JUDGMENT : Narasimham, J. - This second appeal is by the Plaintiffs against the judgment of the Subordinate Judge of Sambalpur reversing the judgment of the Munsif of Bargarh and dismissing the Plaintiffs' suit for a declaration of their right to take water from a village tank (plot No. 834) along a channel (shown in red ink) on basti plot No. 702 in village Goisar for the purpose of irrigating their lands described in schedule 'A' to the plaint, for removal of the obstructions said to have been erected on the said channel by the Defendants and for a permanent injunction against them. 2. The material facts are these: The Plaintiffs are owners of paddy fields which in times of drought used to be irrigated by water drawn from a big tank in the village or plot No. 834. From the map (Ext. 7) it will be clear that the tank lies to he north-west of the village whereas the Plaintiffs plots are on the extreme south-east. Two small channels (plot Nos. 800 and 806) emerge from the tank and after proceeding in a south-easterly course for some time they again re-unite at a place marked 'A' in the map and proceed as a single channel until they reach basti plot No. 702. Another channel (plot No. 657) emerges from the basti plot on its south eastern side and irrigates the Plaintiffs' fields. In the last settlement record of rights (1922--24) the right of the Plaintiffs to take water from the (*Page 2*) tank (plot No. 834) for irrigating their fields was clearly recorded; but the entire route through which the water flows for the purpose of such irrigation was not indicated. The Plaintiffs alleged that the water used to pass through the two channels and then after entering basti plot No. 702 used to pass through another small channel marked in red line in the map and then flow through the channel on plot No. 657 and irrigate their fields. The Defendants however challenged the Plaintiff's claim regarding the route taken by the water while passing over basti plot No. 702. In the trial Court they took the plea that the water never passed over basti plot No. 702 and that it took an alternative route over other plots lying adjacent west of plot No. 702. The Defendants however challenged the Plaintiff's claim regarding the route taken by the water while passing over basti plot No. 702. In the trial Court they took the plea that the water never passed over basti plot No. 702 and that it took an alternative route over other plots lying adjacent west of plot No. 702. But in the lower appellate Court this alternative route was given up and the Defendants own witness (D.W. 4) stated that the water used to spread over the entire width of the village lane in basti plot No. 702 without having a well defined channel of its own. But so far as the Plaintiffs' right to take the water from the tank (plot No. 834) fat irrigating the fields was concerned, there was not only no challenge but in fact the Defendants in para 4 of their written statement frankly admitted that the Plaintiffs have been taking water from the tank from time immemorial (Abahamankalaru). Therefore the dispute between the parties is narrowed down to the limited question as to whether the water for irrigation purposes which the Plaintiffs were admittedly taking from time immemorial used to pass through a well defined channel while flowing over basti plot No. 702 or whether it used to spread over the entire width of the lane in that plot. The Defendants were said to have caused obstruction to the flow of water and hence the necessity for the present suit. 3. The trial Court- accepted the Plaintiffs' version regarding the route taken by the water while flowing over plot No. 702 as indicated by the red lines in the map (Ext. 7). It however held that the obstruction to the flow of water had been caused sometime in 1941 or 1942 and as the Plaintiffs' suit was brought only in 1944 the Plaintiffs cannot claim any prescriptive right of easement either u/s 26 of the Limitation Act or u/s 15 of the Indian Easements Act. But it held that the Plaintiffs have obtained a right of easement over plot No. 702 by the presumption of lost grant and therefore gave a decree in their favour. 4. The lower appellate Court accepted the decision of the trial Court regarding the failure of the Plaintiffs to prove prescriptive right of easement either u/s 26 of the Limitation Act or u/s 15 of the Indian Easements Act. 4. The lower appellate Court accepted the decision of the trial Court regarding the failure of the Plaintiffs to prove prescriptive right of easement either u/s 26 of the Limitation Act or u/s 15 of the Indian Easements Act. But it disagreed with the trial Court's finding regarding acquisition of right of easement by the presumption of lost grant and therefore dismissed the suit. In coming to this conclusion the lower appellate Court was mainly influenced by its view regarding the failure of the Plaintiffs to show that the water used to flow through a well defined channel over basti plot No. 70'2. It disbelieved the Plaintiffs' evidence (oral and documentary) (in this point. As regards immemorial user, it held that inasmuch as the last settlement proceedings took place in 1922-24 and the Plaintiffs' right was recognised in these settlement proceedings, the Plaintiffs have been exercising the right of taking the water only from the commencement of the settlement proceedings till the year of obstruction by the Defendants in the year 1941 or 1942. As this period was less than 20 years it held that the presumption of lost grant cannot be applied to the present case. 5. The lower appellate Court has clearly committed an error of law in appreciating the settlement entry. It is true that during the preparation of record of rights the settlement autherities recorded the fact as found at the time of settlement. But that does not mean that these facts came into existence only at the time of settlement. For instance, if the settlement authorities record a person as being in possession of a plot it will be fantastic to say that the possession of that person over the plot commenced only from the date of the settlement en try. Similarly from the mere fact that the right of the Plaintiffs to take the water from the tank was recorded during the settlement of 1922-24 it will not be correct to infer that the Plaintiffs began to take water from the tank only from these years. Similarly from the mere fact that the right of the Plaintiffs to take the water from the tank was recorded during the settlement of 1922-24 it will not be correct to infer that the Plaintiffs began to take water from the tank only from these years. On the other hand in view of the clear admission of the Defendants themselves in para 4 of their written statement (which the lower appellate Court appears to have completely overlooked) there seems to be no doubt that the Plaintiffs were taking water from the tank from time immemorial and the settlement authorities were merely recording facts which were existing from time immemorial. Consequently the Plaintiffs' claim based on the presumption of lost grant cannot be negatived merely because the settlement entry was made within 20 years of the date of the obstruction caused by the Defendants. 6. The law on the subject is so well settled that I need not discuss it at groat length. As early as 1880 the Privy Council in the leading case Rajrup Koer v. Abdul Hossein ILR 6 Cal. 394 made it clear that the provisions of the Limitation Act regarding acquisition of the right of easement were not exhaustive and that such right may be acquired by long enjoyment which under circumstances of each case may lead to a presumption of lost grant or agreement. In Chintamanrao Appasaheb Patvardhan Vs. Ramchandra Govind, it was pointed out that the same principle would apply even if (*Page - 5*) a party fails to prove his right of easement u/s 15 of the Indian Easements Act. Where it is a case of right of easement by immemorial user such right will not be extinguished by mere non-user for more than two years. This point was made clear in Surendra Nath v. Giridhari Singh AIR 1920 Cal. 940. Therefore if the Plaintiffs can establish immemorial user of the water of the tank through the channel in question for irrigation purposes the mere fact that they were obstructed in 1941 and the suit was brought only in 1944, three years latter, would lot in any way affect their claim. 7. Next comes the question whether the Plaintiffs have established immemorial user of the channel over basti plot No. 720. 7. Next comes the question whether the Plaintiffs have established immemorial user of the channel over basti plot No. 720. I have already shown that the immemorial user of the water from the tank (plot No. 831) has been admitted and the only dispute is a regards the route which the water takes while flowing over plot No. 702. To prove this fact the Plaintiffs have relied not only on the oral evidence d their villagers but also on the evidence of a public official, namely, a Revenue Inspector (P.W. 3) who made a local inspection and gave a report on 2-4-43. (Ext. 1) to the Subdivisional Officer of Bargarh. In that report he has clearly stated that he found marks of a permanent channel (tal) on basti plot. No. 702. The lower appellate Court as not given any clear reason for disbelieving his evidence. It has cast doubt on his memory and also pointed out that the sketch map which the officer prepared at the time of his local inspection was not proved in the case. But the officer clearly stated that the Patwari prepared another map (Ext.7) and that he (Revenue Inspector) was present when that was prepared. Whatever doubt there may be about the strength of memory of the witness the fact that there was a permanent channel on basti plot No. 702 as stated by him is proved by his report prepared at that time. Moreover, there is also the report of a Tahsildar (Ex. 2) dated 18-8-44 which also shows that the remnants of channel were found on basti plot No. 702 when he went for local inspection. Similarly there is a report of another Revenue Inspector who submitted the report dated 1-11-42 (Ext. 8) and the Tahsildar who gave his report dated 18-8-44 (Ext. 2) have not been examined as witnesses in this case. But their reports are clearly admissible in evidence (Section 35, Evidence Act) theugh on the question about the existence of a well defined channel on basti plot No. 702 the reports may be a weak piece evidence unless the officer themselves come forward as witnesses and face a cross-examination regarding the facts said to have been noticed by them at the time of their local inspections. But the other Revenue Inspector (P. W. 3) who also visited the spot and noticed the channel has appeared as a witness and faced cross examination. He has also proved the map prepared by the Patwari (Ext. 7), which according to him was verified by him at Bargarh by comparing with the sketch map which he himself prepared. Moreover the Plaintiffs further proved sketch maps (Ext. 5 series) which were prepared at the time of the Tahsildar's inspection by one Jaykrishna. P.W. 2. stated that these maps were prepared at the instance of the Tahsildar himself and his evidence on this point has not been challenged in cross examination. In the sketch maps (Ext. 7) it would be found that so far as the route taken by the channel on plot No. 702 is concerned there is practically no difference. 8. The lower appellate Court's discussion of the evidence is unsatisfactory. It has failed to notice the essential difference between 'discussion' on the one hand and a mere 'summary of the evidence' on the other. It has (*Page 7*) summarised the various pieces of documentary evidence and the depositions of the witnesses and then come to the conclusion that "It is impossible to hold that there was a well defined channel for the flow of water through the village basti plot No. 702". "The Tahsildar's report (Ext. 2) and the contemporary sketch maps (Ext. 5 series) have not been given their proper importance nor has it seriously applied its mind to the question as to how far the evidence of a public official like the Revenue Inspector (P.W. 3) should be relied upon. Moreover, its entire discussion of the evidence has been vitiated by its erroneous view regarding the effect to be given to a settlement entry already referred to in the previous paragraph. I cannot therefore take his finding regarding the failure of the Plaintiffs to prove the existence of a well defined channel on plot No. 702 to be binding in second appeal. 9. I cannot therefore take his finding regarding the failure of the Plaintiffs to prove the existence of a well defined channel on plot No. 702 to be binding in second appeal. 9. One of the main reasons given by the lower appellate Court for rejecting the Plaintiffs' testimony regarding the existence of a well defined channel is (to quote its own words) as follows: In my opinion it is not possible to come to any definite finding about the channel of flow of water witheut a proper plan prepared by a Commissioner showing the course of the water through the basti plot No. 702 with reference to the houses on either side of the village lane from the point it starts from the Northern extremity of the village till it reaches the lane from plot No. 228 to plot No. 657. From the concluding para of its judgment it appears that it was inclined to remand the suit to the lower Court for appointment of a Commissioner for that purpose. But it refrained from doing so in view of its finding that' the Plaintiffs have not been able to prove the enjoyment of a flow of water for continuous period of 20 years as of right. As I have already shown this view is not correct and from the admissions of the Defendants themselves it is wen established that the Plaintiffs have been using the water from the tank fro time immemorial. The limited question (*Page 8*) for consideration was the Actual route taken by the water over that plot and for that purpose a 1000.1 inspection by a Commissioner may be of great help especially in appreciating the oral and documentary evidence led by the parties. 10. I would therefore set aside the judgment of the lower appellate Court and remand the appeal to that. Court for rehearing, after giving the Plaintiffs a reasonable opportunity of taking out a. Commission for local inspection and also for preparing a sketch plan of the village basti plot No. 702 in the manner suggested in the judgment of the lower appellate Court itself. Court for rehearing, after giving the Plaintiffs a reasonable opportunity of taking out a. Commission for local inspection and also for preparing a sketch plan of the village basti plot No. 702 in the manner suggested in the judgment of the lower appellate Court itself. After the Commissioner is examined in the case and cross examined by the opposite side the lower appellate Court should come to an independent finding as to how far the Plaintiffs have succeeded in proving immemorial user of a well defined channel on plot No. 702 for taking water for irrigation purposes. It may then dispose of the case according to law in the light of the observations given above regarding the principles to be applied in proving easement by presumption of lost grant. The Plaintiffs however will not be permitted to re-agitate the question of limitation so far as acquisition of the right of easement either under the Indian Easement Act or the Limitation Act, is concerned. That question must be taken as concluded by the findings of the two Courts with which I am in agreement. 11. Mr. Misra On behalf of the Appellants also raised the question of abatement. It appeals that one Jaideb Pati was one of the Plaintiffs in the trial Court (Plaintiff No. 11). He died some time in 1946 during the pendency of the appeal in the lower appellate Court and no steps were taken for substitution of his heirs. The lower appellate Court therefore passed an order en 24-6.46 to the following effect: No step is taken to substitute the heirs of deceased Respondent No. 11. The appeal do abate against Respondent No. 11. (*Page-9*). At the time of the delivery of the judgment however and the preparation of the appellate decree this order appears to have been overlooked 'with the result that in the appellate judgment Jaideb Pati was shown as Respondent No. 11. There is no doubt that the appeal before the lower appellate Court had abated as against him and the question for consideration is whether such abatement will have the effect of making the whole appeal abate. It is true that in the present case the Plaintiffs are separate owners of different plots. But the right they claimed along with Jaideb Pati was the common right of taking water from a tank through a well fulfilled channel on plot No. 702. It is true that in the present case the Plaintiffs are separate owners of different plots. But the right they claimed along with Jaideb Pati was the common right of taking water from a tank through a well fulfilled channel on plot No. 702. The subsequent distribution of water amongst themselves after it has flown over that channel may indicate that the benefits derived from the right were enjoyed separately. But it is a question for consideration whether the right of passage for water over plot No. 702 is not a common right. If so whether in view of the Munsif's decree being final so far as Jaideb Pati's heirs are concerned, there is a danger of an infructuous decree being passed if that decree is set aside as against the remaining Plaintiffs. The Munsif's order is that the Defendants should keep open a well defined channel (five links wide) along a route indicated in the judgment. It was argued by Mr. G.K. Misra on behalf of the Appellants that if the lower appellate Court's judgment is to remain there will be two conflicting decrees-one directing the keeping open of a channel 5 links wide for the benefit of Jaideb Pati's heirs and another decree allowing the Defendants to continue their obstructions over that channel so far as the remaining Plaintiffs are concerned and that it would be impossible to execute-both the decrees. I do not wish to express my opinion on this question of abatement at this stage in view of my order remanding the appeal to the lower Appellate Court. But in passing its final order the lower appellate court should consider this question of abatement (*Page-10*) also give its decision thereon. 12. The appeal is therefore remanded for rehearing on the lines indicated hi the judgment. Costs will abide the result.