Jagat Naryan, J.
1. This is an anneal by the defendants against an order of the Appellate Court passed under Order 41, Rule 23, C. P. C. remanding a suit for disposal on merits. The suit was dismissed by the trial Court on a preliminary point.
2. Ramji Lal is a tenant of Khasra No. 10 situated in village Sanwlod. Chandgi Ram defendant No. 1 is a tenant of Khasra No. 25 and Sukha and Baldeo defendants Nos. 2 and 3 are tenants of Khasra No. 12. The plaintiff claims that he has a right of access to his field through Khasra No. 25 and along the mendh of Khasra No. 12. He has brought the present suit for a deciara- tion of his right of passage and for a permanent injunction restraining the defendants from interfering with it. The suit was contested by the defendants inter alia on the ground that the plaintiff and they being tenants of a common landlord namely the State, the plaintiff could not acquire any right of easement, over their tenancy lands for the beneficial enjoyment of his land in view of the provisions cf Section 12, Easements Act (hereinafter referred to as the Act). This contention was accepted by the Trial Court which dismissed the suit on this preliminary ground.
On appeal the learned District Judge set aside the decision of the Trial Court following the decision of a learned Single Judge of the Madras High Court in Naga-rethna Mudaliar v. Sami Pillai, AIR 1936 Mad 682. That suit was brought for a declaration that the plaintiff was entitled to discharge not only the rain water but also the water utilised for irrigation purposes brought on to his land from adjoining channel into the land of defendant No. 1 and for an injunction restraining defendant No. 1 from causing obstruction to the flow. The geographical configuration of the lands of the plaintiff and of the surrounding lands was such that the lands of the plaintiff could not drain themselves in any other manner. The plaintiff and defendant No. 1 were however tenants cf the same landlord. The learned Judge upheld the right of the plaintiff. So far as the right to discharge rain water was concerned it was a natural right inherent in property as shown by Illustration (i) to Section 7 of the Act. The question of discharging water received from the irrigation channel presented some difficulty. The learned Judge referred to the decision in Sankarappa Naicker v. Pari Naicker. AIR 1915 Mad 852, in which the following passage from Kerr on Injunctions was cited to show the extent of the right as understood in English Law :
'The owner of land lying on a lower level is subject to the burden of receiving water which drains naturally or in the course of ordinary agricultural operations, such as by deep ploughing, from land on a higher level.'
3. Then the learned Judge referred to the decision In Doralswami Muttiriyan v. Muttachi, AIR 1918 Mad 97, in which Sadasiva lyer, J. who was inclined to extend the right even to water brought on to land for irrigation purposes observed :
'I think also that even if the water that is brought according to the custom and usages of the country along irrigation channels upon the land, the right to pass it on to a land of a lower level may be spoken of as a 'natural right' without much violence to language.'
4. The learned Judge also referred to the decision in Kasia Pillai v. Kumaraswami Pillai, AIR 1929 Mad 337 in which Madhavan Nair, J. laid down :
'It appears to us that in India, the right of an agriculturist to drain off into the lower lands the water brought Into his land for ordinary agricultural operations is a customary right. He Is entitled to do so by custom; otherwise, it will be Impossible to carry on' agricultural operations successfully.'
5. The learned Judge felt some, difficulty in applying the above principle to the case before him as custom had not been pleaded and relying on some English decisions he held as follows :
'In my opinion the principle applied by Bankes, L J. to the case of a copyhold can legitimacy be applied to the case of a ryotwari proprietor. Though copyhold is not a freehold Bankes, L. J. stated in Derry v. Sanders, (1919) 1 KB 223, he has sufficient estate to make a grant of easement for making the theory of lost grant applicable. It may equally be said that the estate of a ryotwari proprietor is an estate in the soil and possession is with him though the property may be said to be in the Government. The estate of a ryotwari proprietor is also heritable and alienable. He has a sufficient estate to support a grant of an easement. He would be a 'capable grantor' as understood in English law for the application of the doctrine of lost grant ..... I am therefore of opinion that on the findings in this case the view of the learned Subordinate Judge, that the enjoyment having been for more than 30 years it should be deemed to be of right, and the plaintiff's claim should be upheld.'
6. On behalf, of the appellants it is contended that it is not safe to apply English decisions to India where there is a statutory law of easements in force, Section 12 of which expressly lays down that no lessee of immovable property can acquire for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.
7. In view of this express provision of law I am reluctant to follow the dictum of the learned Single Judge in AIR 1936 Mad 632. The Legislature will be deemed to be cognizant of the fact that in India there were heritable and amenable tenancies. No exception was made in tneir favour under Section 12.
8. No such exception was necessary either. For in this country as fields are generally of small size, are surrounded by fields of other tenants and are not connected by private or public pathways, there is a customary right vested in a tenant of every field -- whether or not his tenancy is heritable and alienable -- to have access to it for agricultural purposes and this right is availabla to him, to members of his family, his hired labourers and his partners in cultivation. These persons can go to the field and return from it on foot and can take unyoked bullocks and ploughs with them. This right can only be exercised in accordance with the principles underlying Section 22 of the Act namely in the mode which is least onerous to ather tenants of the locality.
9. Without the existence of such a right it will not be possible for most tenants to cultivate their fields. It is this necessity that has given birth to the custom. Generally it !s possible for tenants to 20 to their fields along the 'mendhs' of other fields. Where however the 'mendhs' are high and narrow, passage has to be provided by other tenants through intervening fields.
10. Statutory recognition is given to this customary easement in Rajasthan under Section 251 of the Rajasthan Tenancy Act which runs as follows :
'Rights of way and other private easement; (1) In the event of a dispute arising as to the route by whicn a holder of land shall have access to his fields otherwise than by the recognised roads, Daths, or common land in-eluding roads and paths mentioned as such in the settlement records or as to the waste or pasture lands of the Village or as to the course of source by which he may avail himself of water, to which he is entitled, from a tank, well or other source, the Tehsildar may, on application, after local enquiry decide the matter with reference to the previous custom in each case and with due regard to the convenience of all parties concerned.
(2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent Civil Court.'
11. The route by which a holder of land shall have access to his fields otherwise than by recognised roads, paths or common land will be decided even by the Civil Court with reference to the previous custom in each case and with due regard to the convenience of all parties concerned.
12. The nature of a customary easement is different from an easement of necessity which is acquired under Section 13 of the Act or from the easement which is acquired by prescription under Section 15 of the Act. The provisions of Section 12 of the Act are only applicable to easements that are acquired under Section 13 or 15 as is clear from illustration (a) to Section 18 which deals with customary easements. This Illustration runs as follows :
'By the custom of a certain village every cultivator of village land is entitled, as such, to ?raze his cattle on the common pasture. A, having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the custom.'
13. It will thus be seen that a tenant can acquire a customary easement. Further a customary easement can be acquired in a day by a person by becoming a tenant of some land in the village. The customary easement of having access to one's field would be available to tenants of land newly brought under cultivation.
14. The above customary easement is so well known that the Court can give effect to it even if it is not plead-ed in the plaint.
15. The result is that the appeal is dismissed. The costs of this appeal shall abide the result of. the suit.