The main legal point established in the judgment is the interpretation and application of the provisions of the Indian Easements Act, particularly regarding the extinguishment of easements by release, non-enjoyment for twenty years, implied release, and abandonment.

Wallis, J.

1. In dealing with this case the lower appellate Court has not sufficiently considered the provisions of the Indian Easements Act, under which an easement may be extinguished by an express or implied release, (Section 38) and also by non-enjoyment for twenty years (Section 47). The latter section distinguished between the case of continuous and discontinuous easementsa continuous easement being defined in Section 5, as one whose enjoyment is, or may be, continual without the act of man." It is well-settled that a drain is a continuous easement, see among other cases Pearson v. Spencer 1 B. & N.S. 571 : 7 Jur. (N.S.) 1195 : 4 L.T. 769 : 3 B. & S. 761 : N.R. 373 : 8 L.T. 166 : 11 W.R. 471, which expressly contrasts continuous easements, such as drains, with discontinuous easements, such as rights of way, also Pyer v. Garter 1 H. & N. 916 : 26 L.J. Ex. 258 : 5 W.R. 371, which has never been questioned on this point. In the case of continuous easements, the period of twenty years under the section begins from the day on which enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner. Under the sale-deed, Exhibit A dated the 1st April 1374, the plaintiff acquired the right to pass sewage as well as raise water through a sluice to be constructed in his compound at the point now in question, and he still has that right unless it has been released by him (Section 38), or extinguished by prescription (Section 47). The lower appellate Court has found that the plaintiff cannot rely on Exhibit A in the absence of satisfactory proof that she was exercising and enjoying the right of passing sewage water on to the defendants land at the paint in question. This is not a finding either that it has been released or lost by prescription and cannot be accepted as dispasing of the suit. The defendants plea in the written statement was that it has not been the mamool to pass sewage water in this way, that such a right had not been exercised for twenty years, and that the plaintiff had recently enlarged the opening through which rain water used to pass to make it carry sewage water. There is no plea on evidence that enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner, which could support a finding that the easement was lost by prescription under Section 47 of the Easements Act, nor is there any plea that there was an implied release under Section 38, as to which the Explanation II to the section must be borne in mind, that mere non-user of an easement, that is to say, non-user standing by itself without other evidence of abandonment, is not an implied release within the section, as to which see Seaman v. Vawdrey 16 Yes Jun. 390 : 10 R.R. 207. No defence is shown and the decree of the lower appellate Court must be reversed and that of the District Munsif restored with costs here and the lower appellate Courts.

Krishnasawmy Aiyar, J.

2. The suit is for an injunction to restrain the defendants from obstructing the flow of water from the drain in the plaintiffs land into the defendants lane. Both the plaintiffs land and the defendants lane originally belonged to a common owner. The plaintiff and the defendants have become owners of their respective grounds by purchase. In the sale-deed of 1874 by the common owner to a predeces3or-in-title of the plaintiff, it was provided that the used water and rain water of the site sold, should be made to flow to the street through the sluice to be constructed in the compound wall opposite to the passage." The Subordinate Judge finds, and we are bound to accept his finding in second appeal, that there is no reliable evidence to show that the plaintiff was enjoying and exercising the alleged right, but there is reliable proof that she was not doing so." He observes also that "there is no reliable and satisfactory evidence to show that the provision (alone quoted from Exhibit A) was ever given effect to or the said light was eve