A customary right of irrigation can be established by evidence of long enjoyment, and such a right is presumed to have been exercised as a matter of right until the contrary is shown.

1. In the suit out of which this appeal arises the plaintiffs asked for a declaration of title and confirmation of possession with regard to 13 bighas 16 kathas and 10 dhnrs of land comprised in plots 101 to 105 of Ichata No, 43 of village Baijapur Fakir. Plaintiffs 1 to 3 are 12 annas proprietors of the tauzi in which the disputed land is situated. Defendant No. 10 is the proprietor of 4 annas share. Plaintiff No. 4 is said to be the settles of he disputed land from defendants 1 to 3. Plot No. 102 is recorded! in the survey khatian as a pokhar having an area of 10 bighas 10 kathas 10 dhurs and plots NOS. 101,103 and 104 are recorded as bhindas of the pokhar. Khata No. 43, in which these plots are included, is recorded as gair-raazrua-malik. The suit was instituted against the defendants under the provisions of Order 1, Rule 8, C. P. C.

In other words, the defendants have been sued as representatives of the villagers of Baijapur Fakir, Damodarpur and Baijapur Keso. The case of the defendants was that there was a customary right of irrigation from the disputed pokliar for about 400 bighas of land. The defendants also pleaded a customary right of catching fish. The trial court found that the plaintiffs had proved their title to the disputed land and the defendants had also proved that they exercised the right of irrigation openly for a long time, but the finding of the trial court was that the exercise of the right of irrigation was not as a matter of right and the right also was not reasonable.

The Trial Court accordingly gave a decree to the plaintiffs declaring their title and granting recovery of possession of the disputed land. But the lower appellate court affirmed the decree of the trial court on slightly different grounds. The lower appellate court held that the defendants had not established the right of irrigation from time immemorial but the view of the lower appellate court was that from about the year 1920, after the publication of the record-of-rights, the defendants have exercised the right of irrigation openly and to the knowledge of the plaintiffs. The lower appellate court held also that the right was reasonable, but the claim of the defendants was negatived on the ground that there was no proof that the defendants exercised their right of irrigation as a matter of right.

2. On behalf of the defendants, who have presented this appeal, the learned Government Advocate submitted, in the first place, that the lower appellate court has committed an error of law in holding that the defendants have not exercised the right of irrigation for a period of about 30 years, from the year 1920 "as of right". We think that this argument is well founded and must be accepted as correct. On behalf of the appellants reliance was placed upon two decisions of this High Court, Nazir Hussain V/s. Aulad Haider, AIR 1926 Pat 460 and Radha Kishun V/s. Sunder Mal AIR 1934 Pat 11.

In Nazir Hussains case, AIR 1926 Pat 460, it was pointed out by a Division Bench of this High Court that the rule is well established in England that a party enjoying an easement acted under a claim of right until the contrary is shown, and the English rule also applies to India in this respect. The same principle has been expressed by a Division Bench of this Court in a later case, AIR 1934 Pat 11. It was held in that case that when there is evidence of long enjoyment in a particular way, it was the habit of a particular court, so far. as it lawfully could, to clothe the fact with right. In laying down this proposition of law the learned Judges relied upon the decision of Fry, J, in Mody V/s. Steggles, (1879) 12 Ch D 261. It is important to notice that this case related to irrigation right, and the plaintiffs brought the suit for a declaration that they were entitled to irrigate their village in a particular manner. It was held by the High Court that evidence of long enjoyment of irrigation should be attributed to the easement granted by the defendants p