1. The plaintiff sued to obtain a perpetual injunction restraining the defendants from using the water of a well alleged to have been wrongfully dug on his land. He stated that the defendants had wrongfully dug the well upon the false plea that they had obtained permission with a view to acquire a half share in the well and that they had proceeded to take tho water from the well for the purposes of irrigating their adjoining land. The defendants pleaded that they had an ancient right to take a half share of the water from the well, but that the well had fallen into disrepair and that they had consequently taken permission to repair it, and had done so at their own expense and had thereupon proceeded to use the water of the well according to their previous rights for the irrigation of their adjoining land.
2. The Joint Second Class Subordinate Judge of Karad found as a fact that the defendants had had an ancient right of the nature of an easement to take the water from the well, but that that easement had been extinguished by non-user for a period of more than twenty years under Section 47 of the Easements Act, V of 1882. He found further as a fact that the defendants had obtained per-. mission to repair the well with a view to the irrigation of their adjoining land and that they had at their own expense repaired the well and proceeded, though under subsequent protest, to use the water for the irrigation of their land. He held that the defendants' action was not wrongful in repairing the well and that it was taken under the bona fide belief that they would have the right to use the well. But he held however that owing to the subsequent protest the right obtained under permission had been revoked and that therefore the defendants ought to be restrained from further taking the water of the well for the irrigation of their adjoining land, and that was accordingly his decree.
3. The First Class Subordinate Judge of Satara, upon first appeal, accepted practically these facts as found at the trial, but he obviously felt the injustice of the injunction against the defendants, and he held that their easement was really an easement of necessity and was therefore not extinguished under Section 47 of the Indian Easements Act, V of 1882. He held further that the right was in any case not extinguished as it was upon a proper construction of the defendants' title deed really a half share in the well and was an interest in immoveable property which would only be lost by the proof, of which there was none, of adverse possession for more than twelve years under Article 144 of the Indian Limitation Act. He, therefore, held that the defendants were not liable to the perpetual injunction passed against them and that the suit against them ought to be dismissed. He accordingly reversed the decree of the trial Court.
4. The plaintiff has now come before us against this decision on second appeal, and it has been urged on his behalf that the easement has wrongly been held to be an easement of necessity and that the right was an ordinary easement liable to be extinguished by non-user for more than twenty years and was not a half share of the well or an interest in the immoveable property which would only be liable to be lost by proof of twelve years' adverse possession against the defendants. It seems to me that both these arguments must prevail. No authority lias been quoted on the other side for the proposition that tho right to Lake water would be under any circumstances an easement of necessity, and it Would be especially difficult in the present case to establish that proposition, because no water has been taken for the last twenty-five years for the purposes of the cultivation of the defendants' land. Nor was the right, in my opinion, anything more than an ordinary easement liable to be extinguished by non-user. The words in the title deed, Exhibit - 6, would appear to me to refer practically to the use of the water and not to the ownership of the well. The vernacular words are the introduction of the special reference to the water would appear to me to show that the use of the water was in view rather than the actual ownership of the well. It would appear to me proper to prefer this interpretation as that was the interpretation apparently held by the learned Judge of the trial Court whose view of the meaning of the vernacular words used differed therefore from the view of the learned First Class Subordinate Judge of the first appeal Court.
5. But it seems to me that the acceptance of these two arguments on behalf of the appellant by no means necessarily disposes of the appeal. It would appear to me clear upon the facts found that the injunction was inequitable as held by the learned First Class. Subordinate Judge of the first appeal Court, and it is a sound rule that when the decision is clearly unjust, a close and critical re-examination ought to be made of the apparent legal position. We have accordingly made that examination with the help of the learned pleaders who have assisted us on behalf of the appellant and the respondent. The result has been to satisfy me that what we really have to decide is the legal effect of the conduct of the parties on the side of the appellant in permitting the repair of the old well and on the side of the defendants in repairing it at their own expense with that permission and proceeding to make use of the water in accordance with their lapsed rights for the irrigation of their adjoining land. We ought, in my opinion, to infer upon the facts found that the appellant granted the permission on the understanding that the defendants, if they repaired the well, should be at liberty to take their half share in tins water as they would previously have been entitled to under their extinguished rights for the purposes of irrigation of their adjoining land, and that that was also the understanding of the defendants. If that be the correct interpretation of what occurred, then the appellant, in my opinion, practically granted a fresh easement to the defendants to the extent of the use of half the water of the well for the irrigation of their adjoining land that grant was accepted and actually used by the defendants It was suggested in argument that it would be necessary to enquire whether such a grant was legal, and whether it would not require a formal deed and registration. But fortunately for the justice of the case it would, in my opinion, be wholly unnecessary to enter upon any such discussion, because the appellant was in my opinion upon the facts found clearly estopped from denying that the defendants had been duly granted the easement to use half the water of the well as before for their adjoining land. The appellant had by his conduct permitted the respondents to believe that they would have that right upon the repair of the well, and the respondents relying upon this permission had acted upon the belief that they would be entitled to that right. It would no longer, therefore, be open to the appellant to deny the truth of that belief, the truth of that thing, viz., the existence of the right to the easement in the respondents. The appellant was, in my opinion, clearly estopped from denying the right of the respondents by the provisions of Section 115 of the Indian Evidence Act.
6. This second appeal ought, therefore, in my opinion, to be dismissed with costs.
7. I concur.