1. The plaintiffs-respondents brought a suit out of which this appeal has arisen for confirmation of possession of a certain tank on establishment of title thereto as appertaining to their chak Keshabad or in the alternative declaration of their right of easement for taking water from the said tank for irrigating their lands in that chak. The learned Munsiff who tried the case dismissed the suit and found against the plaintiffs on both the points. On appeal the learned Subordinate Judge agreed with the Munsiff as to the finding on the question of title but held that the plaintiffs succeeded in proving their alleged right of easement for drawing water from the tank for irrigation purposes.
2. Against this finding of the lower appellate Court several objections have been taken. Firstly, it is urged that the plaintiffs and the defendants being tenants under the same landlord, no right of easement can be acquired by the plaintiffs against the defendants. This point was not raised in the pleadings in any of the Courts below and we have not sufficient findings as to enable us to examine this point.
3. It is next urged that there is no finding that the user by the plaintiffs of the water of the tank was open, peaceful, uninterrupted and as of right. There is no doubt that the judgment as recorded by the learned Subordinate Judge is not happily worded and is open to the criticism made by the learned vakil for the appellants. But reading the findings of the learned Judge and his observations on the points raised before him, we think that it will serve no useful purpose to remand the case back to him for inserting in his judgment words which are to be found in the Section 26 of the Indian Limitation Act. The findings of the learned Subordinate Judge are that according to the defendant's own witnesses there is a cut in the bank of the tank towards the plaintiff's chak which has existed for long over 20 years, that the plaintiffs have no other source of irrigation, that it was absolutely necessary for them to take water from the tank for the purpose of irrigating their lands and that it may be presumed that they have been exercising this right for a considerable time. This conclusion, the learned Subordinate Judge draws from a certain solenama between the parties filed in a Criminal case. Taking into consideration these circumstances the learned Judge proceeded to examine the evidence adduced by the parties and observes that in the light of the above circumstances he prefers the evidence on the plaintiff's side and holds that the plaintiffs have a right of easement over the tank and that the evidence of the defendants appeared to him to be very poor and unworthy of credit on this point. On these considerations be found that the plaintiffs exercised that right for over 20 years ending within 2 years before suit. Then he refers to the evidence of one of the witnesses of the plaintiffs that there was a dispute between the parties about the ownership of the tank since 1305 and remarks that the dispute about the ownership of the tank did not necessarily indicate that there was a dispute over the plaintiff's right to take water for irrigation. In the result he allowed the appeal and declared the plaintiff's right of easement over the tank and ordered that the plaintiffs would be at liberty to take water from the tank in suit for irrigation of their lands in Keshabad chak whenever necessary by cutting an opening in the bank of that tank adjacent to that chak at the point marked B. There is a further direction that the plaintiffs should be bound to close up that opening after the necessary quantity of water has been drawn. These findings in our judgment amount to exercise by the plaintiff of this right of easement as of right, for a period of 20 years, uninterrupted and without obstruction. All the expressions used in Section 26, Limitation Act have been judicially interpreted and it is now settled that in order to establish a right of easement it is enough for the plaintiff to prove that he has been exercising the right without interruption, without express or implied permission of the owner of the dominant tenement and without secrecy or stealth. The findings of the learned Judge amount to this that the right enjoyed by the plaintiff was an easement within the meaning of Section 26, Limitation Act. We think that this objection must be overruled.
4. The third point raised on behalf of the appellant is that easement cannot be claimed over a property which is also claimed by the plaintiffs as belonging to them; or in other words, when the exercise of the right referable to the easement claimed is due to assertion of a right of ownership in the property, the plaintiffs will not be entitled to claim easement over the property. This point has been set at rest by the Full Bench decision in the case of Narendra Nath Barai v. Abhoy Charan Chattopadhya (1906) 34 Cal. 51 where it has been held that it is not inconsistent for the plaintiff to claim mourashi right in a property and in the alternative a right of easement over the same.
5. The fourth ground of attack is that the plaintiffs have failed to prove the user of the right claimed by them within two years of the institution of the suit. This objection is met by the finding of the learned Subordinate Judge which runs as follows: ' I also find that the plaintiffs exercised the right for over 20 years ending within two years before suit.'
6. Lastly it is argued that the decree as passed by the lower appellate Court virtually dispossesses the defendants from the entire tank as the plaintiffs are entitled under it to use the water of the tank to the last drop. The plaintiffs claim the right to irrigate their lands by drawing water from this tank to irrigate their chak and that right has been found established by the lower appellate Court. They are therefore entitled to draw so much water as is necessary for the purpose of irrigating the lands and no more. In this view of the plaintiff's right, the lower appellate Court in its decree has ordered that the plaintiffs shall be bound to close up that opening after their necessity for water is over. Whether the water of the entire tank would be necessary for irrigating the lands of the plaintiff or a lesser quantity would be sufficient, it is impossible to judge. The decree as passed by the lower appellate Court is explicit and there is no doubt with regard to this matter.
7. On the whole we think that the view taken by the lower appellate Court must be upheld and the appeal should be dismissed with costs.
8. The cross-objection is not pressed and is accordingly dismissed.