1. This revision petition is against the decree passed by the District Munsif of Kanigiri in S.C.S. No. 504 of 1926. This Small Cause suit and a number of others were filed by the Raja of Venkatagiri against several inamdars to recover compensation for the alleged unauthorised use by the defendants of the water of the plaintiff's tank for the second crop on the defendants' inams. Such compensation was claimed in the shape of water rate or price for the use of water said to be unauthorisedly used.
2. The defendants are the inamdars. The plaintiff is the Zemindar. There is no privity of contract between the plaintiff and the defendants. It is admitted that the tank water which was said to be used by the defendants belongs to the plaintiff. If the defendants used the water of the tank without having a right to do so they would be committing trespass and would be legally liable to pay damages to the plaintiff. But the defendants say that they are entitled to use the water of the tank for their lands. The question therefore to be decided in the case is whether the defendants have any right to use the water of the plaintiff's tank for their lands.
3. Now the plaint admits that the defendants are entitled to use the water of the tank for the first crop but not for the second crop. The right so admitted by the plaintiff and claimed by the defendants, obviously is a right of easement. The only question is what is the extent of that right? Is it limited to the first crop or does it extend to the use of water for all the crops that can be raised by the cultivation of the inams so long as there is, water in the tank? The District Munsif has found that there is no evidence on either side as to whether second crops were raised at the time of the grant. If the matter rests there, it would perhaps be a nice question of burden hi proof on the pleadings. The District Munsif has considered other circumstances in the case. He first of all referred to the liability to pay water cess in Government villages. In this connection he referred to the Standing Order No. 64 of the Standing Orders of the Board of Revenue. The liability of the inamdars to pay water-rate to Government is governed by statute, namely, the Irrigation Cess Act (VII of 1865), and the non-liability to pay depends upon whether there is, engagement to pay at the time of the grant within the meaning of Act VII of 1865. In deciding the case between the Zemindar and inamdars, 1 do not think we have anything to do with the Irrigation Cess Act or analogies based on it.
4. The District Munsif next refers to the decision in The Midnapore Zamindary Co. v. Muthappudayan I.L.R. (1920) M. 534 : 1920 40 M.L.J. 213. That is a case of landlord and tenant. The question in that case was whether the additional assessment can be claimed by a landlord in respect of a second crop of paddy raised with the landlord's water by the tenant on his wet holding and the decision of the point depended upon whether any usage disentitled the landlord to the same. It was held that the burden of proof was on the tenant. I do not think that case has anything to do with our case. At the same time I. do not mean to decide any question of burden of proof and the Munsif has referred to that case merely for showing that the burden of proof is on the inamdar, just as it lay on the tenant in that case. I do not think it is necessary to decide the question of burden of proof in this case.
5. The next point that the District Munsif has adverted to is usage. He begins this portion of his judgment thus:
As regards usage, it is admitted by the plaintiff's witness that second crop cist was never collected, or claimed by the plaintiff for inam wet lands before Fasli 1332. But except as regards one land, Survey No. 496-4, the subject matter of S.C.S. No. 504 of 1926, there is no evidence as to how long there has been second crop cultivation on the lands. P.W. 2 is the karnam of the village.
6. He states in cross-examination:
Second crop is being raised on the land comprised in S.C.S. No. 504 of 1926 every year for the last 20 years to my knowledge. Second crop was being raised on the other inams also now and then before Fasli 1332. Second crop cist was never claimed or collected for inam lands before Fasli 1332.
7. I may here observe that the District Munsif obviously accepts the Karnam's evidence. The District Munsif then says in his judgment:
Only one witness has been examined on behalf of the defendants. He is the 4th defendant in S.C.S. No. 504 of 1926, and he speaks only about his land, i.e., Survey No. 496-4. He deposes that second crop is being raised on that land for the last 25 years to his knowledge. He says that second crop was being raised on the land by his ancestors also but his evidence in this respett is at best hearsay and is therefore valueless.
8. Here I may observe that the District Munsif accepts the witness's evidence as to 25 years which is not hearsay but only rejects it for the period beyond it. This is also clear from the next sentence which runs thus:
Assuming that second crop was being raised on the land for about 20 years before Fasli 1332, the mere abstention o the plaintiff from claiming water-rate during that period cannot disentitle him from claiming it now. The evidence is very meagre and insufficient to establish the alleged custom or usage.
9. This sentence shows that the District Munsif accepts not only the Karnam's evidence but the evidence of D.W. 1 relating to 25 years which is not hearsay, for only in this way can we have evidence for 20 years prior to Fasli 1332. As I already pointed out, the question in the case is not one of custom or usage but one of easement. If it is one of custom or usage, I am bound by the District Munsif's finding of fact. But 20 years' enjoyment of the water certainly makes out an easement by prescriptive right as enjoyment has gone up to the end of Fasli 1334 (vide plaint). It is unnecessary in this case to distinguish easement by grant and easement by prescription. The facts justify the finding of the easement by either method. Vide Rajrup Koer v. Abdul Hossein On the facts found by the District Munsif, the defendant in S.C.S. No. 504 of 1926 has established a right of easement to use the water of the plaintiff's tank for two crops. I may incidentally observe that the defendants in the other lands have not established such an easement. The result is while all the decisions of the District Munsif are correct, only the decision in this case is erroneous and has to be set aside.
10. Apparently the land Survey No. 496-4 belongs to defendants 1, 2 and 4. Anyhow the Karnam's evidence relates to all the lands comprised in S.C.S. No. 504 of 1926. Relying on Order 41, Rule 4, Civil Procedure Code, that is on the ground that the whole decree is now questioned before me and that the finding of fact relates to all the defendants, I set aside the whole decree and dismiss the suit against all the defendants, with costs of the 4th defendant only throughout.