1. This appeal is by the principal defendants in a suit brought by the plaintiff to have it declared that he is entitled to irrigate certain lands from a certain tank by taking water through a channel cut through the defendants' land. The Court of first instance has found that the claim is barred by limitation, but, on appeal by the plaintiff, the learned District Judge has found that he has acquired the right which he claims and that there is no bar by limitation. In this appeal by the defendants it is contended, first, that the owner of the tank in question, which does not belong to the appellants, was a necessary party to the suit: and, secondly, that on the District Judge's own finding he should have held that the suit was barred by limitation.
2. On the first point it may be observed that the owner of the tank not having been made a party to the plaintiff's claim, he will not be bound by any decision that may be arrived at in this suit'; but it does not appear that he is an absolutely necessary party.
3. On the question of limitation, the District Judge has come to the conclusion on the evidence that the defendants removed or filled up the channel spoken of by the plaintiff in Baisakh 1314. The appellants ask me to say that, by the filling up or removal of the channel, they obstructed the plaintiff's enjoyment of his right of irrigation on 30th Baisakh 1314 corresponding with 14th May 1907 and to hold that this suit, instituted as it was on 14th June 1909, is barred. But I am unable to accept this view. The filling up of the channel would not necessarily constitute an obstruction of the plaintiff's enjoyment of his right, if no water for purposes of irrigation was required at that time and there was no refusal by the defendants to re-open the channel. This also appears to have been the view taken by the District Judge; for, having found that the defendants removed and filled up the channel in Baisakh 1314, he goes on to say that there was, in fact, no stoppage of water until within two years before the suit. As to when this stoppage occurred, there is no clear finding.
4. I am, therefore, of opinion that the appeal should be remanded to the learned District Judge for a clear finding on the following issue, namely, when was the plaintiff's enjoyment to the right which he had acquired interrupted within the meaning of the explanation of Section 26 of the Indian Limitation Act (IX of 1908)? The finding will be returned to this Court within two months from this date.