Renupada Mukherjee, J.
1. The appellant before me was defendant in the trial court. The plaintiffs-respondents instituted a suit against him for a declaration that the plaintiffs have got a right to irrigate some agricultural plots of theirs described in schedule Kha of the plaint from the water of a tank described in Schedule Ka of the plaint. It is an admitted fact that this tank was at one time the khas property of the landlords who were pro forma defendants 2 and 3 in the trial court and that about tour years before the institution of the present suit this tank was settled by the pro forma defendants with appellant Hainan Mondal.
The plaintiffs claimed a right of irrigating their lands with the water of this tank by virtue of a prescriptive right ok easement as also by user of the water of the tank from time immemorial from which a case of lost grant might be inferred. The case of the plaintiffs further was that the defendant was filling up the tank by denying the plaintiffs' right of irrigation. So they prayed for a declaration of their right and also for a permanent injunction upon the defendant restraining him from filling up the tank, and, further, for issuing a mandatory injunction upon him directing him to reduce the tank to its former condition by taking away the earth already thrown into it.
2. The defendant denied the above right of the plaintiffs and contended that their lands were never irrigated with the water of the disputed tank, and so they were not entitled to get any of the reliefs prayed for. The learned Munsif who heard the suit dismissed it holding that the plaintiffs had no right to irrigate their fields with the water of the disputed tank. On an appeal being preferred by the plaintiffs the lower appellate court held that the plaintiffs had succeeded in making out their right of irrigating the Kha schedule lands with the water of the disputed tank on the strength of a lost grant, and so the lower appellate court decreed the suit declaring the above right of the plaintiff and also restraining the defendant from sifting up the tank by throwing earth into it.
The prayer for mandatory injunction, made by the plaintiff, was, however, disallowed. The defendant has preferred this second appeal from the above judgment and decree of the lower appellate court and the plaintiffs have also filed a cross-objection regarding that portion of the decree of the lower appellate court by which the prayer for mandatory injunction was refused. The cross-objection was not, however, pressed at the time of hearing of the appeal.
3. The only point which arises for decision in this appeal is whether the lower appellate court was justified in coming to a finding, that the case of the plaintiffs that they had a right to irrigate their fields with the water of the disputed tank on the strength of a lost grant, was established upon the evidence adduced by them. Mr. Mukherjee appearing on behalf of the defendant-appellant submitted that although in the plaint the expression lost grant was used no such case was sought to be made out in the trial court by the plaintiffs by adducing any evidence of lost grant.
On a reading of the plaint as also upon an examination of the evidence on record, I find myself unable to accept this contention of Mr. Mukherjee.Paragraph 2 of the plaint coupled with the prayer contained in para. 10 of the plaint would show that the plaintiffs wanted a declaration of their alleged right of irrigation not only on the strength of prescriptive user but also by virtue of user of the water of the tank from time immemorial. The elements of a claim founded upon lost grant are certainly contained in the plaint.
It is no doubt true that oral evidence was altogether insufficient for the purpose of establishing a case of lost grant. That is, however, another matter to which J shall advert myself presently. I may just mention here that the contention of Mr. Mukherjee that the plaintiffs made no case of lost grant in the trial court must be rejected. The next contention urged by Mr. Mukherjee was that the lower appellate court misconceived the law in coming to a conclution that a case of lost grant was made out, specially in view of the fact that the oral evidence adduced on the side of the plaintiffs fell far short of establishing a case of lost grant.
The judgment of the lower appellate court would show that it has relied mainly upon the entry in c. s. khatian for the purpose of coming to a conclusion that the plaintiffs had acquired their alleged right of irrigation by lost grant. Mr. Mukherjee contended that the c. s. khatian was finally published in this case in 1921 and that the presumption, of correctness which attaches to the entry should be carried forwards from the date of the publication of the record-of-rights and the presumption should not be carried backwards from the date of the final publication, as has been done by the lower appellate court.
In support of this contention reliance was placed by Mr. Mukherjee on the case of -- 'Manmatha Nath Haldar v. Girish Chandra Roy : AIR1934Cal707 . That case no doubt would support broadly the contention put forth by Mr. Mukherjee. But in this case, I think, the particular entry on which reliance has been placed by the plaintiffs should be given quite a different interpretation from the interpretation given either by the trial court or by the lower appellate court. The trial court while considering the entry of c. s. khatian observes that at best it would show that the plaintiffs were irrigating their lands from the water of the disputed, tank at the time when the khatian was finally published.
The lower appellate court has observed that from the nature of the entry it should be presumed that the right of irrigation in question had been exercised by the plaintiffs for more than twenty years before the institution of the suit in the trial court. In my judgment, either mode of appreciating the entry in the record-of-rights in relation to the tank in dispute is not the correct mode.
It should be remembered that until the recent settlement in favour of the defendant-appellant the tank was the khas tank of the Banerjee landlords. As against this tank it has been recorded in plot No. 292 of khatian No. 245 that the tank was meant for supplying water to several c. s. dags recorded against the tank. These are the dags which have been enumerated in schedule Kha of the plaint. In my judgment, the proper way of reading the entry is that the owners of the c. s. dags recorded as having a right of irrigation from the tank had got a grant from the landlord, and that grant was a burden upon the tank.
In my opinion, where it is recorded against a khas tank of a landlord that the tank is to supply water for irrigation to some particular c. s. plots, the entry should be construed as recording a grant. There would be no sense in saying that the entry merely shows that the owners of the plots in question were irrigating their lands as a matter of factfrom the water of the tank at the time of settlement operations without any right.
4. Mr. Mukherjee contended on behalf of the appellant that in such a case as this no presumption of lost grant should be made on the basis of the record-of-rights and in support of this contention he relied upon the case of -- 'Monohar Das Mohanta v. Charu Chandra Pal', (S) : 1ITR1168(SC) . That was, however, a case of an entry of some particular lands as 'niskar' lands within the ambit of the 'mal' or regularly assessed mahal of an estate. An entry like this can bear no analogy to the entry with which we are concerned in this appeal.
In fact, I am not presuming any case of lost grant from the entry in the c. s. record against the disputed tank, but what I mean to say is that the entry itself records the grant, although the actual grant might have been lost or missing. In that view of the matter it was for the defendant-appellant to rebut the presumption raised by the entry in the record-of-rights by showing that the entry is a wrong entry. No such attempt was made on behalf of the appellant, although one of the landlords, namely Phani Bhusan Banerjee (D. W. 4) was examined on his behalf.
That landlord proved that the disputed tank had been settled with the appellant; but he never says that the settlement record showing that the tank was burdened with the obligation of supplying irrigation water to plaintiffs' plot is incorrect. In these circumstances, I am of opinion that apartfrom oral evidence adduced on the side of the plaintiffs, a case of lost grant has been made out by theentry in the c.s. record which remains unrebutted.The lower appellate court was, therefore, justified in decreeing the plaintiffs' alleged right of irrigation, although my reasons for upholding that decree aresomewhat different from the reasons given by thelower appellate court.
5. I therefore, hold that there is no substance in this appeal which is dismissed with costs to theplaintiffs-respondents. The cross-objection is also dismissed.
6. Leave to appeal under Clause 15, Letters Patentis asked for and is refused.