P L D 1952 Lahore 411 (PLP)

S. A. RAHMAN, J.‑This order will dispose of two Regular Second Appeals Nos. 294 and 295 of 1950. The facts that have led up to this litigation are as follows :‑ The suit out of which Regular Second Appeal No. 295 has arisen was brought by Haji Ahmed Din and was continued after his death, by his daughter. Mst. Inayat Begum. He claimed to be owner of certain plots of land, which, according to him, had been irrigated with sullage water taken from the Municipal Corporation of Lahore by means of an artificial channel passing through the defendants land that adjoined his own plot. Defendants Nos. 1 to 8, Abdul Jabbar etc, are the descendants of one, Abdul Rahim, while defendants Nos. 9 to 11, Mushtaq Ahmad etc., are the successors‑in‑interest of K. B. Malik Taj Din. These are the owners of the alleged servient heritage. Defendants Nos. 12 and 13 are Muhammad Hussain and Mahanna, who were impleaded merely because they were tenants under the other defendants. It was alleged that the defendants had demolished the channel which passed through their land and diverted the sullage water into another channel which could‑not irrigate the plaintiff land. The plain tiff, therefore, sought a mandatory injunction requiring the defendants to restore the channel to its original condition and for a restrictive injunction calling upon them not to interfere with his rights in future. The other appeal No. 294 is con nected with a suit brought by Hassan Din, a tenant of Mst. Inayat Begum, and his claim is by way of damages for the injury caused to his crops by the action of the defendants who had diverted the channel above‑mentioned to his detriment and had thus caused failure of the crop which he had sown in Mst. Innyat Begum's land. He assessed these damages at Rs 780. The trial Civil judge dismissed both suits. It was found by him that the plaintiffs' land had been irrigated by sullage water for more than 20 years prior to the institution of the suits without interruption but that this right of passing water through the defendants' land was not enjoyed as of right, and secondly that the channel through which the water had been conveyed had changed its course from time to time. The unsuccessful plaintiffs appealed to the learned District Judge, Lahore. The appeals were put up for hearing before the Additional District Judge who took the view that the plaintiffs had no right to claim the water from the Municipal Corporation and as the source of irrigation was thus precari ous, depending on the sweet will of the Corporation, the plain tiff could not have acquired any right of easement for passing the sullage water through the defendants' land to his own land. He gave no clear finding as to whether the water had in fact been taken along the channel claimed for a period extending 20 years prior to the suit or not. He considered the applicability of clauses (e) and (f) of section 13 of the Easements Act, or rather the principles embodied therein, since the Act is not in force in this province proprio vigore, and came to the conclusion that the plaintiff could not press these clauses to his service, as the easement claimed was not one of absolute necessity, nor was it a continuously and apparent easement. He, therefore, dismissed the appeals. The plaintiffs have presented two second appeals to this Court. The learned Additional District Judge in a somewhat sketchy and unsatisfactory Judgment has observed that in his opinion, the fact that the supply of water depended absolutely on the will of the Corporation ended the whole dispute, and it was immaterial whether the channel claimed was an artificial one or not, or whether the supply was a continuous or perma nent one or not, or even whether the channel had been changed from time to time. He somehow thought that the plaintiffs were claiming the right of easement not as owners or occupiers of certain lands but as persons who happened to be lessees of sewage water from the Corporation for a certain length of time. This circumstance, according to the learned judge, gave no right to the plaintiffs to pass the water through the defendants' land. About the end of his judgment, the learned Judge referred to an English ruling for which he omit ted to give the citation. He thought that the case he had in mind was practically similar to the present one and put the plaintiffs out of Court. In my opinion, the learned Additional District Judge mis conceived the position. The plaintiff did not claim the right of easement in question merely because' he was a lessee of sullage water from the Corporation. It is canceded before me by Mr. Muhammad Hussain on behalf of the appellants that no right to get the water in prepetuity as against the Cor poration could be established. The Corporation leased out its sullage water to any person who gave a successful bid and it could also refuse to give a lease to the plaintiff. He, however, contended that by long user extending far over the prescribed period, the appellant's land had come to be invested with the position of a dominant heritage, and so long‑ as the plaintiff appellant was able to procure the supply of sullage water by arrangement with the Municipal Corporation, he could, as of right, utilise the old artificial channel passing through the respondents' land for irrigating his own land. In this connection learned counsel pointed out that the Municipal Corporation had built permanent reservoirs in which the sullage water was collected and from which a pukhta channel led the sullage water up to the point 'A' in the plan attached to the plaint. This point 'A' is on the border of the defendants' land and from it the channel claimed by the appellants' took the course 'A, B, C, D, E', the portion 'D, E' being in the appellant's land and the remainder in the respondents'. The allegation was that the channel 'A, BX, D', had been demolished by the respondents and they had diverted the sullage water from point 'A' to 'F, G, H, I, J, K, L, M, N, O' shown in the plain. The tail portion of this new channel bordered the appellant's land on the south, but it was pleaded that it could serve no useful purpose for irrigating the appellant's land. To all intents and purposes, it transpires from the evidence that the Municipal Corporation had made permanent arrangements for sale of sullage water from their reservoirs to zamindars and it was sold to them if and when they applied, in the normal course, without much difficulty. Only a specified pay ment had to be made. In these circumstances, it could not be said that the course of the irrigation water was of a temporary character or so precarious that no right of easement could arise between the two appropriators situate on the extension of the channel of leading from the Municipal reservoirs, inter se. The mere fact that in one particular year, the supply may be interrupted, would not affect the right of easement if one was established. The principle embodied in section 6 of the Easements Act would make that clear. The principles of the Act can be invoked as principles of justice, equity, and good conscience, even though the Act has not been applied to this province. The English ruling which the learned Additional District judge had apparently in mind is reported as Arkwright and another v. Gell and others (1839 Ex. 5 MEE, and W. 203) which is equivalent to 52 R R 671. In that case the question was of the right of occupiers of mills, situate on a stream which drained a mine, to compel the mine owners to continue discharging the water into the stream. It was held that no such right existed. The stream was an artificial water‑course and the sole object for which it was made was to get rid of a nuisance to the mines and to enable their proprietors to get the ores which lay within the mineral fields drained by it. It was observed that the flow of water through that channel was from the very nature of the case, of a temporary charac ter, having its continuance only whilst the convenience of the mine. owners required it. It was pointed out that the mine owner could not bring any action against the person using the stream of water so that the omission to bring an action could afford no argument in favour of the presumption of a grant ; nor could he prevent the enjoyment of that stream of water by any act of his, except by at once making a slough at a lower level, and thus taking away the water entirely ; course so expensive and inconvenient, that it would be very unreason able and a very improper extension of the principle applied to the case of lights, to infer from the abstinence from such an act, and intention to grant the use of water in perpetuity, as a matter of right. It was, however, recognized by the learned judges in that case that though no right was acquired as against the owner of the property from which the course of water took its origin, yet as between the first and any subsequent appropriator of the water course itself, such a right may be acquired. Clearly the question for decision in the present case was of the latter category and not of the kind which fell for determination in that particular case. Mr. Yaqub Ali Khan on behalf of the respondents drew my attention to Mood and another v. Waud and others (77 R R 809) and Greatrax v. Havward (91 R R 493), which are equivalent to 1849 3 Ex. 746 and 1853 8 Ex. 291, as authori ties supporting the view that where the original source of water was precarious, the subsequent appropriators inter se" could not claim any right of easement. No exception can be taken to this principle. But as has been observed above, the facts of this case are distinguishable. The Corporation has made apparently permanent arrangements for selling its sullage water to anyone who would pay for it. The question, here, therefore, is whether in the presence of such permanent arrangements concerning the source of supply, the appellants had or had not acquired the right of easement for passing the sullage water through the respondents' land. The argu ment could not be sustained that the Corporation in the present case had merely allowed the sale of sullage water for a temporary purpose and, therefore, another authority cited by Mr. Yaqub Ali published as Polden v. Bastard (L R 1 Q B 156) does not seem to be in point. Reference may also be usefully made to the authority reported as Bepin Behary Ghatak and another v. Ramnath Ghatak and others A I R 1929 Cal. 285 D B, It was held in that case that where a person is taking water during the monsoon, through an artificial channel, for nearly 32 or 35 years into his own field, for irrigation purposes, by cutting an all of others field at a particular place during the monsoon, such user cannot be said to be of a temporary nature and the right to take such water can be acquired by prescription. It would thus be seen that the main ground on which the learned Additional District Judge rested his judgment proves to be a flimsy one. Other authorities in support of the position taken up by the appellant will be found in Tiruvankatachar v. Desikachar 1 L R (1908) 31 Mad. 532, D B, and T. V. Aravamudachariar v. Muniswami Udavan and others (1937 Mad. Weekly Notes 920). I Clause (e) of section 13 of the Easement Act appears to have no relevancy to the facts of the present case. It is conceded by the learned counsel for the appellants that this clause is only available in case of an easement of absolute necessity. The evidence, however, shows that the lands of the plaintiffs and defendants, besides being irrigated by sullage' water, were also receiving water from two wells which still' exist. These apparently had gone out of use at some unde fined point of time but it is not shown that they cannot be requisitioned again for irrigation purposes. Indeed, one of the wells seems to be in working order now, according to the evidence. In these circumstances, it cannot be said that but for the sullage water through the artificial channel claimed, there is no other means of irrigating the appellants' land Clause (e) of section 13 of the Easement Act, therefore, is not attracted to the case. Clause (f) of section 13 of the Act seems to embody a rule of evidence inasmuch as it arises a presumption that in case of apparent and continuous easements which are necessary for enjoying the share as it was enjoyed when partition of a plot of land took effect, the easement in question would pass to the transferee of the severed land, seven without any express words of conveyance. The learned Additional District judge has expressed the view that the easement claimed through the artificial channel such as the one under discussion, could not be described as a "continuous easement", as it could not be continued without the act of man and he thought that it was doubtful if it could be described as an "apparent easement." This was the main ground why the learned judge refused, to apply clause (f) to this case. On behalf of the appellants the view taken by the lower appellate Court has been assailed before me as erroneous. My attention was invited to Kartic Manjhi and another v. Banamah Mukerji and others A I R 1930 Pat. 7 D. B. Chander and others v. Bala Pershad and others A I R 1928 Leh. 497 D. B., Morgan v. Kirby I L R (1878) 2 Mad. 46, and Brij Mohan Lal and another v. Hazari Lal and others A I R 1936 All. 90 F. B. as authorities for the proposition that water flowing through an artificial channel may give rise to an "apparent" and "continuous" easement. This question, however, need not be finally decided by me at the present stage as I consider that the application of clause (f) would only call for consideration in connection with the point of time when the appellant's vendor acquired or inherited his land from the original owner and the evidence pertaining to that stage of the case has really not been discussed by the learned Additional District Judge. From his own vendor, the appellant obtained a deed of transfer which expressly granted him whatever rights the vendor possessed in respect of irriga tion with sullage water. The lands of the plaintiffs‑appellants and those of the defendants originally formed a unitary estate owned by one, Alif Shah. He had two sons, Feroze Ali Shah and Said Ali Shah. The former predeceased his father but left him surviving, his two sons Niaz Ali Shah and Abbas Ali Shah. The whole area was at that time irrigated by two wells, both known as Chah Sayedanwala, the area commanded by each well being about 66 kanals. On the death of Syed Alif Shah, half of his property along with one of the wells, was inherited by Said Ali Shah and the other half of the area, with the second well, by Niaz Ali Shah and Abbas Ali Shah. Said Ali Shah mortgaged his share of the property with possession, to K. B. Malik Taj Din, father of defendants Nos. 9 to 11. In 1918, Said Ali Shah executed a registered agreement to sell some 46 kanals out of his share of the land to Ahmed Din, deceased plaintiff: Subsequent to the execution of this agreement, however, he sold the whole of his 66 kanals to K. B Malik Taj Din, by means of several sale deeds. Ahmed Din and Malik Feroze Din, who were both beneficiaries of the agreement to sell, then brought a suit for specific performance and obtained a decree in their favour, as a. result of which, Said Ali Shah executed the sale deed Ex. p. 7 and conveyed 46 kanals of land to them, in 1930. The new owners got the land redeemed from K. B. Malik Tai Din, mortgagee. The position that emerged then was that out of the 66 kanals of land belonging to Said Ali Shah, some 46 kanals odd came to be the property of Ahmad Din and the sons of Malik Feroze Din who had died, while the remaining 20 kanals remained the property of K. B. Malik Taj Din, now represented by defend ants Nos. 9 to 11. The other branch of Syed Alif Shah, namely, his grandsons, Riaz Ali Shah and Abbas Ali Shah; had also created several mortgages over their share, from 1918" onwards, in favour of Nizam Din and K. B. Malik Taj Din. In 1924, they sold their whole area to Malik Abdur Rahim predecessor‑in‑interest of defendants Nos. 1 to 8, by the sale deed, Ex. D. 18. On these facts, the parties are not in controversy. The question is whether or not, on severance of this unitary estate belonging to Syed Alif Shah, any quasi easement rights, such as are contemplated by clause (f) of section 13 of the Easements Act, came into being, the benefit of which can be claimed by the appellants This is a question which has been left really untouched by the learned Additional District Judge. He has not even discussed the evidence bearing on this point. Whether that evidence and the: circumstances brought on the file, would be enough to shell out such a right in the appellant's favour would be a question for the learned District judge to decide and for that purpose there ought to be a remand in this case. The lower Appellate Court is the final judge on questions of fact and there seems to be no reason why it should not be asked to adjudicate on the relevant points of fact. In the alternative the District judge will have to assess the merits of the contention as to whether the appellants and their predecessors‑in‑interest, could be said to have acquired the right of easement claimed by prescription or not. Section 26 of the Limitation Act will have to be kept in view for this purpose. The relevant law is contained in that enactment as the Easements Act is not in force in this province. I, therefore, remand the two appeals under Order 41, rule 25 of the Code of Civil procedure to the lower Appellate Court with the direction that after hearing the parties or their counsel, a finding may be recorded on the basis of the evidence on the record as to whether, the severance of the unitary estate of Syed Alif Shah gave rise to a quasi easement of the character contemplated by clause (f) of section 13 of the Easements Act of which advantage could be taken by 'the appellants, and in the alternative, whether the appellants had established the right of easement by prescription, for passing sullage water taken from the Municipal Corporation, through the respondents' land, by means of the defined channel claimed. The record will be forwarded in due course to this Court, with the necessary findings. A. H. Case remanded