N.C. Mukherji, J.
1. This is an appeal against the judgment and decree passed by Shri A. K. Nandy, Subordinate Judge, Asansol, dated 13th May, 1971, in Title Appeal No. 63 of 1970 modifying those of Shri T. B. Deb, Munsif, 2nd court, Asansol, dated 30th May, 1978 in Title Suit No. 144 of 1968.
2. The plaintiff is the appellant in this court. The plaintiff brought a suit for establishment of title, permanent and mandatory injunction. The suit arises out of a dispute in respect of a drain leading to a tank of the defendants from a village pathway passing over the lands of the plaintiff. The plaintiff is the owner of plot No. 412 on which the plaintiff's residence is situated. On the north-west of this plot there lies a tank on C. S. plot No. 414 belonging to the defendants. There is a nullah arising from the village 'Coolie Rd.' in the south west of plot No. 412 passing over plot No. 412 leading to the tank in plot No. 414. The water of the tank dries up in summer and in order to keep sufficient water the defendants wrongfully and illegally excavated this nullah on 11-6-68 and in order to divert the natural flow from north to south by placing an embankment on the road for taking water to the newly constructed nullah on plot No. 412. In spite of repeated protests, the defendants did not pay any heed. If the defendants are allowed to take water through the said nullah, then the residential house of the plaintiff will be damaged and the plaintiff will suffer irreparable loss.
3. The defence is that the tank on C. S. plot No. 414 and C. S. plot No. 412 both belonged to Maharaja of Cossimbazar. The water of the tank is being used for irrigation as well as for household purposes from time immemorial. The surplus water of the village and the highlands to the north during rains flows along the village Coolie path and enters into the tank through the disputed nullah. The water has been entering into this tank through the nullah since time immemorial as this is the only inlet for entering water into the tank. Rameswar Mukher, the predecessor of the defendants by implied grant from the Maharaja acquired an easement right to draw water along the said nullah and to fill the tank. The defendants have also acquired an additional right of easement by prescription to carry water along the said nullah. The learned Munsif, on a consideration of the facts, circumstances and the evidence on record, was of opinion that the defendants failed to prove that the disputed nullah was in existence from time immemorial or at least for the period of last 20 years. In that view of his finding, the learned Munsif decreed the suit. Being aggrieved, the defendants preferred an appeal before the learned District Judge. The appeal was heard by the learned Subordinate Judge, who, however, found that the defendants could prove acquisition of right of easement by prescription and as such, the learned Subordinate Judge allowed the appeal in part. The plaintiffs were granted only a decree for khas possession of the disputed land, subject to the enjoyment of easement right by the defendants. The prayer for injunction, both mandatory and prohibitory, was disallowed. Being aggrieved, the plaintiffs have come up to this Court.
4. Mr. P. N. Mitter, learned advocate appearing on behalf of the appellant, raises a very important question of law. It is contended that both the plaintiffs and the defendants are tenants under the same landlords and that being so one tenant cannot claim easement right against another. In this connection. Mr. Mitter also submits that the learned Munsif rightly found on evidence that the defendants failed to prove acquisition of right of easement by prescription and the learned court of appeal below was wrong to reverse that finding. In support of the proposition of law indicated by Mr. Mitter, Mr. Mitter relies on some decisions. The 1st case referred to by Mr. Mitter has been reported in (1902) ILR 29 Cal 363 (Mani Chandra v. Baikanta Nath). In this case, it was laid down that 'a tenant of land, even having a permanent right of tenancy on the land, cannot acquire an easement by prescription in other land of his lessor.' Mr. Mittter submits that if a tenant cannot claim easement right in respect of other land of his lessor, he also cannot claim such a right over the other land of his lessor which is possessed by some other person as a tenant. Mr. Mitter next relies on a decision, reported in (1893) 3 Ch D 48 which enunciates the same principle. The next case referred to by Mr. Mitter has been reported in (1868) 4 Ch A 133 (Gayford v. Moffatt). In this case, it has been held that 'the lessee of an inner close has by necessity a right of way suitable to the business for which the lease was made over an outer close which belongs to the same landlord. But the lessee of one close cannot as such by user acquire an easement ever another close which belongs to the same landlord.' Mr. Mitter also wants to get support from the decision, reported in (1904) 1 KB 457 (Kilgour v. Gaddes). It has been held in this case 'an easement, such as a right of way, cannot, under Section 2 of the Prescription Act, 1832, be acquired by a tenant by user over land occupied by another tenant under the same landlord, even if that user has existed for the period of forty years mentioned in the section.'
5. Mr. Sakti Nath Mukherjee, learned advocate appearing on behalf of the respondents, on the other hand, submits that the principle of law on which Mr. Mitter wants to rely, applies in English Law and the same is not applicable to Indian Law. Mr. Mukherjee also submits that according to the provisions of Section 4 of the Land Reforms Act none is a tenant since the promulgation of the Act and all the persons in occupation of land are owners and that being so, it cannot be said that one tenant is claiming easement right against another tenant. Mr. Mitter repels this argument of Mr. Mukherjee by submitting that the Land Reforms Act came into force in 1956 and the suit was instituted in 1968. That being so, it cannot be said that the defendants, as owners, could claim acquisition of easement right by prescription against the plaintiffs who are also owners, as the suit has been instituted in 1968, i.e., within 12 years from the coming into force of the Land Reforms Act. Considering the facts and circumstances of the case, I am of opinion that Section 4 of the Land Reforms Act does not come to the help of the respondents. Mr. Mukherjee in the next place, submits that assuming that one tenant cannot, claim easement right by prescription against another tenant under the same landlord even then such a right can be claimed on the basis of implied grant. In support of his contention Mr. Mukherjee first relies on a decision reported in (1879) 7 Ind App 240 (PC) (Maharanee Rajroop Koer v. Syed Abul Hossein). Considering the facts of the case, it was held that 'under the circumstances the court ought to presume a grant or an agreement between those who were owners of the plaintiff's 'Mahal' and the defendant's land by which the right was created. That being so, the plaintiff does not require the aid of the statute.' In the present case even accepting Mr. Mukher-jee's contention that as between two tenants of the same landlord one cannot (sic) (can ?) claim easement right against another on the basis of implied grant it will have to be seen whether the facts and circumstances and the evidence on record justify the court to make such a presumption. Mr. Mukherjee next relies on a decision reported in (1904) 31 Ind App 75 (PC). (Bholanath Nundi v. Midnapore Zamindary Co. Ltd.). In this case also, it appeared to their Lordships that on proof of the fact of enjoyment from time immemorial there could be no difficulty in the way of the court finding a legal necessity for the right claimed. Mr. Mukherjee next refers to a decision, reported in AIR 1923 Cal 8. (Tinkori Pathak v. Ram Gopal). This is a Bench decision and it has been held that 'although a tenant cannot acquire a prescriptive right of easement in land belonging to his lessor, he may claim a right of easement based on immemorial user, as there is no reason why an owner of land should not grant any privilege he pleases to his tenant. The relationship of landlord and tenant does not render inapplicable the principle namely, when enjoyment of a right of this description has continued uninterrupted for a long series of years, such enjoyment should be attributed to a legal origin and the Court should presume a grant or agreement. Where the origin of the tenancy is known, but the origin of the right of easement has not been traced the tenancy does not rebut the presumption of a grant which arises upon proof of immemorial use.' Mr. Mitter submits that he has nothing to sav with regard to the principle of law laid down in the cases, referred to above. But, it is only required to be seen whether in the present case, the defendants have succeeded in making out a case of using the drain from time immemorial. The last case relied on by Mr. Mukherjee has been reported in AIR 1936 Mad 682 (Nagarethna Mudaliar v. Sami Pillai) It has been held that 'even though raiyatwari land is held by several tenants under the Government, one tenant can acquire title by prescription or lost grant against another, for the estate of raiyatwari 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 raiyatwari 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.' His Lordship, in coming to this conclusion, relied on Derry v. Saunders, (1919) 1 KB 223. Though it has been said that one tenant can acquire title by prescription or lost grant against another tenant, both under the Government, yet on the principles of law enunciated in the cases, referred to above, I am of opinion that though one tenant can claim right of easement against another tenant on the basis of implied grant he cannot claim right of easement against another tenant on the basis of prescription.
6. True in the present case, in the written statement the defendants have stated that Rameswar Mukherji by implied grant from the Maharaja acquired an easement right to draw water along the nullah and to fill the tank. The said Rameswar Mukherji and after his death, his legal heirs, i.e., the defendants, have been filling up the tank with water flowing through the said drain continuously for more than 20 years, peaceably, as of right, openly and as an easement : the defendants have, thus, acquired an additional right of easement by way of prescription to carry water along the said nullah. Thus, it is seen that the defendants made out a case that there was a grant by the original owner and also that the defendants acquired right of easement by prescription. I find from the judgment of the learned court of appeal below that the defendants did not rely upon their plea of implied grant. What was pressed during the trial was their plea of prescription. I have already found that the defendants and the plaintiffs being tenants under the same landlord, the defendants cannot claim right of easement by prescription against the plaintiffs. I also find that the evidence adduced by the defendants to prove acquisition of right by prescription is far from satisfactory and the learned Munsif rightly rejected the said evidence and the court of appeal below has reversed the findings of the learned Munsif and has rejected the evidence of the plaintiff without cogent reason. This being the position, the judgment passed by the learned court of appeal below cannot be sustained.
7. In the result, the appeal is allowed on contest. The judgment and decree passed by the learned court of appeal below are set aside and those of the learned Munsif are restored. There will be, however, no order for costs in this appeal.