1. The defendant-appellant transferred to the respondent plot No. 922 in December, 1906. This plot was his sir land, and he accordingly became an ex-proprietary tenant of it. There is a pakka well in the plot, and the defendant has been using the water from this well to irrigate adjacent fields which he holds as sub-tenant from another landlord. The plaintiff brought this suit for an injunction prohibiting the defendant from using the water to irrigate any land other than plot No. 922 and for damages.
2. The defence was, first, that the suit was not maintainable in a Civil Court, but should have been brought in the Revenue Court under Section 65(2) of the Tenancy Act, and secondly, that the defendant was entitled to use the water of the well for any purpose he might desire. Both the Courts below have found against the defendant on both points.
3. With regard to the question of jurisdiction, there can be no doubt that the suit is triable by a Civil Court. Section 65 of the Tenancy Act prescribes in its first paragraph the procedure to be followed in ejectment for forfeiture and in the second paragraph now referred to allows a landlord to sue for compensation in addition to, or in lieu of suing for ejectment, or to sue for an injunction with or without compensation. This paragraph admittedly refers back to Section 57(b) of the same Act which permits the ejectment of a tenant on the ground of any act or omission detrimental to the land in the holding, or inconsistent with the purpose for which it was let. Now it cannot by any straining of language be held that the use of the water of a well situated in the holding of a tenant for the irrigation of other plots of land is detrimental to that holding or inconsistent with the purpose for which it was let. It is clear, therefore, that the suit was cognizable by the Revenue Court but was properly brought in the Civil Court.
4. Turning to the second plea I have not been shown any provision of any Statute or any ruling of any Court in which it has been laid down that a tenant is not permitted to use the water of a well situated in one plot of his holding for the irrigation of other plots in that holding merely because the latter plots belong to a different zamindar from the owner of the plot in which the well is situated. The learned Advocate for the respondent contends that as his client purchased the well along with the plot from the appellant he is entitled to prescribe the use to which the water shall be put. Such a doctrine seems to me to be inconsistent with the whole of the spirit of the tenancy legislation. Section 89 of the Tenancy Act allows even a non occupancy tenant to make a Will for the purpose of the irrigation of his holding without the consent or even against the wishes of his zamindar, a fortiori an ex-proprietary tenant who had himself constructed the well on his ex-proprietary holding must be entitled to use the water from it for the purposes of irrigation. It has not been pleaded here that the tenant's use of the water has in any way resulted in injury or loss of any kind to the zamindar nor has any custom been alleged by which the zamindar is entitled to limit the use of well in the plots occupied by tenants.
5. The appeal is allowed with costs in all Courts including in this Court fees on the higher scale.