A right of easement can be acquired by lost grant when a person is found in possession of land for a long time, under an assertion of title without challenge, and when the acquisition of title by prescription could not be established.

G. K. MISRA, J.

( 1 ) PLAINTIFF filed the suit for permanent injunction restraining the defendants from obstructing the flow of "kharipani" from the village lane, to the plaintiff's land through the channel marked A. B. in the map attached to the plaint and directing them to reopen the said channel. Plot No. 735 in village Surda covering an area of 2. 46 acres is a mal variety of land belonging to the plaintiff. Plot No. 736 with an area of 3,64 acres is Goda land recorded in the names of the ancestors of the defendants and is in possession of defendant-1. Plot No. 736 is to the contiguous west of plot No. 735, Plot No. 668 is the village lane. On either side of this village lane houses are situate. Plaintiff's case is that for more than 40 years the rain water from the village Basti on the village lane in plot No. 668 flows towards the west and goes to plot No. 735 through the channel AB. The channel was constructed by the ancestors of the plaintiff. The water after flowing through plot no. 735 passes to plot No. 737 and thereafter to a river lying to the west of plot no. 737. The ancestors of the plaintiff checked the flow of rain water on plot No. 668 at a place to the further west of point A and that the plaintiff and his ancestors have been enjoying the 'kharipani' as an easement and as of right without interruption for more than 20 years. On 8-10-1955 defendant-t filled up the channel and diverted the 'rharipani' to his own plot 736 in consequence of which the plaintiff's crop had been damaged. Plaintiff's request through the intervention of the punches to the defendants not to interfere with his right failed.

( 2 ) DEFENDANTS 1 and 2 filed a joint written statement. The flow of "kharipani" on the village lane is not disputed. The main assertion of the defendants is that the "kharipani" first enters into plot 736 at many points and spreads over it. After covering different portions of the land, the excess water enters into plot 735. The existence of the channel AB is denied. Plaintiff's allegation that on either side of the village lane in plot 668 are houses is not denied. Defendants plead that there is no Mela shown as AB, but about 3 to 4 years back the plaintiff, without the consent of the defendants, made an opening at point B to take away the "kharipani" to his land. Plaintiff's claim to right of easement was accordingly challenged.

( 3 ) IT is to be noted that the bone of contention between the parties on the pleadings covers a very narrow point. The configuration of the land and the location

of the houses on either side of the village lane in plot No. 668 are not disputed. Defendants also did not raise any contention that the "kharipani" coming on the village lane was the surface water. On the contrary, the flow of "kharipani" in the village lane was not disputed. The entire dispute of the defendants, as presented in the written statement, was regarding non-existence of the channel ab for over 40 years, as averred in the plaint. As the dispute was confined to this narrow point, Issue No. 2 was framed! as follows :-

"whether there was any channel over plot No. 736 and whether the plaintiff can claim any prescriptive right to take Kharipani to his plot No. 735 through the alleged Nala. "

Issues 1 and 3, quoted below, were merely formal ones : issue No. 1 : - Whether there is any cause of action for the suit? issue No. 3 : - To what relief, if any, is the plaintiff entitled?

( 4 ) ON full analysis of the evidence, both the courts have concurrently found that the channel AB existed for more than 40 years on plot No. 736. The learned Munsif dismissed the suit holding that the Easements Act was not in force in Gangpur state prior to the merger on 1-1-1948 and that the Limitation Act was in force in gangpur State from 1-1-1939, and, as such, the plaintiff was not entitled to a declaration of his right of easement under any of the Acts.

( 5 ) THE learned Additional Subordinate judge, while agreeing with the learned mu