Sheikh Abdul Ghani and Others vs Harnam Singh and Others

Dawson-Miller, C.J.—This appeal arises out of a suit instituted on behalf of the plaintiffs to enforce a right to irrigate certain lands lying within their estate with water from a tal situated within the adjoining lands of the defendants. It is the plaintiffs'' case that they have enjoyed this right for a great number of years and that within recent years the defendants have obstructed their right and they claim a declaration and damages for the loss sustained by them by reason of the obstruction.

In order to understand the effect of the decision of the learned Subordinate Judge now under appeal, which found that the plaintiffs had acquired a right by a presumed grant some time in the past apart altogether from the mode of acquisition referred to in Section 26 of the Limitation Act, it is necessary to refer shortly to some of the salient facts proved in the case. The estates of the plaintiffs and the defendants adjoin each other and they both form part of Mouza Malaon. That village was held in joint ownership until the year 1870 and the tal in question had undoubtedly existed long before that time, and there can be no doubt, upon the facts found, that this tal which is one of considerable size had been used for the purpose of irrigating not only the lands in its immediate vicinity but certainly the whole or some portion of the lands which are now in the exclusive possession of the plaintiffs. In fact there is a karha leading from the lands of the defendants into the lands of the plaintiffs, which is found to have existed for a great number of years and which obviously could only have served the purposes of carrying water from the tal in question into the lands now held by the plaintiff. At the partition in 1870 the plaintiffs, obtained a takhta bearing Tauzi No. 5589, whereas the lands of the defendants lie in an adjoining takhta bearing Tauzi No. 5591. It is within the lands of the defendants takhta that the tal is situate.

There was evidence to show that from the year 1870 right up to the year 1905, when the defendants first acquired by purchase an interest in Tauzi No. 5591, this right of taking water from the taI in the defendants lands through channels, for the purpose of irrigating the plaintiffs'' land, had been exercised. A comparatively old man called. Gobardhan Bind, who had resided for the last 40 years at the place in question, said that during that time he had seen the plaintiff''s takhta being irrigated with water from this tal, and that evidence is accepted by the learned Subordinate Judge. It follows therefore that up to the time when the defendants first acquired an interest in the property which they now hold, a right to irrigate their lands from the tal in question had been exercised by the plaintiffs. In 1905 some friction appears to have occurred. The defendants, the new purchasers, seem to have made some attempt to stop the plaintiffs'' right of irrigation, and in 1906 an agreement was entered into between the parties whereby the plaintiffs'' right to irrigate their lands was to continue and a now water channel was to be cut from the south-west of the tal leading into the old water channel which had been in existence for some years. This was to be carried out at the expense of both parties and a small rental of Rs. 12 a year was to be paid to the defendants for the use of the water.

What subsequently happened is perhaps not very clear, but it appears that the new water course was not in fact constructed at the expense of the parties, but it also appears that there was a provision in the agreement that until this was down the plaintiffs should be entitled to irrigate their lands from the tal by any such means as might be arranged between the parties. So that the right at all events appears to have been recognized at that date; but it is unnecessary in this case to complicate the matter by reference to that agreement or the terms thereof, because it is the case of both parties that it was not acted upon, and neither party in this case relies upon it. They both had in fact at some earlier period, repudiated it.

Although some attempt was made, as I have stated, in 1906, to interfere with the plaintiffs'' right, according to the findings by which we are bound, the plaintiffs did manage to get water from this tal without any further serious interruption up to the year 1912. The finding of the learned Subordinate Judge upon that matter is to this effect: "The next point that incidentally arises is if the right of the plaintiffs has become barred by limitation, they not having exercised it since 1912 as appears from the fact that plaintiffs'' lessees had to bring a suit in 1912 it would be improbable that after the withdrawal of that suit the defendants allowed the plaintiffs, water from the tal for irrigation of their fields. I do not think that there is sufficient evidence on the record of this suit to show the obstruction of the right before 1912." There is therefore a clear finding that there was obstruction of the right in 1912 and that there was no real obstruction of the right before that date.

Upon these facts it was contended by the defendants that the claim for an easement, which is the claim in this case, must fail, by reason of the provisions of Section 26 of the Indian Limitation Act. That section provides for the acquisition by peaceable enjoyment, without interruption for a period of 20 years of a right of easement either in a water course or in any other matter, but if one is claiming a right given under that section then you have to prove that the right has been exercised for 20 years and that there has been no interruption of the right at any period further back than two years before the commencement of the suit. In other words, you have got to prove uninterrupted enjoyment ending not later than two years before the commencement of the suit and extending not less than 20 years back from that time. It was contended therefore that the interruption having taken place in 1912 the present suit must fail. In answer to that the plaintiffs rely upon the decision of their Lordships of the Judicial Committee in the case of Rajrup Koer v. Abdul Hossein [1881] 6 Cal. 394. It was pointed out by Sir Montagu Smith in that case, in delivering the judgment of their Lordships, that the acquisition of the right of easement referred to in Section 26 of the Act is not the only method of acquiring a right of easement, and that the section is not exhaustive; and if you have acquired a right of easement by any other method, such as by a grant either proved or implied, then Section 26 can have no operation to a suit brought to enforce such a grant. It is pointed out in the judgment there delivered that "the object of the statute was to make more easy the establishment of rights of this description (that is, rights of easement) by allowing an enjoyment of 20 years, if exercised under the conditions prescribed by the Act, to give, without more, a title to easements. But the statute is remedial and is neither prohibitory nor exhaustive. A man may acquire a title under it who has no other right at all, but it does not exclude or interfere with other titles and modes of acquiring easements." It then goes on and deals with the facts in the case and points out that there was abundant evidence, upon the facts found by the Courts, for presuming the existence of a grant at some distant period of time and having come to the conclusion that, on the facts of that case, a grant at some time or other, between 20 and 60 years earlier, may be presumed, it was decided that Section 26 of the Limitation Act had no application to the case. In dealing with the evidence from which such a grant may be presumed the judgment proceeds as follows: "This being an artificial pyne constructed on the land of another man at the distant period found by the Courts, and enjoyed ever since, or at least down to the time of the obstruction complained of, by the plaintiff and his ancestors, any Court which had to deal with the subject might and indeed ought, to refer such a long enjoyment to a legal origin, and under the circumstances which have been indicated to presume a grant or an agreement between those who are owners of the plaintiff''s mahal and the defendant''s land by which the right was created. That being so, the plaintiff does not require the aid of the statute and his right, therefore, is not in any degree interfered with by the provision in the 27th section, upon which the Munsif decided. I ought to point out that the Act which Sir Montagu Smith in that judgment was referring to was the Limitation Act of 1871, Section 27; but that section is for all material purposes similar to Section 26 of the present Act. In the present case upon the evidence which I have referred to the features are not unlike the features in the case to which I have just referred. The learned Subordinate Judge found, accepting the evidence of long user from 1870 down to 1912, with a slight interruption in 1905, that the plaintiffs predecessors'' and afterwards the plaintiffs'' use of the water may be attributed to some implied grant made long ago, but some time after the partition in 1870. In my, opinion, if there was evidence to support a grant made after the year 1870, the learned Judge acting upon the principle referred to in the case of Rajrup Koer v. Abdul Hossein [1881] 6 Cal. 394 was perfectly justified in finding in favour of the plaintiffs and the only question which remains is; Was there in this case any evidence which would justify the learned Judge in arriving at his conclusion? There undoubtedly was evidence from which it might be found that there had been an uninterrupted user for a great number of years, certainly more than 20 years before the defendants had any interest in the property at all; and although it is unnecessary for us to say at what conclusion we should have arrived upon the evidence before the Court, and indeed we have not the evidence before us in second appeal, still it appears from what has been said by the learned Judge in his judgment that there was some evidence to support his finding. He is the ultimate judge of fact in such a case and I do not think that in the particular circumstances of this case we would be justified in saying that there was no evidence to support his finding. The result in my opinion, is that the case is one concluded by the findings of fact, and this appeal must be dismissed with costs.

Macpherson, J.

I agree.