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1956 DIGILAW 371 (ALL)

Sughar Singh v. Putta Singh

1956-11-07

B.UPADHYA

body1956
JUDGMENT B. Upadhya, J. - This a Plaintiff's appeal arising out of a suit for injunction and for damages. The Plaintiff is the tenant of a plot No. 183. Adjacent to that plot is plot No. 201 belonging to the Defendants which has a well. The Plaintiff claims that he has a right to irrigate his plot No. 183 from the well in plot No. 201. It was contended in the suit that in March 1947 he started sowing tobacco in his plot and proceeded to irrigate it from the well, but that the Defendants did not allow him to do so with the result that has tobacco crop failed and he suffered a loss of Rs. 200/ -. This amount was claimed is damages in the suit in which a prayer for the issue of an injunction was also made. The suit was contested on various grounds and it was pleaded that the Plaintiff had no right to irrigate his land from the Defendants' well and that they had caused no obstruction so as to bring about the loss said to have been suffered by the Plaintiff. The liability to pay damages was also denied. 2. The learned Munsif held that the Plaintiff had acquired a right of easement to irrigate his plot from the Defendants' well and that he suffered damages because of the wrongful obstruction caused by the Defendants. The damages were assessed at Rs. 75/ -. Accordingly the Plaintiff's suit for the issue of an injunction and for Rs. 75/ - as damages was decreed. On appeal, the lower appellate court found that the Plaintiff had been irrigating his plot from the well in the Defendant's plot for a considerably long time but from the entries relating to the year 1352F it appeared that the Plaintiff had irrigated his plot from some other well. It appears that one of the Plaintiff's witnesses admitted at the trial that there was a well in the plot of one Jwala Ahir also in the neighbourhood, and the lower appellate court found that in 1352F the Plaintiff had irrigated his field from the well in Jwala Ahir's plot. The year 1352F ended on 30-5-1945. Therefore during the year commencing from July 1944 the Plaintiff did not irrigate his field from the Defendants' well but from another well. The present suit was filed on 15-4-1947. The year 1352F ended on 30-5-1945. Therefore during the year commencing from July 1944 the Plaintiff did not irrigate his field from the Defendants' well but from another well. The present suit was filed on 15-4-1947. Consequently the enjoyment of the right ceased prior to the commencement of the period of two years before the institution of the suit. Having regard to the provision of Section 15 of the Indian Easement Act, the court below took the view that the Plaintiff had failed to establish the right claimed by him. 3. Section 26 of the Indian Limitation Act also provides how a right of easement may be acquired. Section 15 of the Indian Easements Act and Section 26 of the Indian Limitation Act both provide that the period of 20 years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. In the present case, it has been found that though the Plaintiff (sic)d enjoyed the right for a period exceeding (sic)rs, the period of his enjoyment had ended prior to the two years next before the institution of the suit. 4. A title to easement is not complete merely upon the completion of the statutory period of 20 years and, however long the actual period of enjoyment may be, no absolute and indefeasible right can be acquired until the right is challenged in same suit and adjudicated upon. In order to establish the right when brought into question the enjoyment relied upon must be an enjoyment for a period of 20 years ending within 2 years of the institution of the suit in which the right is disputed. This the view taken in several cases e.g. Siri Kanta Pal v. Radha Govind Sen ILR 56 Cal. 927; Traders and Miners, Limited v. Dhirendra Nath Banerjee ILR 23 Pat 115 and Maung Prve v. Maung Chau Nyein ILR 7 Ran 487. This Court also has taken a similar view in Kedar Nath v. Sohan Lal 12 ALJ 693. 5. Learned Counsel for the Appellant urged that there was no interruption within the meaning of the statute as a break due to an obstruction caused by the owner of the servient heritage only could amount to interruption. This Court also has taken a similar view in Kedar Nath v. Sohan Lal 12 ALJ 693. 5. Learned Counsel for the Appellant urged that there was no interruption within the meaning of the statute as a break due to an obstruction caused by the owner of the servient heritage only could amount to interruption. The ground on which the lower appellate court has refused to accept the Plaintiff's claims is not that there was an interruption within a period of 20 years. The ground as mentioned above is that though the Plaintiff is found to have enjoyed the right for more than 20 years he has not enjoyed the easement within two years of the institution of the suit in which the right is disputed. Having heard learned Counsel for the Appellant at some length, I am unable to see how a different view could be taken. 6. This appeal fails and is dismissed with costs.