1. The plaintiff sued to establish a right to erect a dam across a stream called Tampara to prevent its flowing into the Gummidi-gedda and so to divert it into the old channel marked F in the plan to plaintiff's lands in Chitrapadu. Defendant maintained that F was a new channel and that the custom was for the water to flow to Chitrapadu by the Gummidi-gedda to plaintiff's lands, and that plaintiff was not entitled to place a dam across the Tarn-para for the purpose mentioned.
2. The first issue was as to the custom of erecting the dam at B in the plan. The second as to whether F was an old channel or one recently constructed.
3. Both the Lower Courts found that plaintiff had established his right.
4. In appeal it is contended that the documents relied on by plaintiff were inadmissible in evidence against the defendant and that, if admissible, their purport and that of the decision in suit 79 of 1868 had been misconstrued.
5. To take the last point first, the meaning of the last paragraph of the decision in suit 79 of 1868 which was put in evidence by defendant was that the right plaintiff claimed was established and that that right was to raise a dam,' not as it is translated in page 14 of the printed paper 'across,' but to' Gummidi-gedda, so as to direct the water of Tampara which flows into the Gummidi-gedda, into the channel dug for Chitrapadu village, and so convey the water to the fields of Chitrapadu. There seems to have been no misconstruction of the decision.
6. It is clear that the decision was not that the custom was, as now contended by defendant, for the water to flow by the Gummidi-gedda channel, but for it to flow by another channel. Otherwise, no intelligible meaning could be given to the words 'into the channel dug for Chitrapadu village.'
7. The only channels to Chitrapadu connected with Tampara are admittedly the Gummidi-gedda and the channel F. The fact that this decision was passed, though it is no evidence of the custom as against defendant (who was not a party to it), is prima facie evidence of the fact of the existence of the channel F, at the date of that litigation (Section 11*, Evidence Act). It was therefore evidence--unless rebutted--upon which the Courts might come to the conclusion in connection with the other admissible evidence that the channel F was not a newly constructed channel as alleged by defendant, but at least as old as 1869.
8. The Exhibits A and B (Magisterial decisions) that are objected to are some evidence against defendant, for they show that the right to put up the dam was claimed on the one side by the villagers of Chitrapadu and resisted on the other side by the Dalayapeta villagers, and this is evidence that a dam was raised as long ago as 1860 and 1864 for the purpose for which the right is now claimed.
9. There appears thus to be a chain of facts from 1860 to 1871 showing a practice observed from time to time during that period by the villagers of Chitrapadu and the plaintiff's father.
10. It seems to us that this, taken with the statements of the witnesses, was evidence upon which the custom might be found to have existed, as the Courts have found, for eighteen years up to 1871.
11. Then it is said this is an easement of water, and if it is not by grant, it can only be claimed by prescription, and the Limitation Act prescribes twenty years for the acquisition of the easement and the period must end within two years prior to the institution of the suit, whereas in the present case it ended in 1871, seven years before the suit was instituted. But it was held by Sir Colley Scotland (though no doubt what was so held was an obiter dictem) in the case of Ponnuswami Tevar v. The Collector of Madura 5 M.H.C.R. 5 that a grant of an easement might be presumed from a twelve years' user. This view has followed by the Calcutta High Court. There seems to be nothing in Act XV of 1877 to prevent a person from suing to establish his right to an easement acquired under the Law in force prior to the enactment of that Act. Maharani Rajroop Koer v. Syed Abdul Hossein L.R. 7 IndAp 240.
12. The provisions of Section 4 of the Act apply only to the periods named in the second schedule. The period for the acquisition of easement is provided for in the body of the Act and suits for easements acquired otherwise than in accordance with Sections 26-28 do not seem to be excluded. If therefore plaintiff is in time, he has apparently enjoyed the right for many years and there would appear to be no ground for calling in question the propriety of the decision under appeal.
13. Plaintiff is held to have exercised his user up to 1871 and would have twelve years from 1871 to institute his suit to recover his right to the easement, which is an interest in immoveable property. He is, therefore, in time.
14. The second appeal should, on the above grounds, we think, be dismissed with costs.
*When facts not otherwise relevant become relevant.
[Section 11: Facts not otherwise relevant are relevant
(1) If they are inconsistent with any fact in issue or relevant fact;
(2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.]