Achhru Ram, J.
1. This is a second appeal from the decree of the learned District Judge of Rohtak affirming on appeal the decision of a Subordinate Judge dismissing the plaintiffs' suit for the issue of a perpetual injunction restraining the defendants from irrigating lands in their cultivating possession from the well situate in khasra No. 2509 in Mauza Balland in the District of Rohtak.
2. The suit giving rise to this second appeal was filed by five Jat proprietors of Pana Kheri in the village Balland under Order 1, Rule 8, Civil P.C., as representing all the proprietors of the said Pana. This Pana is subdivided into two Thullas known as Thulla Bahrla and Thulla Bhitarla. There is separate shamilat for the Pana and for each of the two Thullas. According to the list of land owners filed with the plaint, there are as many as 70 proprietors in Thulla Bahrla and as many as 36 proprietors in Thulla Bhitarla The defendants are 11 person of the Saini tribe who are known as malis, presumably by reason of their cultivating certain land known as Bagh which is used more or less as a vegetable garden. From the copies of the revenue records that have been placed on the file, it appears that the ancestors of the defendants, and after them the defendants, have been in cultivating possession of certain lands forming part of the shamilat of Pana and the shamilats of the two Thullas since at least 1854. In the record prepared in 1261 Fasli which appears to correspond to the year 1851 A.D. 8 bighas of shamilat Pana comprised in khasra No. 880, 7 bighas and 6 biswas of shamilat. Thulla Bhitarla comprised in khasra No. 878, and 7 bighas and 8 biswas of shamilat Thulla Bharla comprised in khasra No. 879, were shown in the cultivating possession of Har Dial and Rattan Malis. It is noteworthy that out of the shamilat Pana land comprised in khasra No. 880, 3 bighas and 9 biswas were shown as rosali chahi, the remaining 7 bighas and 1 biswa being banjar, and that the entire land forming part of the ?shamilat of the two Thullas which was in the cultivating possession of the aforesaid persons was shown as rosali chahi. In the year 1872, Lib, Rattan, Mat Ram, Sang Ram, Haria, Shadi, Chetu, Jiwan and Ram Lal malis were shown in cultivating possession of the said lands. In the record of rights compiled at the settlement of 1909 we find the land forming part of shamilat Pana occupied as follows:
Khasra No. 2342 area 6 biswas in occupation of Amin Lal. Khasra No. 2344 area 12 biswas in occupation of Bhag Mal. Khasra Nos. 2343 and 2346 area 15 biswas in occupation of Sangat and Jiwan sons of Singha. Khasra Nos. 2341 and 2347 area 8 biswas in occupation of Khubi. Khasra Nos. 2331 and 2345 area 1 bigha in occupation of Ramji Lal.
The whole of this land was shown as chahi or irrigated.
3. The land forming part of shamilat Thulla Bahrla was occupied as below:
Khasra No. 2324 area 13 biswas in occupation of Ramji Lal recorded as barani. Khasra No. 2325 area 6 biswas in oooupation of Molar Bhown as barani. Khasra No. 2329 area 6 biswas in occupation of Nihala shown as well-irrigated. Khasra No. 2322 area 5 biswas in occupation of the aforesaid Nihala shown as barani. Khasra Nos. 2330 and 2332 area 7 biswas and 5 biswas respectively in occupation of Amin Lal shown as well-irrigated. Khasra Nos. 2323 and 2327 area 4 biswas and 12 biswas respectively in occupation of the a foresaid Amin Lal recorded as barani. Khasra No. 2326 area 6 biswas in occupation of Jiwan and Sangat shown as barani. Khasra Nos. 2333 and 234 area 6 biswas and 11 biswas respectively in occoupation of Khubi shown as irrigated. Khasra Nos. 2321, 2328 and 2335 area 1 bigha 1 biswa, 1 bigha and 1 bigha 3 biswas respectively in occupation of the aforesaid Khubi shown as barani.
The land shown as shamilat Bhitarala was occupied as below:
Khasra Nos. 2339, 2340, 2348 and 2357 area 1 bigha 11 biswas in occupation of Amin Lal shown as irrigated. Khasra Nos. 2337, 2338, 2349, 2350, 2351, 2354 and 2356 area 3 bighas and 11 biswas in occupation of Khubi shown as irrigated. Khasra Nos. 336 area 1 bigha in occupation of the aforesaid khubi shown as barani. Khasra Nos. 2352 and 2355 each having an area of 6 biswas in occupation of Ramji Lal shown as chahi Khasra No. 2353 area 6 biswas in occupation of Molar shown as chahi. Khasra No. 2358 with an area of 11 biswas in occupation of Nihala and Tuhian shown as chahi
With very slight changes the above mentioned lands have been in the occupation of the persons mentioned above or their descendants or collaterals, the defendants being the present occupants of the said lands. The lands that were shown as chahi in the record of rights of the settlement of 1909 continued to be shown as appears from the khasra girdawaris, as irrigated up to rabi 1936. Copies of the khasra girdawaris for the subsequent period have not been produced. However, in the jamabandi for 1943-44 and the khasra girdawaris for 1945 all these lands are shown as barani. It is not disputed that, when irrigated, the lands mentioned above were irrigated from the well in dispute namely, the well in khasra No. 2509.
4. The suit giving rise to the present second appeal was instituted on 13th February 1945, on the allegations that the well in dispute belonged to the proprietors of Pana Kheri, that its water which was braokish before had become sweet about 20 years before the institution of the suit, and had, since then, begun to be used for purposes of drinking by the proprietors of the Pana; that the use of the well water for the purpose of drinking was wholly indispensable from the point of view of the aforesaid proprietors; that the defendants began to use the said water for the purpose of irrigating their fields on the night between 6th and 7th January 1945; that the said act of the defendants was wholly unwarranted and wrongful and was calculated again to make the water of the well brackish and incapable of use for drinking purposes; and that the plaintiffs were entitled to restrain the defendants from using the well for purposes of irrigation. The suit was resisted by the defendants on the pleas that the water of the well had never been used for the purpose of drinking, that the well had always been used by them and their ancestors for irrigating their lands; that the said use of the well never rendered the water of the well brackish; and that the defendants had acquired an indefeasible right to use the water of the well, by continued an uninterrupted long user lasting over a period of 150 years, as an easement and otherwise. The plaintiffs' right to maintain the suit was denied. Seventeen out of the proprietors of Thulla Bhitarla obtained leave to appear in their own names and were accordingly impleaded as defendants 12 to 28. They supported the defendants' allegations. On the pleadings of the parties, the learned trial Judge framed the following issues:
(1) Are not the plaintiffs owners of the well? (2) Have defendants 1 to 11 also acquired rights of ownership in the well? (3) Are defendants 1 to 11 occupancy tenants in the well? (4) Have defendants 1 to 11 acquired a right to irrigate their lands from this well? (5) Whether the said irrigation will make the water of the well undrinkable? (6) Is the suit within time? (7) To what relief are the plaintiffs entitled?
Issue 3 was left over for decision by a revenue Court in case the other material isaues were decided in the plaintiffs' favour. Issue 1 was found for the plaintiffs. Issue 2 was decided against the contesting defendants. Issues 4 and 5 were found in the defendants' favour. Issue 6 was decided against the plaintiffs. As a result of the decision on issues 4, 5 and 6 the plaintiffs' suit was dismissed. The plaintiffs appealed to the learned District Judge but without success. They have come up in second appeal to this Court.
5. A reference to the relevant documents on the record shows that the well in question was sunk in land forming part of shamilat Pana Kheri by one Nanak Yogi about a hundred years before the settlement of 1879. It was known as Chah Khari by reason of its water being brackish. Exhibit D. 11 is a copy of the entry in Naqsha Haquq Chahat or 'statement relating to rights in wells' with regard to the well in question. After reciting the above facts it is stated therein that since the time of its construction on the masonry work of the well had never been repaired, and that the well was being used by Pat Earn, Jas Ram, Chetu, Khubi, Sada Singh, Ram Lai, etc., predecessors-in-title of the defendants for the purpose of irrigating lands according to tarns fixed amongst themselves. 19 bighas 8 biswas and 3 biswansis of land were, according to the aforesaid document, being irrigated from the well by the abovenamed persons. Details of the land irrigated by each, of them were also given. Under the heading Clause (iv) relating land-revenue it was noted that
no separate land revenue by way of abiana had been assessed and that land revenue was paid in respect of the land under the well according to the village assessment on barani land.
The khasra number of the land in which the well situate in the settlement of 1879 was 8667. In the record of rights while the land comprised in the said khasra number was shown as shamilat Pana in the proprietary column, the entry in the cultivation column was as below:
Present in possession in six shares. Chetu son of Har Dial one share.
Ram Lal, Khubi and Sada Singh sons of Ganga one share.
Pat Ram, Haria, Sang Ram and Jag Ram sons of Rattan one share.
Jai Ram, Jamna and Udmi sons of Sada Ram one share.
Ram Kala son of Bholu one share.
Teja son of Soma one share.
6. In the statement of rights in wells prepared at the settlement of 1909 the well in question was shown as chah khara vaklawa pukhta jari. It is quite manifest from this entry that it was used then only for purposes of irrigation. It was noted that the rights in the well were the same as at the time of the settlement of 1879. In indicating how the well was worked, it was noted that Khubi bad a one-half share, the remaining one-half being enjoyed as follows:
(1) One-fourth share by Amin Lai, Nihala and Tuhian in equal shares.(2) The remaining one fourth share as follows:(a) Bamji Lal and Molar One-third.(b) Jiwan and Sangat One-third,(c) Bhag Ma; One-third.It was noted that Amin Lal was irrigating 2 bighas and 8 biswas of land, Khubi 4 bighas 17 biswas, Ramji Lal 1 bigha and 12 biswas, Molar 6 biswas, Nihala and Tuhian 17 biswas, Jiwan and Sangat 15 biswas and Bhag Mal 11 biswas. The khasra numbers of the lands irrigated were also given. The total area irrigated from the well came to 11 bighas and 7 biswas. The turns fixed inter se the persons mentioned above were also noted.
7. The plaintiffs themselves have produced copies of the jamabandis from which it appears that up to the jamabandi for 1927-28 the defendants or their predecessors-in-title were shown in possession of the well in dispute. In the jamabandi for 1931-82 and in the jamabandis that followed, the entry in the cultivation column has been maqlujza Malikan. As I have stated above, from the copies of the khasra girdawaris it appears that the land which was irrigated from this well at the time of the settlement of 1909 continued to be so irrigated till rabi 1936.
8. The question that arises for decision is whether in the circumstances mentioned above, the defendants can be deemed to have acquired a right to use the well in dispute for the purpose of irrigating the aforesaid lands.
9. The defendants being admittedly only tenants of the lands in their possession which they have been irrigating from the well in suit, it is obvious that they cannot claim a prescriptive easement over the said well.
10. A Full Bench of the High Court of Allahabad in Udit Singh v. Kanshi Ram 14 ALL. 185 held that a tenant cannot as against his landlord acquire by prescription an easement of way in favour of the land occupied by him as tenant, over other land belonging to his landlord. Sir John Edge, C.J. who delivered the main judgment of the Full Bench cited with approval the following observations of Lord Cairns in Gay ford v. Moffat (1869) 4 Ch. A. 133:
An easement must be acquired in respect of some tenement, and the only tenement in respect of which this easement could be acquired, and which itself would become the dominant tenement, is the demised close. But the possession of the tenant of the demised close is the possession of his landlord, and it seems to be an utter violation of the first principles of the relation of landlord and tenant to suppose that the tenant, whose occupation of close A was the occupation of his landlord, could by that occupation acquire an easement over close B, also belonging to his landlord, the duty of the tenant being to take care that if he is passing overdose B at all, he should be nothing on it more than his lease authorised him to do, and it must be supposed for this part of the argument that the lease in this case authorised him to do no more than cross the yard without any right of depositing goods on it.
11. In Mani Chandra v. Baikanta Nath 29 Cal. 363 the same view was taken and these two judgments were followed by Johnstone, J. in Puran v. Ghungar A.I.R. 1930 Lah. 119.
12. While a tenant may not acquire a prescriptive easement over other land belonging to his landlord, it is well-settled that he may acquire an easement of the kind mentioned in Section 18, Easements Act. The aforesaid section calls such an easement a customary easement. Some writers have given it the name of a right in gross.
13. In Dewa Singh v. Billa 4 P.R. 1877 a Full Bench of the Chief Court of the Punjab laid down that where tenants in a village have been allowed by the proprietary body to occupy a. part of the common land for certain purposes for a long time, it is not open to the proprietary body or individuals claiming under it after a partition to oust the occupants. In that case the weavers residing as non-proprietary tenants in the village had been using a part of the village-common land for making holes and pits for the purpose of their trade, and an attempt was-made to oust them by a proprietor to whom that portion of the common land had been allotted at partition. In delivering the judgment, of the Full Bench Boulnois, J. observed as follows:
The right of property in the whole of the common land must be treated as originally subsisting in the proprietary body alone, but it is quite open to them to allow persons to occupy portions of the common land for their use and benefit in such a way as to acquire it right of user, and under some circumstances especially after a long lapse of time, it is not open to the proprietary body or individual claiming under it after a partition to oust the occupants.... Now, having regard to the following points, although the case has been somewhat unsatisfactorily dealt with, I do not think that there should be a remand. We know for certain that the partition took place many years after that-the plaintiffs with the full consent of the proprietary body had made their loom holes where they now are. I freely admit that the twelve years bar does not apply, for there was originally a simple permission from the proprietary body to the weavers to make their working places. It cannot he applied. But I understand it to be found by the two Courts that the occupation of the weavers has been of long duration, and I also understand that village servants though their occupation is permissive in its origin cannot be turned off the sites of their houses so long as they keep those houses up; and I also know that in case after case the Chief Court has refused to permit a minor section of a proprietary body to eject a workman who has made his working, place on the abadi, with the consent of the majority. I do not understand that a partition being effected the individual proprietor to whom falls the portion of the common land on which the village servant resides, can exercise rights which the general proprietary body while the land was common never thought fit to exercise during a long course of years....
14. In Lala v. Parmesarya 73 P.R. 1883 and Bhani v. Bhag Mal 65 P.R. 1885 similar view was taken.
15. In Ilahi Baksh v. Din Muhammad 14 P.R. 1897 the plaintiffs, who were snuff-grinders and mill-owners, and had been using certain land adjacent to their mills for the purpose of; drying their tobacco for a long time, were held to have acquired a customary rights of easement to use that land for the said purpose.
15. In Rajab Ali v. Rajoo Khan A.I.R. 1914 ALL. 416 the defendants were tenants of the village proprietors. They were old sugarcane cultivators in the village and had been using a plot of common land for the purpose of expressing and boiling the sugarcane juice and cognate purposes. In a suit brought for their ejectment Sundar Lal, J. held that they had acquired an indefeasible right, which might be described as a customary right of easement, to continue to use that plot for the said purpose so long as they were cultivating sugarcane in the village. He observed:
The right claimed by the defendants in this case is not a right of easement claimed by the owner of a 'dominant tenement against a servient tenement. It is a claim of the nature of a customary easement of the class referred to in Section 18) Easements Act, 1882, and recognised in numerous oases, bath in this country and in England.
Ilahi Bakhsh v. Din Muhammad 14 P.R. 1897 was one of the cases cited by the learned Judge with approval.
17. In Karan Singh v. Dal Chand A.I.R. 1924 All. 159 the plaintiffs were zamindars of Mauza Budpur and the defendants were their occupancy tenants in the same village. The suit was for a perpetual injunction restraining the defendants from making use of a way through certain fields belonging to the plaintiffs. It was found that the way had been used by the defendants for a period of about 30 years. It was contended on behalf of the plaintiffs, relying on the Full Bench judgment in Udit Singh v. Kashi Ram 14 ALL. 185 that the defendants could not acquire any prescriptive right of easement by user of the way for a period of over 20 years because they were holding the land for the benefit whereof the way had been used as tenants under the plaintiffs. Daniels, J. held that the defendants must be held to have acquired a customary easement for using the land in question for the purpose of getting to the land comprised in their tenancy. The following observations made by the learned Judge in dealing with the question whether a customary easement should be deemed to have been acquired by the defendants in the circumstances are important:
It is urged that a customary easement is limited to easement of a kind which could not be recognised at all apart from special customs such as the right of pasturage and the right of privacy referred to in the illustrations, Although this is the view taken in Peacock's Easement, I know of no warrant for limiting the term in this manner. Any kind of easement recognised by the custom of the province would surely fall within the meaning of the term. Now it is in my opinion beyond doubt that according to the customs prevailing in these provinces a zamindar has no right arbitrarily to close a way which has been used by occupancy tenants of the village for 30 years without question or opposition for access to their fields and for removing their produce.
18. The judgment of the Allahabad High Court in Partap Singh v. Nand Kishore : AIR1928All591 seems to be almost on all fours with the facts of the present case. In that case a tenant had been using the water of a kacha well for irrigating his field. On partition between the zamindars the land in which the well stood came to the share of a person who was not the plaintiff's zamindar and who tried to prevent the tenant from drawing water from the well. It was held that the plaintiff had acquired a customary right of irrigating the land comprised in his tenancy from the well, and that such a right could be acquired by a tenant even against his own landlord.
19. In the Punjab in quite a large number of cases, it has been held that tenants, whether possessing occupancy rights or not, can have a customary right to use the village common land for the purpose of grazing their cattle or for the purpose of standing such cattle or for use as a threshing floor.
20. Prom the facts disclosed on the record, it appears that the defendants have been cultivating the lands occupied by them as tenants under the proprietary body of the Pana as well as under the proprietary bodies of the two Thullas into which the Pana is subdivided, for several generations. The well although situate in the common land of the Pana was not sunk by the proprietors but by a Sadhu. Prom the earliest times that we know of it seems to have been used almost exclusively by the defendants' ancestors, and the defendants themselves, for irrigating the lands in their cultivating possession. It is not suggested that the lands held by them in the year 1854 and shown as chahi, or well-irrigated in the revenue records of that year could have been irrigated from any other well. In the circumstances, it may reasonably be presumed that even then, those lands were being irrigated from this well, particularly because we find that in the settlement record of 1879 it was definitely that those lands were irrigated from the said well and that the tenants in cultivating occupancy of those lands had been using the well in certain defined shares. The records thus clearly prove the user by the defendants of this well for the purpose of irrigating their lands for no less than 80 years,
21. It is true that the lands which the defendants had been irrigating from the well in question were, according to the entries in the revenue records, held by them only as tenants-at-will. The question of the nature of their tenure in respect of those lands cannot, however, affect the decision of the question whether they have acquired an indefeasible right to irrigate those lands, so long as they hold possession thereof, from that well. If their tenure is not of a permanent nature they can naturally enjoy the right to irrigate the lands in their cultivating occupancy only so long as they are allowed or are able to continue in possession of those lands. The right acquired by them being not of a personal nature but only a right existing for the more beneficial enjoyment of the lands held by them will only last so long as their occupation of those lands lasts. However while they are still in cultivating occupancy of those lands the plaintiffs cannot legitimately interfere with their right to irrigate the said lands from the well, in dispute.
22. Mr. Shamair Chand the learned Counsel or the appellants urged very strenuously that a customary easement had never been claimed by the defendants in their pleas and that the plaintiffs had never had an opportunity of showing that they had not acquired such an easement. In the written statement filed by the defendants it was expressly stated that they had been using the well for the purpose of irrigating their land for over 150 years and had accordingly acquired a right of easement and also a right otherwise to use the well for the said purpose. It was nowhere stated that the easement claimed by the defendants was a prescriptive easement. The plea was of a general nature and the issue framed was also in very general terms. The par. ties appear to have exhausted all their evidence on the question of the history of the defendants' connection with the well. In the circumstances, I see no reason to accede to the prayer of the learned Counsel that in case the learned Counsel for the respondent is to be permitted to urge that the respondents had acquired a customary easement to use the well for the purpose of irrigating the lands in their cultivating occupancy, the case should be remanded to the trial Court in order to afford the plaintiffs an opportunity to show that all the facts required to be proved for establishing such an easement did not exist in the present case. The plaintiffs had ample opportunity to produce any evidence they liked in order to negative toe defendants' claim, very clearly put forward in their written statement, as to their having acquired a right to use the well for the purposes indicated above and I have no reasonable doubt in my mind that they did in fact produce all the available evidence on the subject.
23. For the reasons given above, I am of the opinion that the plaintiffs' suit has been rightly dismissed by the Courts below. I accordingly dismiss the appeal with costs.