A tenant cannot claim easement right against another tenant under the same landlord by prescription but can claim on the basis of implied grant.

N. C. MUKHERJI, J.

( 1 ) THIS is an appeal against the judgment and decree passed by Shri A. K. Nandy, Subordinate Judge, Asansol, dated 13th May, 1971, in Title Appeal No. 63 of 1970 modifying those of Shri T. B. Deb, Munsif, 2nd court, Asansol, dated 30th May, 1978 in Title Suit No. 144 of 1968.

( 2 ) THE plaintiff is the appellant in this court. The plaintiff brought a suit for establishment of title, permanent and mandatory injunction. The suit arises out of a dispute in respect of a drain leading to a tank of the defendants from a village pathway passing over the lands of the plaintiff. The plaintiff is the owner of plot No. 412 on which the plaintiff's residence is situated. On the north-west of this plot there lies a tank on C. S. plot No. 414 belonging to the defendants. There is a nullah arising from the village 'coolie Rd. ' in the south west of plot No. 412 passing over plot No. 412 leading to the tank in plot No. 414. The water of the tank dries up in summer and in order to keep sufficient water the defendants wrongfully and illegally excavated this nullah on 11-6-68 and in order to divert the natural flow from north to south by placing an embankment on the road for taking water to the newly constructed nullah on plot No. 412. In spite of repeated protests, the defendants did not pay any heed. If the defendants are allowed to take water through the said nullah, then the residential house of the plaintiff will be damaged and the plaintiff will suffer irreparable loss.

( 3 ) THE defence is that the tank on C. S. plot No. 414 and C. S. plot No. 412 both belonged to Maharaja of Cossimbazar. The water of the tank is being used for irrigation as well as for household purposes from time immemorial. The surplus water of the village and the highlands to the north during rains flows along the village Coolie path and enters into the tank through the disputed nullah. The water has been entering into this tank through the nullah since time immemorial as this is the only inlet for entering water into the tank. Rameswar Mukher, the predecessor of the defendants by implied grant from the Maharaja acquired an easement right to draw water along the said nullah and to fill the tank. The defendants have also acquired an additional right of easement by prescription to carry water along the said nullah. The learned Munsif, on a consideration of the facts, circumstances and the evidence on record, was of opinion that the defendants failed to prove that the disputed nullah was in existence from time immemorial or at least for the period of last 20 years. In that view of his finding, the learned Munsif decreed the suit. Being aggrieved, the defendants preferred an appeal before the learned District Judge. The appeal was heard by the learned Subordinate Judge, who, however, found that the defendants could prove acquisition of right of easement by prescription and as such, the learned Subordinate Judge allowed the appeal in part. The plaintiffs were granted only a decree for khas possession of the disputed land, subject to the enjoyment of easement right by the defendants. The prayer for injunction, both mandatory and prohibitory, was disallowed. Being aggrieved, the plaintiffs have come up to this Court.

( 4 ) MR. P. N. Mitter, learned advocate appearing on behalf of the appellant, raises a very important question of law. It is contended that both the plaintiffs and the defendants are tenants under the same landlords and that being so one tenant cannot claim easement right against another. In this connection. Mr. Mitter also submits that the learned Munsif rightly found on evidence that the defendants failed to prove acquisition of right of easement by prescription and the learned court of appeal below was wrong to reverse that finding. In support of the proposition of law indicated by Mr. Mitter, Mr. Mitter relies on some decisions. The 1st case referred to by Mr. Mitter has been reported in (1902) ILR 29 Cal 363 (Mani Chandra v. Baika

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