1. This appeal arises out of a suit for a declaration that the defendant-appellant has no right to use the water of the plaintiff's tank for irrigating his lands, and for a perpetual injunction restraining him from taking the water of the tank. The Court of first instance found that the defendant had no right to use the water of the tank by prescription under Section 26 of the Limitation Act, The learned Subordinate Judge has reversed that decision and held that the defendant had proved a prescriptive right to the use of the water of the tank for irrigating his lands.
2. The plaintiff has appealed to this Court, and the first point raised in appeal is that the finding of the lower appellate Court, that defendant had proved a prescriptive right, is erroneous as it has not displaced the finding of the first Court that there was no continuous user of the water of the tank. The appellant contends that it is necessary to prove user in each year. In the present case the learned Subordinate Judge has found that the water of the disputed tank has always been used for irrigating the defendant's land and that there was user whenever it was necessary. He has further found that the defendant's land was irrigated with the water of the tank for more than 20 years. We think it is not necessary to prove an annual user in an easement of this character. The statute only requires enjoyment without interruption for 20 years and not actual user and we think that it is sufficient if it is proved that the right has been substantially enjoyed for the requisite period.
3. In Goddard on Easements (5th Edition page 204), it is stated; 'There are some easements of an intermittent character, that is easements which are used only at times and not continuously such as rights of way, rights to take water or a right to pour water down a drain--and the (question has arisen whether they can be acquired under the 2nd Section of the Prescription Act if the user only takes place at long intervals.' The learned author then discusses the case of Hollins v. Verney L.R. 13 Q.B.D. 304 : 53 L.J.Q.B. 430 : 51 L T. 753 : 33 W.R. 5 : 48 J.P. 580 and points out that it is difficult to reconcile the decision in that case with that in Glover v. Coleman L.R. 10 C.P. 108 : 44 L.J.C.P. 66 : 31 L.T. 684 : 23 W.R. 163 or with that of Carr v. Foster 4 A. & E. 890. The question has also been raised in our Courts. It was held by the learned Judges, (Rampini and Pargiter, JJ.,), in Budhu Mandal v. Maliat Mandal 30 C. 1077. (5) 8 C.W.N. 158 that it was immaterial whether the exercise of the right was continuous provided it has been exercised over a period of 20 years during seasons of drought when it could be taken advantage of and referring to the case of Hollins v. Verney L.R. 13 Q.B.D. 304 : 53 L.J.Q.B. 430 : 51 L T. 753 : 33 W.R. 5 : 48 J.P. 580 they observed that it seemed to be of doubtful authority, and that, 'in any case, it was decided under the English Prescription. Acts and have no direct application to the present case. Hollins v. Verney. L.R. 13 Q.B.D. 304 : 53 L.J.Q.B. 430 : 51 L T. 753 : 33 W.R. 5 : 48 J.P. 580 was also distinguished in kristo Das Chowdhry v. Joy Narain Panja (5).
4. It has been further contended that there is no express finding by the Subordinate Judge as regards the intervals at which the right was exercised, but the effect of the judgment as a whole is that the right has been exercised, whenever occasion required for more than 20 years.
5. Then, as to the second point, namely, that the prescriptive right could not be acquired as the water was not taken through any defined channel, we think that the judgment of the lower appellate Court means, not that the channels through which the water was taken were different, but that the openings made in the embankment were different in different years according to the height of the water. There was no such uncertainty in the mode of user as to make it indefinite. There is nothing to prevent the defendant from acquiring a prescriptive right.
6. Lastly, it has been contended that, the defendant having paid Rs. 50, the user was permissive and not as of right. But the defendant was interested in the repair of the bundh, as he had the right of irrigation, and the money paid by him, about 50 years ago, for repair of the bundh, and the arrangement entered into at that time to use the water of the tank, did not make the user permissive.
7. For these reasons, we dismiss this appeal with costs.