S. N. BHATTACHARJEE, J.

( 1 ) THIS appeal has been preferred against the judgment and decree dated 16-12-1980 passed by the first appellat Court in Title Appeal No. 455 of 1980 reversing the judgment dated 4-8-1980 passed by the Munsif, 2nd Court, Contai in Title Suit No. 67 of 1970.

( 2 ) ). The grand father of the plaintiffs purchased 8 cottahs 6 chittaks of land out of plot Nos. 2480, 2477, 2486 and 2490 from the father of the defendants by a registered kobala dated 24-9-1917 stipulating therein that the vendee would take water from the pond in Plot No. 2491 belonging to the defendant for the purpose of cultivation of plot No. 2489. The 'ka' schedule land which is a part 2490 plot is used as a passage for ingress and egress in plot No. 2489. the plaintiffs have been enjoying this right of taking water from plot No. 2491 as a right of easement for more than 20 years but the said right of easement in respect of plot No. 2491 has not been recorded in the R. S. record of right. Taking advantage of thisentry the defendants have been creating obstruction on the passage measuring 330 sq. links described in schedule'ka' of the plaint. The plaintiff filed Title Suit No. 67 of 1970 for recovery of khas possession in respect of 'ka' schedule land and declaration of easement right in plot No. 2491 as such the easement right has been acquired by prescription. The defendants denied the right of easement as claimed by the plaintiff. He has also denied that the plaintiff has ever used the 'ka' scheduled land as a passage at any point of time and the same is bastu land of the defendants where cowshed and tulsi mancha have been raised.

( 3 ) THE learned trial Judge held that the plaintiff has not been able to prove his easement right of taking water from the plot No. 2491 as such right was permissible in nature and no right of easement arose out of it. He also dismissed the plaintiffs' prayer for recovery of khas possession as the plaintiff has not prayed for mandatory injunction directing the defendants to demolish tulsi mancha of 'ka' schedule land.

( 4 ) IN appeal the first appellate Court reveresed the judgment of the trial Judge on finding that the plaintiffs have acquired right of easement by prescription independently of the contract for more than 20 years giving rise to right of easement by prescription and that the learned trial Judge fell in error in dismissing the plaintiffs' prayer for the Khas possession on the ground that the plaintiffs failed to make any prayer for mandatory injunction along with the prayer for khas possession.

( 5 ) THE substantial questions of law involving in this appeal have been formulated as under :- (I) "whether the 1st Appellate Court erred in law in holding that the plaintiffs have been exercising right of easement independently of the agreement. " (II) "whether the 1st Appellate Court was justified in holding that the plaintiffs have acquired right of easement over the suit tank by prescription. "both the points are taken up together from consideration as those are interlinked. The respondent in this case did not appear to contest the appeal despite service of notice. The Kobala which was withdrawn by him has not been produced. the appellate court quoted the recitals from the kobala in its judgment as under :-"it is revealed from the recitals of the kobala (ext. 4) that the father of the defendants granted right to the grand father of the plaintiffs to take water from the said pond for the purpose of cultivation of his Dhose land appertaining to plot No. 2489 and it is also inserted therein that neither he nor his successor-in-interest would ever raise any objection to the user of the said water of the pond by the grand father of the plaintiffs. "from this the learned appellate court has held as follows :-"but an agreement from which it appears that the right of enjoyment has been granted as an easement, not for a limited period or subject to any condition on the fulfilment of which it is to ceas

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