water overflowing from an artificial reservoir through an artificial water course on the land of a neighbour who was the Defendant in the suit. The facts of the preset case case can "easily be differentiated from the facts of that case, because here the Plaintiffs-Respondents are not claiming any right to get the water flowing through the drain, but they are claiming a right to irrigate their lands by means of water which is to be bailed out from a tank which is an irrigation tank. Of course, that water is to be flowed through the disputed drain or channel. That is not. however, tantamount to say that the Plaintiffs-Respondents are claiming the overflow water flowing through the channel. This right is somewhat akin to a right of passage over some particular pathway. If such a right were incapable of being claimed save on the basis of grant or arrangement, then it would have been not only difficult but almost impossible to irrigate agricultural lands in West Bengal villages in the manner in -which they have been being irrigated from time immemorial. If the principles followed in the Privy Council case were to be extended to cases where a right of irrigation is claimed by a particular cultivator from some irrigation tank, then the inevitable result would be that only those persons who have got their lands on the border of the tank would be able to irrigate their lands and the cultivators possessing lands further off would be easily prevented from irrigating their lands by the persons possessing intervening lands. I, therefore, hold that the facts of the Privy Council case have got no application to the facts of the present case and as the Plaintiffs-Respondents are not really claiming any overflow water of any artificial channel but are claiming a right of irrigating their lands by taking out water from an irrigation tank through a well-defined channel, I am of opinion, that such a right is capable of acquisition by prescriptive user. As the lower appellate court has held that the Plaintiffs have succeeded in proving the user of the water of the tank in C.S. dag No. 514 in this manner for a period of more than 20 years. I am of opinion that a decree has been correctly passed in favour of the Plaintiffs-Respondents. The direction of the lower appellate court that the drain must be restored to its former condition by the Defendants is a proper direction and it does not call for interference. It may be that the Plaintiffs-Respondents would be able to enjoy the surplus rain water through this drain without possessing any such right if the drain is restored to its former condition, but that would not be any ground for allowing the Appellant to fill up or otherwise obstruct the drain which would necessarily mean an interference with the right of the Plaintiffs- Respondents to irrigate their lands from the water of C.S. plot No. 514.

Mr. Mukherjee, on behalf of the Appellant, submitted as a last resort that the case should be remanded to the trial court inasmuch as all material issues were not properly considered by that court. There is no ground for allowing this prayer, because evidence was fully gone into by the parties and a mis-appreciation of the real case of the parties by the trial court would not justify a remand. All the contentions urged on behalf of the Appellant having failed this appeal is dismissed with costs to the Plaintiffs- Respondents.

The disputed drain must be restored to its former condition by the principal Defendants, including the Appellant, within two months of this date.

Leave to file an appeal under Clause 15 of the Letters Patent is asked for and refused.