JUDGMENT

Caspersz, J. - The plaintiff is the Maharaja of Hill Tipperah. He also owns what the plaint describes as "a vast zemindari" that is Chakla Roshanabad in the British District; of Tipperah. The suit giving rise to this second appeal was brought by the Maharaja to have his zemmdari title declared in respect of a tank and its banks and for khas-possession and masne profits. In the alternative, plaintiff claimed to have the lands assessed with fair rent. The defence was that the tank had been niskar (rent-free) since the time of the defendant's ancestor in virtue of a sanad chati dated the 14th Magh 1259 (26th January 1850), granted by the pre-decessor of the plaintiff.

2. The first Court dismissed the suit on the ground of limitation; and, on appeal, the District Judge has arrived at the same conclusion.

3. The plaintiff appeals. This is one of many appeals involving the same question, the light to assess the niskar tanks in the Chakla. We have heard the arguments in this appeal and in Maharaja Birendra Kishore Manikya Bahadur v. Bilwar Ali 13 Ind. Cas. 517; Asalat Khan v. Maharaja Birendra Kishore Manikya Bahadur 13 Ind. Cas. 519; Maharaja Birendra Kishore Manikya Bahadur v. Roshan Khan 13 Ind. Cas. 517 which may be regarded as test cases, the result of which, it is said, will govern both the other connected appeals pending in this Court as also the thousands of suits and appeals that are awaiting disposal in the lower Courts in the district of Tipperah and Noakhali.

4. It is argued for the plaintiff-appellant that the sanad chiti amounted to a mere license to re-excavate the silted up tank, and it was revocable by the grantor or at all events by his successor-in-interest; that the tenant never set up any hostile title to, or adversely possessed, the land of the tank, and that the suit was instituted within 12 years from the 25th May 1896, the date of the final publication of the Record of Rights prepared under Chapter X of the Bengal Tenancy Act.

5. The duty of zemindars to maintain the tanks on their zemindaris was plainly pronounced by their Lordships of the Privy Council in the Madras Railway Co. v. The Zemindar of Carvetinagaram 1 I.A. 364 : 14 B.L.R. 209 : 22 W.R. 279: "The tanks are ancient, and formed part of what may be termed a national system of irrigation, recognised by Hindu and Muhammadan Law, by Regulations of the East India Company, and by experience older than history, as essential to the welfare, and, indeed, to the existence of he large portion of the population of India. The public duty of maintaining existing tanks, and of constructing new ones in many places, was originally undertaken by the Government of India, and upon the settlement of the country has, in many instances, devolved on zemindars, of whom the defendant is one. The zemindars have no power to do away with these tanks, in the maintenance of which large numbers of people are interested, but are charged, under Indian Law, by reason of their tenure, with the duty of preserving and repairing them."

6. The facts of the case from which these remarks are quoted are different from those now under consideration, but the relative rights and obligations of the present parties are similar. The plaintiff, a Hindu Raja, should be slow to depart from the ancient laws and customs regulating the supply of water for the necessary purpcs9s of his tenants. The Maharaja did not maintain the tanks in the Chakla; consequently, they silted up, and were re excavated by the tenants concerned under sanad chitis one of which has been produced by the defendant respondent. This sanad provides that the tenant having applied for re excavating the ancient, and unclaimed tank called Nasir Muhammad, an Amin was appointed to ascertain the area and boundaries thereof; that the area was ascertained (2 kanis 2 gands 2 karas 2 krant) of the four banks; that this chiti was granted in ordsr that the tenant should construct embankments on the former sites of the embankments of the tan