JUDGMENT
G.N. Prasad, J.
1. This second appeal has been preferred by plaintiffs who succeeded in the trial Court, but have lost in the lower appellate Court
2. The suit was instituted by the plaintiffs for a declaration that they had a customary right of irrigation of certain lands detailed in paragraph 9 of the plaint from a tank situated in village Eraitpur recorded in the revisional survey record of rights as plot No. 3149 appertaining to Gairmazrua khata No. 203 and having an area ol 7 bighas, 18 kathas and 18 dhurs. The plaintiffs alleged that they had been exercising such a right of irrigation from the water of this tank from time immemorial, without interruption, openly, peaceably and as of right for several 20 years and thus acquired a customary right of irrigation which was also recognised in the Fard Abpashi (Ext. 4) prepared during the revisional surevy operation alongwith usual village notes. The relevant entry in the fard Abpashi (Ext. 4) upon which the plaintiffs relied for their case, is to be found in the 7th column of the 9th serial No. of the document and the same bad been correctly quoted by the lower appellate Court in paragraph 23 of its judgment. In substance the entry is to the effect that paddy among Aghani crops and barley, wheat and grain among Rabbi crops ot Badhar Gehuana and Ghaur ke Kanhi, appioximate-!y 30 acres in area are irrigated from the water of this tank. In Column 8 the entry is to the effect that the wafer from the tank in question flowing into pyne No. 3012 towards the south and pyne No, 2643 towards the north-west is taken into the tenant’s fields by digging annas in the pyne at the appropriate place by means of Daurf and Daun without the Malik’s permission or paying any lagan to him for the purpose.
3. The right thus claimed by the plaintiffs was resisted by the defendant who claimed to be owner of the tank in her capacity as the lessee of the ex-landlords since 1948, and she denied that the plaintiffs or any of the villagers had ever exercised such a right of irrigation from her tank, a substantial portion of which has been in her cultivating possession and in other portions of which she has been rearing fish and singhara. With regard to the rights mentioned in Fard Apbashi (Ext, 4) the case of the defendant was firstly that the entry was fraudulent, collusive and forged and secondly that it did not record any right which the plaintiffs sought to claim in the present suit.
4. As already stated, the trial Court decreed the plaintiffs’ case as laid, holding that the plaintiffs had been irrigating their lands from the water of the tank through the connecting pynes for over lorry years, continuously, peaceably and without any interruption or consent of the landlord. In regard to the settlement made with the defendant in 1940 the trial Court held that it was ineffective in face of the right which had accrued in favour of the plaintiffs.
5. The lower appellate Court upon & reivew of the evidence on the record came to the conclusion that the plaintiffs have failed to prove that they had been exercising the alleged right of irrigation from time immemorial in the English sense of the word and that the plaintiffs have failed to prove that any of the lands mentioned in paragraph 9 of the plaint had been irrigated by taking water from the tank in question. With regard to the entry made in the’ fard Apbashi (Ext. 4) the lower appellate Court held that it was incorrect and that even upon the entry as it stood, the right claimed by the plaintiffs’, could not be substantiated. Being aggrieved by the decision of the lower appellate Court the plaintiffs have preferred this second appeal.
6. Mr. Kailash Roy appearing in
support of the appeal, made it clear that he would not plead for declaration of any customary right or irrigation from the tank in question in favour of the plaintiffs. Learned counsel pointed out that upon the averments contained in the plaint it ought to have been held that the true nature of the legal right which the plaintiffs were claiming, was a right of easement though under a wrong impression of the legal position the plffs. had described the said right in the plaint as a customary right of irrigation. Learned counsel relied particularly upon the 7th and the 9th paragraphs of the plaint and the relief portion thereof for the purpose of showing that the plaintiffs had pleaded all the elements which are requisites for a right of easement. It is quite clear that the Courts below were not called upon to adjudicate upon the alleged right as a right of easement. In fact, the 6th issue framed in the case, was also to the effect as to whether the plain-tiffs had acquired any customary right of irrigation. It is, manifest, therefore, that it is here for the first time in second appeal that the plaintiffs are seeking for a declaration of a right of casement. A reference to the plaint shows that the suit was not framed as one in respect of a right of easement. Section 26 of the Limitation Act as it stood in 1959 when the present suit was instituted provided that the right mentioned therein, must have been exercised not merely as of right but also as an easement, and since there was neither any
averment nor any issue on the question of easement, it is manifest that no finding oa the point could have been recorded: by either of the Courts below.
7. In this context it would be relevant to refer to a Bench decision of the Calcutta High Court in the case of Gopal Krishna Sil v. Abdul Samad Chaudhuri, AIR 1921 Cal 569, where it was observed as follows:–
“…,… .When the plaintiff sets up
a prescriptive right, he cannot in fairness to
the defendant be allowed to succeed on the
basis of a customary right. The two are
fundamentally distinct, for as has been
well said, custom is the making of a law.”
The present is a converse case, in that the
right set up in the plaint, was one of the
customary right of irrigation which un-j
doubtedJy is fundamentally distinct from a
prescriptive right of irrigation. ‘
8. Referring to the aforesaid Calcutta and other decisions it was held by Kanhaiya Singh, J., in the case of Raj Nandan Singh v. Ramkishun Lohar, AIR 1958 Pat 571, that a customary right exists, independent of any dominant heritage and is vested in a defined class or community of a particular locality, as distinguished from individuals for their sole benefit. I am inclined to think, therefore, that at (his late stage it is not open to the plaintiffs to ask the Court to investigate a new case, namely, cue of easement.
9. However, even if it may be examined whether it was at all possible for the plaintiffs to set up a case of easement the conclusion must of that the plaintiffs could have no case. Here it is necessary to refer to the case of Manichander Chukerbutty v. Baikanta Nath Biswas, (1902) ILR 29 Cal 383, where it was held that a tenant of land, even having a permanent right of tenancy on the land cannot acquire an casement by prescription in. other land of his lessor. The reason for the decision will be found at page 366 of the report where it has been observed: “. . . . but still a tenant is always a tenant and never an owner of the land. He always derives his rights, from the lessor, and as the latter cannot have the right or enjoyment of an easement as of right against himself, so neither can his tenant against him,”
10. On this decision being
brought to the notice of Mr, Roy he was
unable to cite any authority which could persuade me to take a different view of the legal position. It must follow that even in a case of easement the plaintiffs are not entitled to suecoed in the present action.
11. There appears to be another hurde in the way of the plaintiffs to which elaborate reference is to be found in the judgment of the lower appellate Court. I have already given a substance of the relevant entry in the Fard apbashi (Ext. 4).
The entry is clear to the effect that the right of irrigation recorded therein enures for the benefit of lands situated in Ge-hauna Badhar and Chour Ke Kanhi. The lower appellate Court has pointed out it and it has not been shown to me to be wrong that there is no evidence whatsoever on the record to indicate that any o£ the lands mentioned in paragraph 9 of the plaint lie within Gehuana Badhar or Chour Ke Kanhi. On the other hand, the lower appellate Court has pointed out that some Or the plots mentioned therein lie in an entirely different Badhar known as Baro-khara. This is what the lower appellate Court has observed in paragraph 29 of its judgment which runs as follows:–
“……Then there is no khatian to
Indicate that any of the plots of para No. 9 which satisfy the test of their situation according to Ext. 4 that they are in this Ba-dhars name in Ext. 4. There is no evidence to prove that they are in any of the Ba-dhars which are indicated in Ext. 4. Thus, there is lacuna of this evidence on plaintiffs side. So I find no merit in the finding of the learned Munsif that at least the plaintiffs named in the plaint have right of Irrigation for their lands mentioned in para 9 of the plaint in the state of evidence discussed above- Hence, this finding cannot be accepted and upheld and consequently the same set aside. This finding alone is sufficient for setting aside the judgment and decree of the learned Munsif without lengthening the judgment by detailed discussions on other evidence. Of the parties.”
In face of the above rinding of the lower appellate Court which as I have already said, has not been shown to me to be wrong, hardly any other question arises for decision in this case.
11. Mr. Kailash Roy, however, contends that the decision of the lower appellate Court with respect to the exeiv cise of the right of irrigation on the part Of the plaintiffs, as deposed to by the defendant’s witnesses, is not in accordance with law inasmuch as the lower appellate Court has totally lost sight of certain admissions of p. Ws. 1, 9 and 10 upon which the trial Court had relied for coming to the finding in favour of the plaintiffs case. I have looked into the evidence Of D. Ws. 1 and 9 and I find that the alleged admission in their evidence referred to by the trial Court are not existing therein. In his examination-in-chief D. W. 1 stated in clear terms that the members of the public never irrigated their lands by means of Done, Dekni etc., and they did not make, any Anna in the tank. In his cross-examination he gave the dimensions of the tank and after mentioning other details he said that he was unable to say whether any Anua or pyne would be found, at the spot by inspection if now held. After the witness gave this answer he was
cross-examined with respect to five other tanks in the village and then he said–
“Had there been water there irrigation can be done from such 2 tanks. Paddy and Rubi crops are irrigated from such tanks. My lands in that Badhar are irrigated from tanks.
I have attained hosh at the age of 8/10. I have been seeing the irrigation from those 2 tanks since my hosh. Out of them one is bigger and one is smaller tank.
There are big tanks in the east of the village. Further east is field and further east is a tank and then the village Kuhura begins another small tank is in the north east corner of the village. To the north of it is Bhit land and on the east paddy growing land. Big tank measures 7 bignas and small tank measures 2/3 bighas. Out of other 3 tanks one is used for bathing and 2 others are used for throwing nuisance and for washerman.
There are anuas in the tanks used for irrigation. There are 3 anuas in the big tank and got no pyne.
Water flows to village Jugatia through the irrigating pynes at Piluee. Jagatia is known as Baleshwara in village Papers. I do not know of any criminal case by Sham Kishore Narain against Raghu Koeri. There is no other Baburam son of Shaling Mahto besides myself in the village.”
It is quite clear to me that in the above extract of the deposition of D. W. 1 there was no reference at all to the tank with which we are concerned in the present case. Quite clearly, the Mal Court was in error in reading an admission of D. W. 1 in his evidence.
12. Coming to the evidence of D. W. 9 all that I find in the cross-examination is that there are two pynes in existence at the spot; one on the south and the other on the north west corner in the tank. North-west corner pyne extends upto 5/6 bighas of lands and southern pyne extends upto village Jagatia. He further said that there are paddy lands on both sides of the pynes and that irrigation work is done from pyne water without interruption. D. W. 9 has nowhere said that the villagers take water direct from the pyne by setting anuas on any portion of the tank. The right about which D. W. 9 deposed, is the right of setting up Anuas at the appropriate places in the pynes and not in the tank. This is perfectly in accord with the entry in the fard abpashi (Ext. 4) which also speaks of the right of setting up anuas in the pyne and not directly in the tank. Evidently, what is meant is that the tenants are entitled to irrigate their lands by setting up anuas in the pynes whenever water is available in the pynes which may either he rain water or overflow water from the tank.
That is a right entirely different from the right now claimed by the plaintiffs, namely, that of setting up Anuas in the tank itself for the purpose of drawing out water of the tank into the pynes and from there to their respective fields. The trial Court did not at all appreciate the true import of the evidence or D. W. 9. The third witness (D. W. 10) was the pleader commissioner who made certain statements with reference to a sketch map which he had prepared and appended to his report (Ext. B). D. W. 10 stated “four such alleged Anuas and one partly are pointed within the tank and three such Anuas are pointed outside the tank on the east side.” I fail to see how this can be of any avail to the plaintiffs for the purpose of proving that the alleged right in the tank had been exercised by any of them for a requisite period of 20 years. It is necessary to point out here that the defendant has been the owner of the tank since October, 1940, and, therefore,, in 1959 when the present suit was instituted, the plaintiffs could not possibly have acquired a prescriptive right of easement, for the simple reason that prior to the settlement in favour of the defendant no right of easement could possibly have existed in the property.
13. In my judgment, no ground has been made out for interfering with the decision of the lower appellate Court, and this appeal fails and it is accordingly, dismissed with costs.
