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BepIn Behary Ghatak and anr. Vs. Ramnath Ghatak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal286,110Ind.Cas.422
AppellantBepIn Behary Ghatak and anr.
RespondentRamnath Ghatak and ors.
Cases ReferredBeeston v. Weate
Excerpt:
- .....has been advanced on behalf of the plaintiffs-appellants is that the defendants have acquired no right of easement by the temporary user of water flowing through an artificial channel and in support of this contention reliance was placed on the case of arkwright v. gell [1839] 5 m. & w. 203 and the case of kena mahomed v. bohatoo sircar [1863] marshall's rep. 506.2. now, the facts involved in this appeal are briefly these : the plaintiffs alleged that there was a dahar (low sunken pathway) contiguous on the east of their dags nos. 3032 and 3033 and that during the rainy season there is an overflow of the water of this dahar over dags 3032 and 3033 towards the west, that in 1328 the defendants out the northern ail of dag 3033 and thereby forced the overflow water to their lands on the.....
Judgment:

C.C. Ghose, J.

1. In this case the main contention that has been advanced on behalf of the plaintiffs-appellants is that the defendants have acquired no right of easement by the temporary user of water flowing through an artificial channel and in support of this contention reliance was placed on the case of Arkwright v. Gell [1839] 5 M. & W. 203 and the case of Kena Mahomed v. Bohatoo Sircar [1863] Marshall's Rep. 506.

2. Now, the facts involved in this appeal are briefly these : The plaintiffs alleged that there was a dahar (low sunken pathway) contiguous on the east of their Dags Nos. 3032 and 3033 and that during the rainy season there is an overflow of the water of this dahar over Dags 3032 and 3033 towards the west, that in 1328 the defendants out the northern ail of Dag 3033 and thereby forced the overflow water to their lands on the north. The plaintiffs alleged that the defendants had no right to take the water in this manner to their lands.

3. The defendants' case was that, during the rainy season the water from the dahar passed into Dag 3033 through one of the katans in the nala on the south of it, that the water then passed through a katan at station No. 6 in the northern ail of 3033 through a nala on the western boundary of Dag 3032 and thence into the land of one Provas Ghose and thereafter into Dag No. 3057 belonging to the defendants. They contended that they had done this for many years and had acquired a prescriptive right to cut the northern ail of Dag 3033 and take water into their Dag No. 3057 and other lands towards the north-west of Dag 3033.

4. The lower appellate Court found on the evidence adduced in this case that for nearly 32 or 35 years the defendants had been taking water into their Dag No. 3057 through a katan at station No. 6 into the northern ail of Dag No. 3033 and that this they had done as of right without interruption. The lower appellate Court accordingly held that the defendants had acquired a prescriptive right to cut the nothern ail of the plaintiff's Dag No. 3033 and take water into their Dag 3057. On appeal before us it is contended that the dahar in question is an artificial channel and that it was only during the monsoon that water could be had and that the temporary user of water through an artificial channel did not ripen into a right of easement.

5. Having regard to the facts found by the lower appellate Court it cannot, in my opinion, be said that the user in this case was of a temporary nature. The water which flowed through the dahar was avilable every monsoon, i. e , during all the months of the year when irrigation operations are ordinarily undertaken by agriculturists and there can be no doubt on the facts in this case that the water in question was used for a long series of years for the purpose of irrigating the defendants' lands. That being so, it seems to me that this case comes within the principle of the ruling in Beeston v. Weate [1856] 5 El- & Bl. 986 where the facts were as follows:

Plaintiff and defendant occupied contiguous portions of land. For more than forty years, and as far back as his living memory went, the occupiers of plaintiff's land have been in the habit of passing over defendant's land to a brook which lay on the other side of that land, and of damming up the brook, when necessary, so as to force the water into an old artificial watercourse which ran across defendant's land to plaintiff's land. They did this, for the purpose of supplying their cattle with water, whenever they wanted the water, except when the owners of defendant's land used the water, as they did at certain seasons of the year, for irrigation.

6. It was held by Lord Campbell, C.J., that the jury in that case were warranted in inferring a user as of right by the occupiers of the plaintiff's land of the easement on the defendant's land and that for the interruption of such easement the plaintiff might maintain an action against the defendant. Lord Campbell distinguished the case of Arkwright v. Gell [1839] 5 M. & W. 203 and pointed out that there could be an easement to conduct water across a neighbour's close by an old artificial watercourse. Lord Campbell observed that the direction of the Judge in the case of Beeston v. Weate [1856] 5 El- & Bl. 986 that on the facts the jury would be justified in returning a verdict for the plaintiff was correct as such enjoyment and acts, which without the existence of the easement would be tortious were evidence of the right to the water, and the fact of the channel along which the water flowed being artificial did not prevent the right being acquired, there being nothing to show that the artificial channel was made for a mere temporary purpose : See also Carson on Real Property Statutes, Edn. 3, p. 7. In the present case having regard to the findings of fact arrived at by the lower appellate Court there cannot be any doubt that the defendants did acquire a prescriptive right to take water in the manner alleged by them. In this view of the matter, the plaintiffs' suit must fail. The result, therefore, is that this appeal must be dismissed with costs.

Rankin. C J.

7. I agree.


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