JUDGMENT
Wort, Actg. C.J.
1. This is an appeal by the defendants in an action in which the plaintiffs claimed a declaration that they were entitled to irrigate their village in the manner to which I shall in a moment refer. The action was undefended in the Court below. The defendants filed a written statement and asked for an adjournment of the hearing but not, succeeding in this application they took no further part in the proceedings. A subsequent application was made to set aside the judgment and decree. That also having failed, there was no appeal and consequently that matter his now been finally disposed of. There was an application made to this Court to be allowed to adduce evidence which the defendants state they were unable to adduce in the Court below but this was not pressed. The Fard abpashi of defendants village was not produced, the plaintiffs agreeing to allow the defendants to produce the Fard abpashi of their village;
2. The plaintiffs are the purchasers of the birit rights in the village Jabdi, the plaintiffs Nos. 5 and 6 being the representative tenants who joined in the action under Order 1, Rule 8, Civil Procedure Code. The defendants’ village is known as Beheri. It is situate on the banks of the river Rangi to the north and east of the plaintiffs’ village. The defendants are therefore riparian proprietors as regards the Rangi river and a part of the plaintiffs’ village abuts on to the river but with that part we are not concerned in this action; we are concerned with the more northerly part of the village which is bounded on the east by the defendants’ village, thus shutting off the plaintiffs’ village from the river Rangi and it is also bounded on the north byBeheri. The defendants are also biritdars, as regards Beheri.
3. The plaintiffs’ case is that from time immemorial thev erected a bandh in the river Rangi at the northeastern corner of the defendants’ village, revisional survey plot No. 808 and the water thus collected proceeds through a ditch which the plaintiffs made in revisional survey plot No. 807. The water coming through this ditch leads into the pyne plots Nos. 805 to 814. They then proceeded to erect a bandh at plot No. 91 and through a system of pynes irrigating their village to the south. The village Jabdi to the north is also irrigated through a system of pynes. The defendants in the exercise of their riparian rights have erected a bandh on the river near plot No. 722. The water flows eventually through pyne No. 718 and into pyne plot No. 814, which I should have stated was a pyne belonging to the defendants. There was another bandh between the two mentioned, that is the plaintiffs’ and the defendants’ erected towards the north-east of plot No. 761. This was, about 1913, a kutcha bandh and was a method of assisting the irrigation through the system of pynes to which I have already referred of the defendants’ village. This was done by a Mr. Ammon who was the manager of the thikadar of the Beheri village and part of the plaintiffs’ case is that this hutch a bandh was erected with the consent of the thikadar who was then in possession of the plaintiffs’ village. The plaintiffs claim to irrigate their village from this pyne plot No. 814 not only with the water collected there as a result of the erection by them of the bandh in plot No. 108 but also with the water in pyne No. 814 as a result of the erection of the two bandhs by the defendants which I have mentioned. That is to say, they claim the use of the surplus water in pyne No. 814 after the defendants have irrigated their village. There was a letter produced in the case which was written in 1913 by Mr. Ammon which has given rise to some controversy before us.
4. There are one or two facts which it is important to notice and about which there is no dispute; first that the fall is from the north to the south, that is to say the water entering the pynes of the defendants’ village would flow through their village towards the south and eventually into the pyne No. 814 and then if allowed to proceed through the southern part of the defendants’ village and into the plaintiffs’ village; that the northern part of the. plaintiffs’ village could not be irrigated artificially other than by the system which the ‘plaintiffs set up in their case. This latter fact is admitted by the defendants although from the revisional survey map it would seem that the river system formed either by the main river Rangi or its tributaries would lead one to suppose otherwise. The Fard abpashi of Beheri village discloses the system of irrigation from the Rangi river but the Fard abpashi of the plaintiffs’ village gives no particulars of any method of irrigation and the plaintiffs’ case was that when the defendants discovered this omission they began to interfere with the rights of the plaintiffs. With regard to the facts constituting the alleged interference by the defendant of the plaintiffs’ right there is no dispute. We are therefore concerned; only with the question of whether the plaintiffs by their evidence have established that the Fard abpashi is erroneous with regard to its silence on the question of the alleged irrigation rights of the plaintiffs. Being undefended of course there was no cross-examination of the plaintiffs’ witnesses. [His Lordship dealt with the evidence and proceeded]. In the state of the evidence I agree with the learned Subordinate Judge that the plaintiffs have established that their system of irrigation from time immemorial has been as they allege.
5. The plaintiffs’ case as framed in the plaint and as argued before the learned Subordinate Judge was based on prescription. It is however admitted by the learned Advocates who appear on behalf of the parties in this Court that the two villages at one time were held by the same proprietor and it was contended by the defendants that as the parties were merely biritdars they were merely tenants and that one tenant could not prescribe against another. The actual position of the parties is not established. Whether there was a reversion in the proprietors placing the plaintiffs and defendants in the position of tenants has not been shown. Had that position been established I think it would be necessary for me to hold that as there could not be a prescription by one tenant against another tenant of the same landlord the plaintiffs’ case would have to fail. An alternate case of a presumption of a grant or reservation of a right was argued on the basis of the admitted fact that at one time there was unity of possession. But apart from the admission as to unity of possession there is no evidence as to whether the conveyance of the plaintiffs’ village was first in point of time necessitating a presumption of a grant or whether the conveyance of defendants’ village was prior to necessitating the implication of a reservation, nor is there any evidence as to whether the system of irrigation set up by the plaintiffs came into existence during the unity of possession.
6. In my opinion therefore the plaintiffs’ case must rest on a prescriptive title. In a case such as the present, where there is evidence of long enjoyment of the village in a particular way, it is the habit and duty of the Court, so far as it lawfully can, to clothe the fact with right: See Fry, J., in Moody v. Steggles (1879) 12 Ch. D. 261 : 48 L.J. Ch. 639 : 41 L. 25. I would therefore come to the conclusion that the irrigation of the plaintiffs’ village in the manner alleged was by virtue of an easement granted by defendants’ predecessor in title to the plaintiffs. The Subordinate Judge has ordered the pynes to be restored to their former level of which there is no evidence. In the circumstances therefore the case will go back to the Subordinate Judge for the purpose of ascertaining the level (by appointing a Commissioner if necessary) at which the defendants’ village can be irrigated and which will give effect to plaintiffs’ right to use the surplus water for the purpose of irrigating their village. In other respects the decree will stand and the appeal will be dismissed with costs.
Kulwant Sahay, J.
7. I agree.