Mookerjee, Actg., C. J.
1. This is an appeal by the plaintiffs in a suit for establishment of their right to irrigate their crops with the water of the disputed tank, which is situated on the land of the defendants.
2. The Court of first instance decreed the suit. Upon appeal that decree has been set aside by the District Judge.
3. It appears that in a previous litigation the plaintiffs asserted a right of ownership to the disputed tank, but the claim was dismissed as unfounded. The Courts on that occasion made an observation that although the ownership of the tank was not established, still it was clear that the plaintiffs had enjoyed the right to take water there from for the purposes of irrigation. In the present case, the plaintiffs seek to establish their right to take water for the purposes of irrigation. The defendants contend, and this contention has been accepted as well founded by the District Judge, that inasmuch as the plaintiffs, in the previous suit, asserted ownership, their possession could not be treated in law as equivalent to the possession necessary for the purposes of acquisition of a prescriptive right of easement. No authority is sited by the District Judge in support of this view, but reliance has been placed before us upon the judgment in the case of Chunilal Ful Chand v. Mangaldas Govardhandas 16 B. 592 : 8 Ind. Dec. (N.S.) 874, where it is laid down that in order to acquire an easement under Section 26 of the Limitation Act, the enjoyment must have been by a person claiming title thereto as an easement, as of right, for twenty years, and that evidence of immemorial user adduced in support of a right founded on ownership does not, when that right is negatived, tend to establish an easement. We are unable to accept the principle enunciated in this case, if it is an authority for the proposition that the right of a plaintiff depends, not upon the actual circumstances established by evidence, but upon an unfounded assertion of a claim which is negatived by the Court. We further find that the decision mentioned was questioned in the case of Konda Reddi v. Ramaswami 17 Ind. Cas. 112 : 38 M. 1 : 6 L.W. 564. This case is an authority for the proposition that the mere claim of the higher right of ownership does not prevent a person from acquiring the lesser right of easement, provided he can show that he asserts certain rights of enjoyment over the land in question for the benefit of another land belonging to him. This view, we think, is well founded on reason and is in accordance with the principle which underlies the decision of the Fall Bench in the case of Nareadra Nath Baruri v. Abhoy Charan Chattepadhya 34 C. 51 : 4 C.L.J. 437 : 11 C.W.N. 20 : 1 M. L.T. 364 (F.B.), whore it was ruled that a plaintiff was entitled to Claim a right of ownership of a certain land, and if the facts proved would not amount to that, he might claim to be entitled to a right of easement in the Alternative The Fall Bench in essence held that the relief to be awarded to the plaintiff depended upon the facts established by him. The fact of user might be sufficient to justify an inference of title or the fact of possession might justify an inference that the plaintiff had acquired a prescriptive right of easement therein. In the case before us, there is no room for doubt that the plaintiffs have established a right of easement in the disputed tank. But it has been argued that such prescriptive right has been extinguished by non-user or interruption of user for more than two years. This objection is of no avail to the respondent. The plaintiffs, on the facts found, are entitled to succsed on the ground of acquisition of a right by immemorial user. In such a case, as pointed out by the Judicial Committee in Rarup Koer v. Abul Hossein 6 C 394 : 7 C.L.R. 529 : 7 I.A. 240 : 4. Shome L.R 7 : 4 Sar. P.C.J. 199 : 3 Suth. P.C.J. 816 : 4 Ind. Jur. 530 : 3 Ind. Dec. (N.S ) 257 (P.C.), no question of two years' limitation arises.
4. The result is that this appeal is allowed, the decree of the District Judge sat aside and that of the Court of first instance restored with costs in all the Courts.
5. I agree.