JUDGMENT : BANERJI, J. The suit which has given rise to this appeal, was brought by the plaintiffs-appellants for establishment of their right of easement for the flow of water upon a piece of land adjoining their house through certain water spout. It appears that the plaintiffs had brought a suit claiming the ownership of the land on which they now allege that the water from their house flows. That suit was withdrawn by them with liberty to bring a fresh suit on the 14th of December, 1900. Apparently, the plaintiffs discovered that they were not the owners of the land, and consequently could not maintain the suit which they had brought. They then brought the present suit and they assert that they, and their predecessors in title, have enjoyed a right of easement for upwards of one hundred years. The court of first instance decreed their claim in part. Both parties appealed to the lower appellate court. That court, however, dismissed the plaintiffs' suit upon the ground that as the plaintiffs had in the previous suit asserted that they were the owners of the land over which they claimed the right of easement, their right of easement could only commence from the date on which the Court granted them leave to withdraw their first suit. This judgment of the court below has been affirmed by the learned single Judge of this Court who heard a second appeal preferred from it. Hence this appeal under the Letters Patent. 2. The learned Judge of this Court has found himself bound by the decision in the case of Jalal-ud-din v. Asad Ali, [1883] A.W.N., 66.. We have considered the judgment in that case and we are of opinion that it does not lay down any general proposition of law. That case was decided with reference to its own merits, audit was held that as the plaintiff had once asserted a right of ownership, his subsequent allegation that he had a right of easement was not credible, and it was not probable that he had enjoyed as an easement a right of way over the land which he had once claimed as his own property. 3. That case therefore has no bearing upon the question which the court below had to decide in the present case. 3. That case therefore has no bearing upon the question which the court below had to decide in the present case. The mere fact that the plaintiff asserted a right of ownership over the land which he afterwards found did not exist, does not preclude the plaintiff from claiming a right of easement. If he has enjoyed the right by user for such a long period as was sufficient to confer on him a right by prescription, the circumstance that in a previous suit he had erroneously stated that he was the owner, would not deprive him of the right of easement which he had already acquired. The court below should, therefore, have tried the question whether the plaintiff had a right of easement, upon the evidence adduced by the parties. The ground on which it dismissed the plaintiff's suit was in our opinion an untenable ground. We accordingly allow the appeal, set aside the decrees of this Court and of the lower appellate court, and remand the case to the lower appellate court for trial upon the merits. 4. Costs here and hitherto will follow the event