JUDGMENT : Banerji, J. The plaintiffs Nos. 1 and 2 are co-sharers in the village Kokadi. The plaintiffs Nos. 3, 4 and 5 are cultivators in that village and it is admitted by the learned vakils for both parties, that they are not the tenants of plaintiffs 1 and 2 or of the defendant who is also a co-sharer in the village. In the year 1311 Fasli a partition took place between the various co-sharers. In that village there lies a tank called Jahar or Dahar in plot No. 333. The allegation of the plaintiffs is that with the water of this tank they had for many years irrigated the fields which lie to the south of the tank. They alleged that there were three lifts to the south of the tank in that portion of plot No. 333 which is now demarcated as No that to the south of the tank is plot No. which under the partition has been allotted to the defendant's share, that in that plot there were three other lifts and a channel, that the water from the tank used to be collected in the lifts first mentioned and afterwards in the lifts in plot No. 481/2, that by the channel they used to carry the water to their fields, that after the partition the defendant to whose share plot No. was assigned destroyed the lifts and levelled the ground and that in consequence thereof the plaintiffs had been unable to irrigate their fields. They accordingly asked for a mandatory injunction directing the defendant to rebuild the three lifts on the southern side of the tank bearing No. 322 and the three lifts in land No. for the purpose of irrigation of the plaintiffs' fields and to allow the plaintiffs to irrigate their fields from the said tank in the manner alleged and not to interfere with the plaintiffs' right of irrigation. The court of first instance dismissed the suit. The lower appellate court was of opinion that the plaintiffs had a right of easement to irrigate the fields. That court found that the lifts and channel alleged by the plaintiffs did exist and sent down an issue to the court of first instance to find whether the easement which the plaintiffs claimed was or was not an easement of necessity. On return being made to this issue the case was heard by another Judge. That court found that the lifts and channel alleged by the plaintiffs did exist and sent down an issue to the court of first instance to find whether the easement which the plaintiffs claimed was or was not an easement of necessity. On return being made to this issue the case was heard by another Judge. He was of the opinion that the plaintiffs Nos. 3, 4 and 5 had acquired a right of easement and that as regards plaintiffs 1 and 2 there was an agreement between them and the defendant and other co-sharers at the time of the partition under which the right of the said plaintiffs to irrigate their fields, as before was maintained. He held that the plaintiffs 1 and 2 were by virtue of this agreement entitled to the right claimed by them and that the other plaintiffs the tenants, had a right of easement. He accordingly decreed the plaintiffs' claim. The defendant has preferred this appeal and it is first contended on his behalf that the plaintiffs 3, 4 and 5 cannot be held to have a right of easement. As has been stated above a partition took place in 1311; therefore prior to that year all the proprietors were joint owners of the village and the tenants were the tenants of the whole of the proprietary body. That being so, it is urged that the plaintiffs 3, 4 and 5, as tenants, could not acquire a right of easement as against their landlords who were the whole of the proprietary body, including the defendant. This contention, is in my opinion well founded. A tenant cannot acquire a right of easement against his own landlord. I deem it needless to cite authorities in support of this view but I may refer to the Full Bench decision of this Court in Udit Singh v. Kashi Ram, [1892] I.L.R., 14 All., 185. In that case it was held that a tenant cannot, as against his landlord acquire by prescription an easement in respect of the land occupied by him as tenant, over other lands belonging to the landlord. It is clear therefore that the plaintiffs 3, 4 and 5 could not have acquired a right of easement over land No. which is not a part of their cultivator holding. It is clear therefore that the plaintiffs 3, 4 and 5 could not have acquired a right of easement over land No. which is not a part of their cultivator holding. It is, however, contended on their behalf that in the plaint they did not allege a right by prescription or claim a right of easement but they asserted that they had a right to irrigate their fields with the water of the tank in question by carrying it through the plot No. from time immemorial, and that this was a right which was appurtenant to the holding and formed a part of the contract of tenancy. On this point it is necessary to have a finding from the court below, as the case apparently was not considered by that court from this point of view and the opinion expressed by the learned Judge as to the acquisition of a right of easement by the said plaintiffs is clearly erroneous. As regards plaintiffs 1 and 2, I think the court below was right in holding that by virtue of the agreement entered into by the different co-sharers at the time of partition to which I have referred above, the plaintiffs' right to irrigate their fields with the water from the tank in question and by means of the lifts and the channel in field No. 481/2 was maintained. In the partition proceedings which laid down the mode in which the partition was to take place (tarz taqsim) it is stated in Chapter X, Clause II, under the heading “irrigation (ad pashi) that irrigation takes place from the Johar, that is, tank in Nos. 333 and 316, that these tanks would be partitioned, but the fields which are irrigated from these tanks would continue to be irrigated as before. This was a clear agreement between the co-sharers and by virtue of it, the plaintiffs 1 and 2, who are co-sharers, are entitled to irrigate their fields in the same manner in which they had been irrigated before. This was a clear agreement between the co-sharers and by virtue of it, the plaintiffs 1 and 2, who are co-sharers, are entitled to irrigate their fields in the same manner in which they had been irrigated before. It has been found by the lower appellate court that the water used to be taken from the tank in 331 by means of three lifts which were in that plot and three other lifts which are in plot No. 481/2 Therefore these plaintiffs are entitled to continue to irrigate the fields by means of the lifts and the channel which they used before partition. The plaintiffs 1 and 2 are, therefore, entitled to the right they claim, not as an easement but on the strength of the agreement to which I have referred. It is urged that the court below should have come to a finding as to the fields which these plaintiffs are entitled to irrigate as co-sharers in the village. According to the contract mentioned above they are entitled as co-sharers to irrigate only such fields as they hold in their character as co-sharers. It is, therefore, necessary to refer an issue on this point also. I accordingly refer to the court below the following issues under Order 41, Rule 25, of the Code of Civil Procedure (1) Was it, or was it not a part of the contract of tenancy of the plaintiffs 3, 4 and 5, that they would have a right to irrigate the fields lying to the south of the tank in question with its water, in the manners alleged in the plaint? If such was the contract what are the fields of the said plaintiffs, to which the said contract relates? (2) What are the fields of the plaintiffs 1 and 2 held by them as co-sharers in the village, which before partition they had a right to irrigate with the water of the tank in question, in the manner alleged in the plaint? 2. On return of the finding His Lordship delivered the following judgment. 3. The finding by the court below on the first issue referred to it is in negative. The mere fact that the plaintiffs Nos. 2. On return of the finding His Lordship delivered the following judgment. 3. The finding by the court below on the first issue referred to it is in negative. The mere fact that the plaintiffs Nos. 3, 4 and 5 are ex-proprietary tenants of certain fields does not confer on them a right to irrigate the fields of which they are ex-proprietary tenants with the water of the tank in question, merely because they, as proprietors, used to do so. It has not been shown that any contract has been entered into between them and the landlord by which they were given a right to continue to irrigate their fields. The claim of these plaintiffs must, therefore, fail. As regards plaintiffs Nos. 1 and 2 who are co-sharers, they were entitled to irrigate such of their fields as they had been irrigating at the time of partition with the water of the tank in question. They have not adduced any evidence to prove what the fields are which they used to irrigate. They examined two witnesses, namely, the patwari and one Genda. The patwari filed a list of the fields cultivated by the plaintiffs Nos. I and 2, but he had no personal knowledge as to irrigation. His statement on the point was, as the learned Judge says, hearsay. The evidence of the patwari has been read to me and I find from it that the patwari did not speak from personal knowledge. As for Genda, the learned Judge has apparently disbelieved him as he calls his evidence worthless. The court below was, therefore, right in finding the second issue against the plaintiffs Nos. 1 and 2. The result is that the claim of the plaintiffs fails and ought to have been dismissed by the court below. I allow the appeal, set aside the decree of the court below and restore that of the court of first instance with costs in all courts.