JUDGMENT
Rampini and Pratt, JJ.
1. The only question raised in this appeal is as to whether the defendants, being tenants of the plaintiffs, can claim a right of easement in respect of the water, fish and earth of the tank in dispute.
2. The Munsif disallowed the claim of the defendants, because a tenant cannot acquire a right of easement against his landlord. The Subordinate Judge decided that the defendants had acquired the easement in question. He said: ” When a tenant has no right to the land which he occupies, he cannot claim prescriptive right over the servile tenement, inasmuch as he has no right to the dominant tenement itself. But the defendants in this case are osat talukdars, having a proprietary interest in the dominant tenement. Consequently, they are entitled to claim right of easement over the land in the khas possession of plaintiffs.”
3. The plaintiffs appeal. The first point that calls for observation in this case is the fact that the defendants, in their written statement, never claimed any right of easement at all. In paragraph 7 of their written statement they claimed, not a right of easement over the tank, but a fourth part of the tank, on the ground of adverse possession for twelve years. It does not appear how this claim came to be converted into one of a right of easement. But it was so converted, for we find the third issue framed by the Munsif is: “Have the defendants Nos. 1 to 5 any prescriptive right by user in the enjoyment of the water, fish and earth of the tank in dispute?”
4. This issue, it would seem to us, did not arise on the pleadings. The Subordinate Judge has not cited any authority for his view, that it is only when a tenant has no right to the land which he occupies that he cannot claim prescriptive right over the servient tenement, inasmuch as he had no right to the dominant tenement itself, and it is to be doubted whether he has correctly expressed what he really meant. A tenant has always a right (i. e., a right of tenancy) in the dominant tenement. What the Subordinate Judge probably meant is that when the tenant has no right of ownership in the dominant tenement, then he cannot acquire a right of easement over the servient tenement. Then he goes on to say or rather to imply that when ho has a right of ownership, then he can acquire a right of easement. He adds that the defendants in this case being osat talukdars have a proprietary interest in the dominant tenement.
5. The Subordinate Judge’s views on these points would seem to us to be incorrect. A tenant never can have a right of ownership in the dominant tenement as long as he continues merely a tenant of it, and the defendants, as’ osat talukdars of (he tank, cannot, be said to have a proprietary interest in it.
6. The Easement Act does not prevail in Bengal. We have therefore to decide this case on general principles and on case law. Now, the general rule undoubtedly is, as said by the Munsif, that a tenant of land cannot acquire an easement by proscription in other land of his lessor; see Goddard on Easement, 5th Edition, p. 249. This principle has been recognized as applicable to India in the two cases referred to by the Munsif, viz., Udit Singh v. Kashi Ram (1892) I. L. R. 14 All. 185. and Jeenab All v. Allabuddin (1896) 1 C. W. N. 151. The learned pleader for the respondents contends that in neither of these cases were the tenants osat talukdars or tenants having permanent rights of tenancy. That is quite true, but in neither of the cases is there to be found any authority for the views propounded by the Subordinate Judge. The respondents’ pleader cites the cases of Sonetkooer v. Himmut Bahadoor (1876) I. L. R. 1 Calc. 391. and Nilmadhab Sikdar v. Narattam Sikdar (1890) I. L. R. 17 Calc. 526. as showing that tenants with permanent rights have very extensive rights in the lands forming the subject of their tenancies. This no doubt is the case, 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 nave the right of enjoyment of an easement as of right against himself, so neither can his tenant against him. There Is therefore not only no authority for the view of the Subordinate Judge, but it is inconsistent with the principle that underlies the acquisition of easements.
7. We therefore decree this appeal with costs and set aside the decree of the lower Court so far as it gives the defendants a right of easement against the plaintiffs in respect of the water, fish, and earth of the disputed tank.
8. The cross-appeal is not pressed and is dismissed.
