1. In this case the plaintiffs-appellants sued for a declaration of their right to take water from a certain tank, the property of the defendants, for the purpose of irrigating a piece of land 9 cottas in area.
2. In a previous suit between the same parties or their predecessors-in-interest, by a consent decree dated the 13th of March 1874, this right of the plaintiffs was established but it appears that at that period the plot in question was under mulberry, and the lower appellate Court has found that the plaintiffs last exercised their right 17 or 18 years ago, when they ceased to grow mulberry trees. In the interval apparently the land has been used either for the purpose of growing kolai, a crop which does not require irrigation or has remained fallow.
3. The plaintiffs now seek to grow sugarcane and as the defendants averred that their right had been extinguished and denied that they had at any time a right to take water for the purpose of cultivating any crop other than mulberry, the plaintiffs brought this suit.
4. Both the lower Courts have found that the plaintiffs' right has not been extinguished but differing from the Court of first instance, the lower appellate Court has held that in the exercise of their right, the plaintiffs were restricted to the cultivation of mulberry.
5. The plaintiffs have appealed to this Court, and on their behalf it is contended that provided they do not impose any additional burthen on the servant tenement, they are entitled to take water for the purpose of irrigating any crop whatsoever. On behalf of the respondents, on the other hand, it is urged that from the non-user for a period of 17 to 18 years, the lower Courts should have held that the right had been extinguished. Both parties are agreed that if the right continues and is not restricted to the cultivation of mulberry, the case must be remanded in order that the extent of the right may be determined.
6. In support of his contention that the right has been extinguished, the learned pleader for the respondent relies upon Section 26 of the Limitation Act XV of 1877, and argues that as there had been no actual user within the 2 years next before the institution of the suit, the right had ceased to exist. There appear to be two answers to this argument. In the first place, it overlooks the distinction between enjoyment' and actual user' drawn in the case of Koylash Chunder Ghose v. Sonatun Chung Barooie 7 C. 132 : 8 C.L.R. 281. In the next place, in the present case the plaintiff does not rely upon proof of long enjoyment but on his decree so that, in my opinion, the section relied on has no application. Moreover, it appears to be settled law that an easement once acquired is not necessarily lost by mere non-user and that the question of abandonment is one of intention to be decided on the farts of each particular case. It has not been suggested that apart from the non-user, there is anything in the facts and circumstances of the present case from which the intention to abandon should be inferred. I, therefore, hold that the lower Courts have not erred in finding that the plaintiff's right has not been extinguished.
7. To determine the question raised on behalf of the appellants, we must construe the decree of 1874.
8. The decree was based on a petition of compromise and there has been some controversy as to which of the contending parties should have produced this petition. As neither party has chosen to produce it, I can only presume that, if produced, it would throw no light on the question now at issue. We are thus left with the decree. In the recitals in the decree, the plot of land now in question is described as 'plaintiffs' 9 cottah mulberry land' and from this the learned District Judge has inferred that the right declared and established was restricted to this, kind of cultivation But as pointed out by the Munsif, there is no such express limitation in the operative or ordering portion of the decree and, in my opinion, the more reasonable view to take is that the word 'mulberry' was used for the purpose of description or identification only and that the right declared was not restricted to the special purpose or particular kind of cultivation for which the dominant tenement was at the moment used. In other words, the decree, in my opinion, gives the plaintiffs the right to a reasonable use of the water of the defendant's tank to the extent to which the same was used prior to the date of decree no matter what crop the plaintiffs choose to grow. In support of this view, I may refer to Lattrell's Case 4 R. 86a, and to the cases of Allan v. Gomme 11 A. and E. 759 : 3 P. and E. 581 : 9 L.J.Q.B. 258, Groat Western Railway v. Talbot (1902) 2 Ch. 758 : 71 L.J. Ch. 835 : 87 L.J. 405 : 51 W.R. 312 and Watts v. Kelson L.R. 6 Ch. App. 166 : 40 L.J. Ch. 126 : 24 L.T. 209 : 19 W.R. 833. In the result, this appeal is decreed and the case remanded to the lower appellate Court to determine the extent of the plaintiffs' appellants' right. As this question has apparently not been fully, appreciated in either of the Court below, the parties will be at liberty to adduce further evidence, such evidence to be taken either by the District Judge or by the Court of first instance under his directions. As the appellants have substantially succeeded, they will have their costs of this appeal.
9. It should be here noted that as the third' appellant died more them a year ago, and as no one has been brought on the record in his place, as regards him, the appeal has abated.