P L D 1958 (W (PLP)

AKHLAQUE HUSSAIN, J.‑This second appeal arises out of a suit, which was dismissed by the trial Court but decreed on appeal by the learned District Judge, Campbellpur, by his judgment and decree dated the 23rd of March 1955. The suit was f or declaration that there was a right of easement for irrigation from the well known as Akbarshahwala situate in Khasra No. 1842 in village Yasin in favour of the Khasra numbers specified in the plaint, of which the plaintiff‑respondent was the owner and that, therefore, the plaintiff is entitled to irrigate the said lands from that well; and for an injunction to restrain the defendant from preventing him (the plaintiff) from so irrigating the said lands.

2. The first contention of the learned counsel for the appellant is that the plaintiff has failed to prove enjoyment of the easement in question for twenty years without interruption. Jamabandis for the years 1924‑25, 1932‑33, 1936‑37, 1940‑41, 1944‑45 and 1952‑53 have been produced by the plaintiff‑respondent. These admittedly show that the plots in question were being irrigated from the Akbarshahwala well. Exh. P. 11 is a statement of rights of wells (naqsha haqooq chahat) prepared in 1925 during the settlement. According to this the plots in question had the right to be irrigated from Akbarshahwala well, situate in Khasra No. 1842. The first entry in the remarks column shows that the right existed from before the Settlement. It is, however, contended by the appellant that since the Jamanbandis for 1926 to 1931, 1934‑35, 1938‑39, 1942‑43 and 1946 to 1951, have not been produced, continuous enjoyment for 20 years has not been proved. This contention, must fail. The plaintiff as P. W. 2 stated that ever since he attained discretion thirty or thirty‑five years ago the plots were being irrigated from Akbarshahwala well. This statement was not challenged in cross‑examination; nor was any evidence in rebuttal produced by the defendant appellant. The plaintiff's statement receives a strong corroboration from Exh. P. 11 and the Jamanbandis. The contention that the easement was not being enjoyed as of right must also be rejected because Exh. P. 11 show's that the enjoyment was recognized as of right during the Settlement and there is nothing to show that the easement was subsequently enjoyed on any other ground.

3. It was next contended that since the plaintiff acquired only occupancy rights under the sale‑deeds Exh. P. 1 and Exh . P. 2 dated 8th March 1952, he cannot, in law, claim an easement. The rulings reported in Doma Matadin v. Ragho Rama Bhoyar (1947 Nag. 175) and Puran and others v. Ghungar and others (1930 Lah. 119), were relied upon. In the first case it was held that easement cannot be acquired by a tenant against his landlord and in the other that a tenant of a proprietor's land cannot acquire easement over other land belong ing to his landlord. These rulings have no bearing upon the facts of this case. In the first place appellant's learned counsel has not referred me to any evidence on the record to show that his client is the plaintiff‑respondent's landlord. Secondly, the plaintiff is claiming that the easement is appurtenant to the lands in his possession. He is, therefore, clearly entitled, even as an occupancy tenant, to irrigate the lands if the easement exists and is appurtenant to them.

4. The last contention, which is based upon the second para. of the plaint, was that the plaintiff having also claimed ownership in the well cannot claim an easement in it. This argument is also misconceived. In para. 2 of the plaint the plaintiff clearly claimed the easement; but added that he is also a co‑sharer in the ihata of the well. This alternative allegation was apparently based upon the fact that by means of Exh. P. 1 the plaintiff had also acquired a share in Khasra No. 1842 on the 8th of March 1952. He, however, lost that right when, on the 8th of May 1953, the present appellant obtained a decree for possession of that plot in a suit for pre‑emption against the plaintiff-respondent. In a state ment made by the plaintiff's counsel on the 8th of June 1954, before framing the issues it was clearly stated that nothing had been claimed on the basis of any ownership in plot No. 1842. There is nothing on the record to show that the plaintiff ever claimed any proprietary title in the well before the suit, which was filed on the 28th of September 1953. In any case he could not have done so before the 8th of March 1953, when Exh. P: 1 was executed in his favour. Thus, the easement in favour of the lands in question had been enjoyed as of right for a period of twenty years ending two years next before the institution of the suit as required by section 26 of the Limitation Act. The mere making of an inconsistent allegation in the plaint, which was subsequently withdrawn, cannot by any stretch of logic show that the right in question had not been enjoyed for the requisite statutory period as an easement.

5. No other contention was urged on behalf of the appellant. The appeal is hereby, dismissed with costs. S.D.A./A.H. Appeal dismissed.