1. This is the defendant s appeal and arises out of the following circumstances. The plaintiffs brought the suit for recovery of Rs. 600, as damages on the allegation that they had a right to irrigate four plots of land namely Nos. 2671, 2672, 2673 and 2674 with the water taken from a well situated in plot 2670, that they had grown potatoes in all the plots except plot 2671, that the defendants, without any rhyme or reason stopped the plaintiffs from Irrigating the potatoes field and that a loss was caused to the plaintiffs. The defence was that the well belonged to the defendants themselves, that the plaintiffs had no right to cultivate their lands with the water of the well, that the defendants themselves had been cultivating the four plots which are now in plaintiff's possession and that the plaintiffs were not entitled to recover any damages.
2. It will be noticed that the plaintiffs did not explain in the plaint what was the nature of the right which was claimed by them. The learned Munsif held that the plaintiffs' right was in the nature of a customary right and decreed the claim for Rs. 300 only. There was an appeal by the defendants. The learned Subordinate Judge who heard the appeal, reduced the claim to Rs. 200, but otherwise dismissed the appeal. He found that on defendants' own evidence and on the admission of one of the defendants himself the plots in question 'had always been' irrigated with the water of the well in question. He modified the decree of the Court below and as regards costs, he directed that the plaintiffs should get 'their costs proportionate to their success throughout. As regards the defendants he directed that they should get one-half of the costs of the appeal from the respondents.
3. In this Court it has been contended that the Courts below have entirely missed the fact that the defendants themselves cultivated the plots 2672 to 2674 and irrigation by the defendants themselves with water from their own well Could not confer any right of easement on the tenant under whom the defendants cultivated the lands. It appears that the plots were the occupancy holding of two persons Bhola and Ramdei and the plaintiffs got those plots in 1926 by some sort of exchange with those people. If Bhola and Ramdei acquired a right of easement to irrigate the plots 2672, 2673 and 2674 with the water from the well situated in plot 2670, then alone the plaintiffs would be entitled to that right of easement. If it be true that the defendants themselves cultivated the three plots in question with the water from their own well, it will be a matter for consideration whether their act, although extending over more than 20 years, would confer on the principal tenants Bhola and Ramedi a right of easement as against the defendants themselves. This seems to be the most important point in the case but has been entirely missed by the Courts below. There is a cross-objection as regards costs filed by the plaintiffs. It will be time to look into the cross-objection when the whole appeal is decided. For the present, I propose to remit the following issues to the Court below for a finding. I may note that the first Court found that the well in plot 2670 belongs to the defendants and the lower appellate Court has not dissented from this finding.
4. The issues that I remit are as follows:
1. How long have the plots 2672, 2673 and 2674 been irrigated with water taken from the well in question situated on plot 2670?
2. For what period, out of the aforesaid period of irrigation, the defendants cultivated the aforesaid plots 2672 to 2674?
3. Whether Bhola and Ramdei, the predecessors of the plaintiffs have acquired any right of easement to cultivate the aforesaid three plots out of the water taken from the wall in question?
5. Six weeks are allowed for return of the findings. No additional evidence shall be adduced by the parties. Ten days are allowed for filing objections. On return of the findings, the judgment proceeded. The facts of the case will be found given in my judgment dated 10th April 1929 by which I remanded three issues to the Court below, The learned Subordinate Judge has returned answers to the three issues as follows:
1. The plots 2672, 2673 and 2674 have been irrigated with water taken from the well situated in plot 2670 for the last 66 years,
2. The defendants cultivated the plots 2672, 2673 and 2674 for 30 to 35 years out of the said period of 66 years, this period ending with 1926.
3. No right of easement has bean acquired.
6. The parties have not filed any written objections but on behalf of the respondents, exception has been taken to the finding on point No. 3. This finding being a finding of law may be challenged in appeal and I proceed to consider it.
7. The learned Judge of the lower appellate Court was of opinion that in spite of the user of the well for 30 years, no right of easement accrued to the occupiers of plots 2672 to 2674, because the holders of these plots and plot 2670 were tenants of the same landholder. By Section 8, Easements Act, an easement may be imposed by a person who has no full title in his property provided he has a right to transfer the interest. Such imposition of the easement will not last beyond the tenure of the person imposing the easement. In this view, the broad proposition laid down by the lower Court that a tenant cannot acquire an easement against property held by another tenant is not based on any sound principle. It is common ground that the defendants are tenants, but so far as the well is concerned, they derived their title by purchase. The learned Subordinate Judge found that the defendants acquired the well by purchase under the sale-deed dated 20th May 1896. Evidently then, the well was a saleable property. The owner or occupier of it who transferred it to the defendants could impose an easement on the well by 30 years' user, which lasted, roughly speaking, between 1860 and 1890. The respondents acquired a right of easement over the well. After 1890, the appellants obtained a sub-lease from the original tenants of plots 2672 to 2674 and in that capacity they cultivated the lands for 30 to 35 years. During most part of this period, the dominant and servient heritages were vested in the same person, with the result that the easement remained suspended for the time being; see Section 49, Easements Act. After the discontinuance of possession on the part of the plaintiffs, the easement was revived and the respondents were entitled to enforce it. I hold that the plaintiffs had a right of easement to irrigate their lands with the water from the well owned by the appellants. In the result, the appeal fails. There is a cross-objection on the part of the respondents. It relates to costs. The costs were at the discretion of the Court below and I see no valid reason to interfere in the matter of costs. In the result, the appeal is dismissed with costs as also the cross-objection with costs.