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1922 Supreme(Cal) 336
CALCUTTA HIGH COURT
Chotzner, J., Asutosh Mookerjee, J.
Tinkori Pathak - Appellant
Versus
Ram Gopal Pathak & Ors. - Respondent
Decided On : 23-06-1922
Immorial user can establish a right of easement, and the unity of possession does not necessarily extinguish easements.
Headnote:
irrigation - Property Dispute - Indian Easements Act, Section 46 - The court discussed the immemorial exercise of a right of irrigation, the presumption of a grant, and the extinguishment and revival of easements. Key legal provisions include the principle that immemorial user can establish a right of easement, the impact of unity of possession on easements, and the circumstances under which easements may be revived.
Fact of the Case:
The dispute arose from a disagreement over the right to irrigate two fields with water from an adjoining tank. The plaintiff claimed a right to irrigate the fields from time immemorial, while the defendant, the landlord, denied this claim.
Finding of the Court:
The Subordinate Judge awarded the plaintiffs a decree in respect of one field, but the defendant appealed to the Court. The Court found that the plaintiffs had established a right of easement based on immemorial user and allowed the cross-objection, granting relief in respect of the additional field.
Issues: The main issues were the validity of the plaintiffs' claim to irrigate the fields from the tank, the impact of the landlord-tenant relationship on the right of easement, and the effect of the landlord's purchase of the tenancy on the right of irrigation.
Ratio Decidendi: The court held that immemorial user can establish a right of easement, even between a landlord and tenant. It also found that the unity of possession did not extinguish the right of irrigation, but rather momentarily suspended and revived it.
Final Decision: The appeal was dismissed, and the cross-objection was allowed, granting relief to the plaintiffs in respect of the additional field.
JUDGMENT
1. The litigation which has culminated in this appeal is the result of a dispute in respect of the right to irrigate two fields with water drawn from an adjoining tank. The tank is described in schedule "ka' attached to the plaint, while the two fields are comprised within boundaries set out in schedules 'kha' and 'ga' attached to the respectively. The plaintiff's claimed a right to irrigate the fields, as they and their predecessors had done from time immemorial. The defendant, who is the proprietor of the village, is the landlord of the plaintiffs and the owner of the tank. He denied that the fields had been irrigated from time immemorial, and further pleaded that the alleged user, even if established, could confer on the plaintiff's a right enforceable against their landlord, specially as for many years past the tank had been in the occupation of other tenants. As regards the field in schedule 'ga' he took the further defence that the right of irrigation, even if it ever existed in fact and in law, had been extinguished by his purchase of the tenancy at a sale for arrears of rent. The Court of first instance dismissed the suit. Upon appeal, the Subordinate Judge has modified that decision and has awarded the plaintiffs a decree in respect of the field in schedule 'kha' only. The defendant has appealed to this Court and has contended that the decree of dismissal made by the Trial Court should not have been disturbed. The plaintiffs have presented a memorandum of cross-objection and have argued that the claim should have been decreed in respect of the field in schedule 'ga' in addition to the field in schedule 'kha'.
2. In support of the appeal by the defendant, the twofold ground has been urged that immemorial exercise of a right of irrigation does not, in the present case, justify the inference of a legal, origin of such enjoyment; first, because the dispute is between a landlord and his tenant, and, secondly, because for many year before the date of the alleged obstruction, the tank (the servient tenement) had been in the occupation of other tenants. To test the validity of these contentions, it is necessary to bear in mind that the Subordinate Judge has found, first, that the fields have been irrigated for more than half a century by means of water bailed out of the tank and carried to the site through defined channels; secondly, that after purchase of the interests of the Sets, the former landlords, on the 20th June 1891, the defendant let out the tank to the Adaks for two successive terms of seven years each, under leases dated the 8th January 1894 and the 13th October 1901, and, thirdly, that when the defendant re-excavated the tank in 1916, which up to that time had been used principally, if not almost exclusively, for irrigation purposes, he stopped the water channels so as to make irrigation impossible. The question is whether, upon these findings, which cannot be challenged in second appeal, the contention of the appellant can be maintained in either of its two branches.
3. As regards the first branch of the contention, it is well settled that, although a tenant cannot acquire a prescriptive right of easement in land belonging to his lessor, Mani Chande Chakerbutty v. Eaikanta Nath Biswas 29 C. 363 : 9 C.W.F. 856 and Basavanagudi Narayana Kamathy v. Lingappa Shetty 54 Ind. Cas. 943 : 38 M.L.J. 28 : 26 M.L.T. 439 : 11 L.W. 34 he may claim a right of easement based on immemorial user, as there is no reason why an owner of land should not grant any privilege he pleases to his tenant. The relationship of landlord and tenant does not render inapplicable the principle recognised by the Judicial Committee in Rajrup Koer v. Abul Hossein 7 I.A. 240 : 6 C. 394 : 7 C.L.R. 529 : 4 Shome L.R. 7 : 4 Sar. P.C.J. 199 : 3 Suth P.C.J. 816 : 4 Ind. Jur. 530 : 3 Ind. Dec. 257 (P.C.) namely, when enjoyment of a right of this description has continued uninterrupted for a long series of years, such enjoyment should be attributed to
