1. Assuming (but without deciding) that Mr. Jinnah's contention is sound, viz., that the plaintiff could not have acquired the right which he is suing to enforce under the Indian Easements Act, still the case is saved by Section 2, Clause (c), of that Act.
2. The lower Courts have found concurrently, as a fact, that the plaintiff has acquired this right and enjoyed it from time immemorial.
3. Even if it were a right that could not be acquired as an easement, there is nothing intrinsically unreasonable in it. On the contrary it is compatible with the usages and sentiments of the agricultural population in many parts of India. In my opinion the decree of the Court below must be confirmed and this appeal dismissed with all costs upon the appellants.
4. This second appeal raises an interesting question as to water rights which has been decided in plaintiff's favour in both the Courts below. The facts proved show that from time immemorial the plaintiff and his ancestors as owners of certain non-riparian lands have been taking water from a river at or about a certain spot on the river banks, and thence over the lands of the defendants successively till the plaintiff's lands are reached. The 'water thus taken has not flowed in a definite channel over the defendants' lands, but has followed the general lines indicated by the colour blue, viz., first to the south of the westernmost embankment coloured red on the map in the suit, and then bifurcating almost at right angles east and west. The map is not so helpful as it might be. It contains no scale and no compass bearings, and only shows a portion of the river, viz., that to the east of the embankment I have mentioned. It is on the site of this embankment that the water has hitherto been taken. The embankment itself was only built some eighteen years ago but the findings are that the plaintiff then pierced this embankment so as to admit of the water flowing as before, and that the pipe he subsequently placed for that purpose was a hollowed palm tree which he subsequently renewed. It was then that the defendants obstructed the pipe and the flow of water for the first time, and consequently this action was brought. The embankment I have referred to is called 'the dam in dispute' in the Court of first instance, and must not be confused with the dam which from time to time has been placed by the plaintiff and others in the river bed itself so as to ensure a supply of water in time of drought or scarcity.
5. The technical difficulty here is that the water has been brought not in a defined channel but has been allowed to spread over and irrigate the defendants' lands first and then the plaintiff's. This indeed appears to be a common method of irrigation in India see Villuri Adinarayana v. Polimera Ramudu 17 Ind. Cas. 648 : 37 M. 304 : 12 M.L.T. 637 : 24 M.L.J. 17. It has at any rate been the method adopted for very many years for irrigating the paddy fields in dispute in the present case. Accordingly the contention of the defendants that the plaintiff's right, if established, 'would tend to the total destruction of the defendants' property' within the meaning of Section 17(a) of; the Indian Easements Act may be summarily dismissed.
6. The defendants' substantial objection is that the right claimed is really one 'to surface water not flowing in a stream' and hence cannot be acquired as an easement under the Indian Easements Act [see Section 17(c)], nor be the-subject of a presumed lost grant. In my judgment that is not really the right which the plaintiff is claiming. He is really claiming the right to take the water from the river without interruption by the defendants, and to have it conveyed over their lands. According to the Court of first instance the plaint alleges that 'from the time of his ancestors the plaintiff has been in the habit of taking the water of that river for irrigating his lands'.' The plaint then proceeds to give details as to how that water is taken and reaches plaintiff's lands.
7. Some difficulty was caused by the fact that a large portion of the embankment in question appears to be on land belonging to Government, and not to the defendants as they alleged, The Collector, however, does not appear to lake any objection, and so far as the present parties are concerned, I do not know that the point is really very material. Defendant No. 3 is now the Government tenant but has been warned not to obstruct the plaintiff in taking the water.
8. If, then, my view of the facts is correct, the claim is to river water end not to mere surface water on the defendants' lands and consequently Section 17(c) does not apply.
9. It is no doubt true that the method of conveying that river water over the defendants' lands creates a difficulty, for some is used to irrigate the defendants' lands or may be lost by percolation, and on the other hand the volume of general water on the defendants' lands may the affected by rain water falling on their lands or from other like causes. This might, however, happen just the same if the water was convened in a definite open channel. Some of the river water might still be diverted by cross-cuts in that channel on the defendants' lands. Further, rain water falling on the defendants' lands might easily increase the volume of water in the open channel. One may, I think, fairly assume that the method actually adopted in the present case of conveying this river water for all these years is the one best suited to local requirement, and preferable in particular to a definite channel with cross-cuts. Budhu Handed v. Maliat Mandal 30 C. 1077 and Kensit v. Great Eastern Railway Co. (1884) 27 Ch. D. 122 : 54 L.J. Ch. 19 : 51 L.T. 862 : 32 W.R. 885. are instances of an easement or grant for river water across certain lands.
10. But the plaintiff does not necessarily depend on the Indian Easements Act. Section 2(c) provides that nothing in that Act is to derogate from any right acquired before this Act comes into force'. Had then the plaintiff or his predecessors in-title acquired any such right before the Indian Basements Act came into operation? I think be had. The decisions in Ramessur Persad Narain Singh v. Koonj Behary Pattuk 4 C. 633 : 6 I.A. 33 : 3 Bar. P.C.J. 866 : 3 Ind. Jur. 179 : 2 Shome L.R. 194 : 2 Ind. Dec. 402 and Rajrup Koer v. Abul Hossein 6 C. 394 : 7 C.L.R. 529) 7 IndAp 240 : 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 show that the presumption of a lost grant is one which may be made in India as well as in England. The presumption arises out of the strong desire of the Courts to find a legal origin for an ancient and uninterrupted user, The presumption may be rebutted like other presumptions. It also requires certain conditions, and one is that the right could have been the subject of a grant. As Lord Selborne puts it in the leading case of Goodman v. Saltash Corporation (1886) 7 A.C. 633 : 52 L.J.Q.B. 193 : 48 L.T. 239 : 31 W.B. 293 : 47 J.P. 276: An open and uninterrupted enjoyment from time immemorial under a claim of right seems to me to be all that is necessary for a presumption that it had such an origin as would establish the right, if a lawful origin was reasonably possible in law.'
11. Is then the grant of the right claimed reasonably possible in law? I think it is It is true that the plaintiff is a non riparian owner. Presumably, therefore, the riparian owner of the embankment in question could not have made a grant of the river water so as to affect the lower riparian owners see Ormerod v. Todmorden Joint Stock Mill Co. (1883) 11 Q.B. 155 : 52 L.J.Q.B. 445 : 31 W.B. 759 : 47 J.P. 532 and McCartney v. Londonderry and Lough Swilley Railway Co. Ltd. (1904) A.C. 301 : 73 L.J.P.C. 73 : 91 L.T. 105 : 53 W.R. 385. But the grant would at any rate be good as against such grantor (see same cases), and I assume also against his sequels in title. And the lower riparian owner could not complain unless he was injuriously affected in fact. I See Kensit v. Great Eastern Railway Co. (1884) 27 Ch. D. 122 : 54 L.J. Ch. 19 : 51 L.T. 862 : 32 W.R. 885. Further, as between himself and the lower riparian owners, the grantor might justify the user by a grant from the lower riparian owner or by, prescription [see McCartney's case (1904) A.C. 301 : 73 L.J.P.C. 73 : 91 L.T. 105 : 53 W.R. 385. In this very case we find a dam erected in the river bed, and this I suppose could only be justified against lower riparian owners by grant or prescription. Possibly the non-riparian grantee could not sue the lower riparian owners in his own name [see Ormerod's case (1883) 11 Q.B. 155 : 52 L.J.Q.B. 445 : 31 W.B. 759 : 47 J.P. 532. Here, however, the defendants or their predecessors are either the original grantors of the river water, or else are the grantors of the right to have such water conveyed over their land in the way specified. In other words, I think it reasonably possible in law that the defendants' predecessors could have granted the right to convey definite river waters over their lands notwithstanding that such river waters flowed or passed through the defendants' lands in no definite channel. In this respect the case presents a considerable resemblance to that of Villuri Adinarayana v. Polimera Bamudu 17 Ind. Cas. 648 : 37 M. 304 : 12 M.L.T. 637 : 24 M.L.J. 17.
12. It was suggested that the pleadings in the present case did not permit of the presumption of a lost grant. The plaint, however, clearly pleads the fact of immemorial user, and it is this fact which raises the presumption in law. Further, this very point is dealt with in the judgment of the Court of first instance at page 22, line 41. If necessary, therefore, the pleadings should be treated as amended to as to raise this point expressly, and I decide this case on that footing.
13. Some objection was made as to the form of the original decree. No objection appears to have been taken on this head in the lower Appellate Court, and I do not see that it is essential to vary the form of the decree. In effect the injunction is intended to preserve the immemorial user.
14. In my judgment the appeal should be dismissed with costs.