1. These three Civil Revision Petitions can be taken together, the facts with the exception of a small difference in C.R.P. No. 1029 of 1935 being exactly similar. The only claim in the suits which arises to be considered here is the claim of the plaintiff, the Maharajah of Venkatagiri, to recover compensation for water taken by the respondents, his tenants, to raise a second crop on the manyam lands. The respondents resisted that claim on the ground that they had obtained a prescriptive right to the user of the water for the second crop without any liability to pay for it. The learned District Munsif accepted the respondent's evidence that at no time for considerably over 20 years did the petitioner claim or recover compensation for the water taken by the respondents for the second crop raised on these lands and he accordingly held that the respondents had acquired the easement for the user of the water and dismissed the petitioner's claim to payment for that water. The lower Court's finding on the question of fact, namely the user of the water for over 20 years, must of course be accepted, and it is only the legal position arising from that finding that has to be considered here. It is clear that this finding means that the respondents have used the water for the period in question openly and without interruption. Indeed these points were not contested in the lower Court as the evidence on the plaintiff's side shows P.W. 1, the karnam, in cross-examination stated: 'To my knowledge, second crop has been raised in manyam from a very long time past.' There is no evidence whatsoever of any interruption in such user. The petitioner takes two points here: (1) that it has not been proved that the respondents used the water under any claim to do so as of right, and (2) that the casement claimed is one incapable of being prescribed for as being of a precarious nature, it being contended that at the most the user of the water must be taken to have been subject to the condition that there would be sufficient water in the tank and after the zamindar had satisfied his own requirement.
2. On the first point Midnapore Zarnindari Co., Ltd. v. Muthapudayan AIR 1921 Mad 195 was cited. In that case the question was whether the appellants were entitled to charge for water taken by the tenants for a second crop, and it was held that the landlord is prima facie entitled to claim such additional charge, provided it is not against the established custom of the estate or express or implied contract between the parties; and the burden of proving such established usage or express or implied contract was placed upon the tenants. Siti Kant a Pal v, Radha Gobind Sen AIR 1929 Cal 642, which is certainly more in point than the case just referred to, was also cited. There it was held that for the creation of a right of easement by prescription, there must not only be a peaceable and open enjoyment without interruption for 20 years, but that enjoyment must be an enjoyment as of right, that long user is not sufficient for a finding of an enjoyment as of right, that whether an enjoyment is as of right or not is a pure question of fact and that enjoyment as of right cannot be inferred as a matter of course from a finding of user only.
3. On the second point, reference is made to Burrows v. Lang (1901) 2 Ch 502. In that case it was held that a precarious easement is unknown to the law. This decision turned upon the circumstances in that case, it being held that the watercourse which was constructed, diverting water from a natural stream, was for a temporary purpose; and a number of authorities bearing upon this point are referred to in the very learned judgment of Farwell, J. The argument of Mr. Upjohn, K.C., which was accepted by Farwell, J. was that the watercourse was constructed simply for the purpose of the mill and as there could be no expectation that it would be continued if the mill were abandoned, the purpose was merely temporary and the plaintiff acquired no easement and that the right claimed to use water, the supply of which could be entirely discontinued at the defendant's will, was a precarious right unknown to the law and repugnant to the nature of the easement. In Ayyanna v. Secretary of State AIR 1933 Mad 646 Bardswell, J., who delivered the judgment of the Bench, on page 704 observed:
And further as is shown in para, 7 of the first appellate judgment, there has not been a continuous and consistent use of the water by the plaintiffs or their predecessors by the aid of which they could raise their crops and which could be deemed beneficial. In some years there has been insufficient water for the raising of crops and in some years there has been an excess of it. When such is the case, I do not see how there can be either an implied engagement or the acquisition of an easement. Nor is it a case of natural flow. It is a matter of water overflowing from higher lands to lands lying lower down. The supply of water is precarious and when in the circumstances the plaintiffs cannot be held to have obtained any prescriptive right, they cannot insist on its coming down in any sufficient quantity to enable them to raise crops or even on its coming down at all.
4. I was myself a party to that judgment and entirely agree with those observations which were founded on the facts proved in that case and are not present here. The learned counsel for the petitioner then addressed himself to one distinguishing feature which he contended appeared from the facts in C.R.P. No. 1029, namely that the right claimed was only shown to relate to a supply of water to an area marked out each year by the tenants and that as this area was not shown to be the same each year, no right of easement could be claimed in respect of it. On the other side, in C.R.P. No. 1009 the legal position has been most ably argued by Mr. Krishnamurthi as amicus curiae and in C.R.P. No. 1030 by Mr. Thyagarajan also as amicus curiae, and I am very much indebted to both of them and also to Mr. Shama Rao who appeared for the respondents in C.R.P. No. 1029 for their great assistance.
5. Mr. Krishnamurthi referred to a number of cases and the first of them is a decision of Ramesam, J., namely Pitchiah v. Govinda Krishna Yachendra Varu AIR 1930 Mad 941, where exactly the same right of easement was claimed by tenants of the same estate as that here. There the suit was by the zamindar claiming the same reliefs as in this suit, the right of the tenants to use the water of the tank for the first crop being admitted, but as regards the second crop disputed, and it was held that as the evidence established the defendant's user of the water of the suit tank for raising a second crop for 20 years and more, the defendants were entitled to an easement by prescriptive right. The question of whether the water was being used under a claim as of right was not argued before Ramesam, J., nor was it contended that at the most it could only be a precarious easement; and this decision cannot therefore be taken as covering the contentions raised by the petitioner here.
6. The next case referred to was P. Venkanna v. Rajah of Bobbili , a decision of the Privy Council. There water flowed naturally through the inarmdars' channel so as to water their first crop. For a long period, the inamdars during the drier season constructed a temporary dam in the zamindar's channel so as to raise the level of the water there in and cause it to flow down their channel. By this means they raised a second crop. The right to use the natural flow of the water for the first crops was admitted by the zamindar, but the right to do it for the second crops was disputed. The tenants claimed the right to do so either by an agreement made when their channel was constructed or by long user. It was held that the long continued user must be ascribed to a lawful origin or had to be implied from the circumstances and relation then existing and that the right was sufficiently definite to be acquired by prescription; and this latter finding is sufficient to dispose of the petitioner's second contention. It is true that in that case the tenants had constructed a dam in order to cause a flow of water down a small channel irrigating the lands in question to which otherwise in ordinary years the water would not flow; and in Beeston v. Weate (1855) 119 ER 748, a decision referred to in the judgment of their Lordships' Board, the position was somewhat similar. There the plaintiff had been in the habit of going on the defendant's land for the purpose of damming a brook at such times as the lowness of the water in the brook rendered it necessary so as to force the water into an artificial channel which ran across to the defendant's land from the plaintiff's land. The water was used for the plaintiff's cattle, but it was not always available as at certain seasons of the year it was used by the occupiers of the defendant's land for irrigation. The indefiniteness of the right to dam the brook when necessary and to take the water when available was not considered to be any bar to its acquisition by prescription. This case also is decisive on the first question but in that case there were also overt acts performed by the owner of the dominant tenement.
7. Ismail Biswas v. Emperor : AIR1930Cal289 was also relied upon by Mr. Krishnamurthi in support of his argument that evidence of long user was sufficient to support a claim to such an easement. That was a decision of Rankin, C.J. in a criminal revision case arising out of an alleged offence Under Section 430, I.P. C, i. e. of committing mischief by doing an act which caused or which was known to be likely to cause a diminution of the supply of water for agricultural purposes. The question there considered was whether the complainant had a right to take the water from the tank to irrigate the lands, and Rankin, C.J. observes:
It appears to me that if the evidence is that a person has the occupation of lands and has been taking water to irrigate his lands through a channel from this tank, that is pretty good evidence that he has some right so to do. This is not one of these things that can be concealed or that can be done behind the back of people so that nobody in the neighbourhood can possibly get to know of it. It is done openly and on the face of it it appears to me that the fast of enjoyment of such a right as that is some evidence of the right itself.
8. Another case is Kunjammal v. Rathnam Pillai AIR 1922 Mad 5, a decision of Kumaraswami Sastri and Devadoss, JJ., which I consider to have the most important bearing upon the first point raised. There the plaintiff proved that his scavenger was cleaning his privy for the last 30 years and more by passing through the defendants' house and it was held that the presumption was that the user was of right and that the plaintiff had acquired a right of way by long user apart from Section 15, Easements Act, and that the presumption of right from long user is not in India the presumption de jures et de jure but is one which can be rebutted by proof of facts which are inconsistent with or militate against the inference. On page 637 it is stated:
Where user is proved, the presumption is that it is of right till the contrary is proved. Gale on his valuable treatise on easements observes: 'The effect of the user would be destroyed if it were shown that it took place by the express permission of the owner of the servient tenement, for in such a case the user would not have been had with the intention of acquiring or exercising a right. The presumption, however, is that a party enjoying an easement acted under a claim of right until the contrary is shown.
9. It was contended in that case, however, that the presumption in favour of the exercise being as of right rather than license does not apply to India and a number of cases upon that point were referred to, which are considered in the judgment and after a consideration of them it is stated on page 639:
We do not think that the oases cited by the appellant's vakil establish that no presumption should be raised by user and that in this country enjoyment of a right of way should be presumed to bo by licence till the contrary is proved. All that they decide is that there are conditions and circumstances to be taken note of in this country before the Court can come to the conclusion that the exercise of a right of way can be held to have been as of right. What the circumstances are which militate against the user being exercised as of right must like any other fact be pleaded, and' it is for the Court to consider whether having regard to the existence of all or some of the conditions and considerations referred to by Banerjee, J. a reasonable presumption can be drawn as to the exercise being of right. The presumption of right from long user is not in this country a presumption de jures et de jure. It only starts a party with a presumption in his favour which can be rebutted by proof of facts which are inconsistent with or which militate against the inference which in the absence of evidence by the defendant would entitle plaintiff to a decree.
10. The decision in that case, which of course is binding on me and with which I entirely agree, is of the greatest assistance to me. The respondents having clearly proved long user for a period of 20 years and more started with a presumption in their favour that they were using the water as of right and no attempt was made to show that they were doing so with the permission of the zamindar or any facts to negative the claim as of right. Other cases cited upon this point by Mr. Krishnamurthi in support of his argument were Madhub Doss Bairagi v. Jogesh Chunder Sarkar (1903) 30 Cal 281, in which reference is made to Ramessur Persad Narain Singh v. Koonj Behari Pattuk (1879) 4 Cal 633, Rajrup Koer v. Abdul Hoosein (1881) 6 Cal 394 and Tinkori Pathak v. Ram Gopal : AIR1923Cal8 , where it was held that in India a tenant can establish his right to irrigate his field from his landlord's tank by proof of open and continuous user from time immemorial. Mr. Tyagarajan in support of his argument referred me to Ali Mohammed v. Sheik Khatu AIR 1923 Cal 200 and Piare Lal v. Ishaq Lal AIR 1926 Lah 522. In the latter case it was held by Shadi Lal, C.J., and La Rossignol, J. that:
There is ample authority for the proposition that an open user continued without interruption for a long time and not shown to be attributable to any permission on the owner's part is prima facie evidence of enjoyment as of right.
11. For the respondents in C.R.P. 1029, Mr. Shama Rao contended that the easement there claimed was sufficiently definite as regards the area and extent of land in respect of which the easement was claimed, As I understand the facts, they are that each year an area was marked out by the tenants of a sufficient size to be irrigated by the water flowing from the tank. These tenants, therefore, by long user have established a right to get an amount of water sufficient to irrigate a portion of the lands. In some years there may not have been enough water to irrigate as large an area as in other years and in some years there may have been an amount sufficient to irrigate a larger area than in other years--though upon this point there has been no evidence, I take that to be the admitted position--I and having regard to Beeston v. Weate (1855) 119 ER 748, the right claimed is sufficiently definite to be capable of being prescribed for. The result is that these civil revision petitions must be dismissed with the costs of the respondents in C.R.P. No. 1029.