1. The only question which arises in this second appeal is whether a tenant can acquire the right to irrigate his field from the landlord's tank by continuous and open user from time immemorial. The lower Courts have found that he can, and we agree with them. The matter seems to be concluded by the judgment of Maclean, C.J., in Madub Das Bairagi v. Jogesh Chunder Sarkar 30 C. 281; there the plaintiff was a cultivator of the village and the tank belonged to the maliks of the defendant, who claimed exclusive right to open the irrigation channels leading up into the tank at their pleasure and denied the right of the tenant. The learned Chief Justice pointed out that on the findings of fact in the case, which apply equally to the present case, 'we may reasonably hold that a presumption arises that this enjoyment had an origin which conferred a right;' and he relied upon the case of Ramessur Persad Narain Singh v. Koonj Behari Pattuk 4 C. 633; 6 I.A. 33. He pointed out that some doubt might arise on the principle of English cases; but the English cases did not seem to be quite in accord with the view entertained in Indian cases, and on the whole he came to the conclusion that a case of this nature is governed by the principle of the Privy Council authority to which we have just referred.
2. The learned Vakil for the appellants cites to us the case of Subramania Pillai v. The Secretary of State for India 34 M. 351; 9 Ind. Cas. 9; 9 M.L.T. 18l; 21 M.L.J. 132 where, as preliminary to clearing the ground in a somewhat complicated case, the Madras Judges laid down, and very properly laid down, 'whether enjoyment is set up as the basis of a title by prescription or as evidence on which a lost grant should be presumed, the same characteristics will be necessary.' The same characteristics of what? Obviously the answer is of the evidence; and the legal question as to whether a tenant can be said to hold against his landlord as of right does not arise. The evidence in the case is the same as it would have been if it was another person holding as of right against the landlord. It has the same characteristics. The user is continuous, it is open, and if it were not for the fact that the plaintiff is a tenant and, therefore, may be said to have been holding by permission, it would be as of right. The characteristics, therefore, of the evidence are the same and, therefore, an ancient grant will be presumed and this presumption seems to us to be all the stronger from the fact that the old Regulation of Bengal IX of 1793 and Section 76 of the Bengal Tenancy Act contemplate tanks and reservoirs for the storage of water for agricultural purposes, and the prescriptive right to the use and storage of water as claimed by the tenant against his landlord after immemorial user is, therefore, not repugnant to the law in this country, as was pointed out in the argument in the case of Madhub Das Bairagi v. Jagesh Chunder Sarkar 30 C. 281 to which we have just referred.
3. We think that the learned Judge in the Court below is quite right in his finding of fact that there was an implied grant and that this right to the use of water is based upon such grant, and the appeal is, therefore, dismissed with costs.