The judgment establishes the limitations of natural rights of drainage and the requirements for establishing a prescriptive easement under the Easements Act.

Kinkhede, A J C—The appellant is a malguzar owning some sir and khudkast land in the village known as Katurli and the defendants, at least some of them, are the malguzars of the same mauza. That mauza is divided into three mahals. The dispute relates to the plaintiff's right to drain off the bed of a tank bearing old No. 221-2, new No. 293 lakh situate in shamlat mahal No. 3 through its sluice A so as to discharge superfluous water remaining after the irrigation of the dhan crops is over, over the defendants' lands lying at the base of the tank, in order that the bed once submerged under water may be utilized by him for sowing kathan crop thereon. The malguzars defendants, who deny the plaintiff's right, are said to have caused obstruction to him in the year 1923, in the exercise of his right to so drain off and discharge the said water, and thus prevented him from using portions of the bed, namely, 2.25 acres out of sir plot No. 292 of mahal No. 2 and 2.20 acres of khudkast No. 293-1kh of mahal No. 3 for the said purpose of sowing kathan crop, and thereby caused him loss to the extent of Rs. 100. Hence this suit for injunction and damages against the smalguzars defendants, and others who acted in concert with them.

2. The defence need not be detailed here, but it is sufficient to state that the case of the malguzars defendants 1 and 2, is that plaintiff cultivates the bed of the tank as it dries up, i.e., such portions only as get dried in the ordinary course by the water being used up in irrigating the dhan crops, and that he has no right to drain off and discharge the water on their land for drying up the bed.

3. The first Court held that plaintiff failed to prove any right entitling him to break open the sluice at A for draining off and discharging the superfluous contents of the tank through it, on the defendants' land, in order that the dried bed may be available to him for showing the kathan crop. The plaintiff's suit was accordingly dismissed and his appeal to the District Judge's Court has also met with the same fate. The District Judge has in a careful judgment dealt with the nature of the right set up by the plaintiff from the point of view of its being either a natural right or a prescriptive right. As to the third position taken up before him, namely, of the right being a customary right he held that plaintiff did not base his right on custom, and that the plea could not, therefore, be entertained for the first time in appeal.

4. The plaintiff has come up in second appeal to this Court. At the very outset, I must remark that the District Judge was perfectly right in overruling the plaintiff's contentions based on an alleged custom, as he did not plead it specifically on the trial Court. This disposes of grounds 3 and 8 of this appeal.

5. As to the right being either a natural one or one acquired by prescription which forms the subject of the rest of the grounds of appeal, I think, the concurrent findings of fact of both the Courts to the effect that plaintiff failed to prove it, is fatal to the success of this appeal.

6. The lower appellate Court has very carefully discussed the evidence both oral and documentary; and arrived at the conclusion that the evidence on record does not go the length of proving that plaintiff was entitled to open the sluice A in order to free the surface of the bed of the tank represented by Nos. 292 and 293-lkh or even No. 293/2 from the volume or expanse or sheet of superfluous water with a view to dry it up and utilize the same for sowing the kathan or winter crop therein. From the fact that plaintiff used to cultivate varying areas in different years, that Court was perfectly justified in drawing the inference of fact which supported the defence, that plaintiff sowed kathan crop only on so much of the bed as got dry and was not under water, about the time of the sowing and, that he did not use to drain off the water of the tank, for that purpose. The stray instances of the exercis