The extent of an easement based on a lost grant must be determined with reference to the probable intention of the parties to the grant or agreement and the purpose for which the grant was imposed or acquired.

( 1 ) THIS is an appeal by the plaintiffs and is directed against the decision of Sri B. M. Ray Chaudhury, learned Subordinate Judge, Birbhum dated 15-11-1948, affirming the decision if Sri Durgadas Bose, Munsif, 1st Court, Bolpur, dated 28-2-1945.

( 2 ) THE suit out of which this appeal has arises was for a declaration of the right of easement viz. , to exercise the right of irrigation from a reservoir called Kanai Chowdhury's Bundh and described in schedule Ka to the plaint and for certain other reliefs. The right of irrigation is claimed in respect of the plots mentioned in schedule Kha of the plaint, the servient tenement being the reservoir described in Schedule. Ka includes three cadastral survey plots being Dags Nos. 13,108 and 110. Plots 13 and 110 are said to be the watery portion of Kanai Choudhury's Bundh, the embankment being C. S. Plot No. 108. The plaintiffs' allegation is that the right of irrigation was being exercised from time immemorial by certain channels existing at the south-east and the north-east corners of the bed of the said tank. The plaintiff's claimed a right of irrigation by presumption of a lost grant. It is necessary to state the prayers in the plaint which run as follows: (a) that the three plots is Schedule Ka be declared to form part and parcel of Kanai Choudhury Bundh; (b) that plots Nos. 13 and 110 be declared to be the reservoir and the plaintiff's right of irrigation in respect of the land in schedule Kha with the water of the reservoir be declared; (c) that the defendants be restrained from converting any portion of the lands in schedule Ka into arable land or to transform it by making 'nullas' or digging pits or in any other manner or to interfere with the exercise of the plaintiffs' aforesaid right of irrigation; (d) that a mandatory injunction be issued against defendants Nos. 9 and 10 to restore the 12 or 13 bighas on the North of plot No. 13 to their former condition; and that a prohibitory injunction restraining those defendants from cultivating the area be issued.

( 3 ) SEVERAL written statements were filed by different sets of defendants. It is necessary to set out the written statements of defendant Nos. 1 to 3, the principal contestants in the suit. The defendants' case is that plot No. 13 is 'puratan Patit' (ancient waste) and was so recorded at the time of the Cadastral Survey operations; that there was a clear line of demarcation between this land in plot No. 13 and the 'jalkar' situated and lying in plot No. 110. On these pleas several issues were raised. The learned Munsif decreed the suit in part and gave certain declarations to which I shall advert hereafter. Against the decision of the learned Munsif the plaintiffs took an appeal. The learned Subordmate Judge who heard the appeal maintained the decision of the learned Munsif.

( 4 ) THE findings reached by the learned Subordinate Judge are that the entire C. S. Dag 13 is covered by the boundaries of Kanai Choudhury's Bundh; that at one time the two C. S. Plots 13 and 110 formed one vast tract so as to form one and single reservoir; that the reservoir was never re-excavated within living memory with the result that the borders of plot No. 13 towards the North and West gradually silted up and consequently became dry; that the accumulation of water in the eastern portion of plot No. 13 is not accidental and that some portion of plot No. 13 is normally submerged under water during the rainy season; that during high rains, water of the reservoir swells and possibly reaches the eastern, northern and southern limits of C. S. plot No. 13; that the right of irrigation has been exercised from a time beyond human memory and that the plaintiffs other than plaintiffs 6, 9 and 35 acquired the right of easement under lost grant in respect of plots of schedule Kha other than those stated in the judgment; that all the plaintiffs other than plaintiffs 6, 9 and 35 have the right of irrigation; and that the suit is liable