Judgment 1. THIS is an appeal by the plaintiff against the judgment and decree of reversal, dismissing her suit for declaration of easement right and for mandatory and permanent injunction. 2. THE plaintiff's case is that she is the owner of a tank comprised in plot No. 2868 in mouja British Chandernagore Police Station Chinsurah in the district of Hoogly. There is a mohana, or outlet on the eastern side of the tank for discharge of excess water of the said tank. This excess water is discharged through this mohana towards the east along the Municipal pucca drain lying along the northern side of the Municipal road of plot No. 2873 and thence turning north passes on to the drain along the eastern side of plot No. 2865, and ultimately to the garth of plots No. 2887/2888/2889. The drain along the eastern side of plot No. 2865 is the disputed drain in this suit. There was a claim for bailing out water through this channel, which was given up at the trial. The right of easement of the discharge of excess water as stated above is being enjoyed as of right and without interruption from time immemorial and the plaintiff is entitled to the right of such easement without any interruption from any quarter. Admittedly the land of plot No. 2865 originally belonged to Ashutosh Ghosh, who sold the same to Ram chandra Pal, who, in his turn sold the said land to the defendant. The defendant closed the disputed drain in May, 1953 and failed to remove the obstructions therefrom inspite of demands. As such action clouded the plaintiffs right of easement, the suit was instituted claiming a declaration of her right of easement for discharge of excess water through the drain on the eastern side of plot No. 2865 and for mandatory injunction for removal of all obstructions therefrom and also for permanent injunction restraining the defendant from putting any obstruction in future. The suit was contested by the defendant who filed a written statement denying that the plaintiff ever had any right of easement over his land as claimed. The suit was contested by the defendant who filed a written statement denying that the plaintiff ever had any right of easement over his land as claimed. It was stated that there was a private drain along the eastern side of plot No. 2865 but the drain was closed by him within one year of his purchase in 1347 B. S. It was also stated that as the slope of land of plot No. 2873 was from east to west, there could be no natural easement from the plaintiff's tank towards the east. The defendant further stated that there was no existence of the drain within two years from the institution of the suit which is thus barred by limitation. There was a further defence that the Municipality is a necessary party to the suit and the suit is bad for defect of parties. The defendant accordingly prayed for the dismissal of the suit, 3. THERE was a local inspection and at the trial, the parties adduced evidence, oral and documentary. The learned Munsif, on a consideration of the materials on record, held that the suit is not bad for non-joinder of parties as the plaintiff confined her relief to plot No. 2865, on deletion of her claim for easement over plot No. 2873 belonging to the Municipality. On acceptance of the evidence adduced by the plaintiff's witnesses, and on documentary evidence he found that the plaintiff acquired the right of easement to discharge the excess water of her tank through the disputed drain over the defendant's plot No. 2865. It was further held that the suit was not barred by limitation. Accordingly the suit was decreed with costs. 4. ON appeal, the lower appellate court came to the conclusion, on a consideration of the oral evidence of the plaintiff's witnesses, that it could not be said that the plaintiff succeeded in proving that she acquired a. right of easement of discharging excess water of her tank through the drain of the defendant. As to limitation, it was held that, as even on the case of the plaintiff, the obstruction was put in 1950 or 1951, it could not be said that the plaintiff was enjoying the right till with two years from the date of institution of the suit and accordingly the suit was barred by limitation. As to limitation, it was held that, as even on the case of the plaintiff, the obstruction was put in 1950 or 1951, it could not be said that the plaintiff was enjoying the right till with two years from the date of institution of the suit and accordingly the suit was barred by limitation. The appeal, in the circumstances, was allowed and the judgment and decree of the trial court were set aside and the suit was dismissed. The present appeal is against the said decision. Mr. Manindra Nath Ghosh, the learned counsel appearing for the appellant, has contended that the lower appellate court did not take into consideration the evidence on record in coming to his conclusion that the plaintiff had not succeeded in proving that she acquired a right of easement for discharging excess water of her tank through the drain of the defendant. He referred me to the documentary evidence on record as also the evidence of several witnesses on behalf of the plaintiff which, according to him, clearly established the right of easement of the plaintiff over the defendant's land. He also drew my attention to the admission made by the defendant in his written statement wherein he has stated that there was in existence a drain over his land, but, after his purchase in 1347 B. S. he had closed the drain within one year of his purchase. Mr. Hemanta Kumar Mitra, the learned counsel appearing for the defendant has contended that the findings of the lower appellate court to the effect that the plaintiff had failed to prove to establish her right of easement over his client's land is a proper finding on materials on record and is also a finding of fact which should not be disturbed in a second appeal. 5. ON a consideration of the respective contentions of the parties, it appears to me that the lower appellate court has failed to consider the documentary evidence adduced by the plaintiff as also the admission made by the defendant in his written statement. It will appear from the exhibit 6 (a) certified copy of Khatian No. 1399 in respect of plot No. 2865 that there is a drain along the eastern side of the said plot for the purpose of discharge of water. It will appear from the exhibit 6 (a) certified copy of Khatian No. 1399 in respect of plot No. 2865 that there is a drain along the eastern side of the said plot for the purpose of discharge of water. It will also appear from the deed of conveyance dated May 24, 1940 exhibit 7 by Ashutosh Ghosh to Ram Chandra Pal, the vendor of the defendant that such right of discharge of water along the eastern side of the plot No. 2865 has been expressly mentioned. It is, therefore, obvious that the defendant purchased the land subject to the burden of a drain for discharge of water. Though the defendant in his examination-in-chief stated that this drain along the eastern side of his land was not connected with the Municipal drain of plot No. 2873, in his cross-examination he admitted that this drain started from the Municipal drain and terminated in the northern end of his house beyond which there is a ditch. As to the right of easement over this drain, the evidence of the defendant is that his uncle filled up the drain running from south to north after one year of his purchase i.e. in or about 1941 and in its place constructed a small drain. Apart from his evidence there is no other evidence on the part of the defendant about the existence or otherwise of the drain. It is also his evidence that he had knowledge about his house for last 11 or 12 years but had no knowledge about what happened before that period and he gave evidence in 1958. There is thus no evidence on the part of the defendant in support of his contention in the written statement that this drain was closed one year after his purchase. On the contrary, existence of the drain is proved by the documentary evidence referred to above and also by P. W. 3 Sudhir Chandra Das who saw such overflow in 1951. P. W. 4, Sailendra Nath Nandy also said about the discharge of surplus water from the plaintiff's tank through the disputed drain for last 35 years and the last time he saw the discharge of water was in 1952. P. W. 5 is Ram Chandra Pal, the defendant's vendor, who also said that, when plaintiff's tank overflowed, the water from it used to pass through the disputed drain, to the ditch. P. W. 5 is Ram Chandra Pal, the defendant's vendor, who also said that, when plaintiff's tank overflowed, the water from it used to pass through the disputed drain, to the ditch. He saw such passing of water 8 or 10 times. P. W. 7, Bholanath Mullick, another neighbour, has also stated that when the plaintiff's tank overflows, the water from it passes through the Municipal drain on the east to the disputed drain and gets discharged into the ditch and he saw such discharge of water for over last 20 years, P. W. 8, Netai Charan De was a tenant of the house of the defendant in 1942 and was also from 1944 to 1956 or 1957 and he stated that he saw that the excess water of the plaintiff's tank used to get discharged through the disputed drain in the Municipal garth. 6. THE lower appellate court failed to consider the documentary evidence, so material for the purpose of arriving at a correct finding as also the averment in the written statement in regard to the existence of the drain in plot No. 2865. Such non-consideration of material evidence and pleading is a substantial defect in procedure and warrants an interference in its findings on the right of easement claimed in the suit. On the documentary evidence as also on the evidence of the plaintiff's witnesses, which I find no reason to disbelieve, and on the admission of the defendant as also in absence of any rebuttal evidence on the part of the defendant, I am of opinion that the plaintiff has established that she has acquired by prescription her right of easement of discharge of excess water from her tank of Dag No. 2868 through the drain along the eastern side of Dag No. 2865 to the Municipal garth on the north and I hold accordingly. Mr. Mitra has contended with great force that the plaintiff is not entitled to a decree in the suit in view of the fact that there cannot be an easement through public land and plot No. 2865 is not contiguous to plot No. 2868. In support he relied on the decision in (1) Kailash Chandra Nandi v. Surendra Nath Samanta, 18 C. W. N. 378. In support he relied on the decision in (1) Kailash Chandra Nandi v. Surendra Nath Samanta, 18 C. W. N. 378. In that case the controversy was whether, the plaintiff could acquire a prescriptive right to discharge the surplus water of his land on the land and tank of the defendant through a channel across a public road. It was observed as follows : "if the tenements had been contiguous, there is no doubt that the plaintiff might by prescription have acquired a right to discharge the surplus water of his land through a channel into the land of the defendants. But in the case before us, a public way intervenes between the two tenements. It cannot be disputed that the plaintiff cannot possibly have acquired right, of easement in so far as passage of his water through the channel across the public way is concerned. " In the present case, the plaintiff is not claiming any right of easement across any public road. On the contrary admittedly there is a Municipal drain along the north of plot No. 2873. The case referred to by Mr. Mitra can therefore have no application to the facts of the case and it cannot be said on the above authority that in the circumstances the plaintiff could not acquire any right of easement over the defendant's land though it is not contiguous to the plaintiff's tank. The contentions of Mr. Mitra have therefore no substance and. must be rejected. 7. MR. Mitra has next contended that all the servent owners have not been made parties to the suit. According to him, the plaintiff was asking for a declaration of right of easement over the Municipal drain as also over the land of the defendant but the Municipality has not been made a party. In support, he relied on the decision in (2) Madon Mohan v. Akshay Kumar 14 C. W. N. 15. In that case, the plaintiffs' suit was for a right of way along the khal over certain portion of the land of the defendants and to have removed from the khal certain obstructions which the defendants had put on it. In support, he relied on the decision in (2) Madon Mohan v. Akshay Kumar 14 C. W. N. 15. In that case, the plaintiffs' suit was for a right of way along the khal over certain portion of the land of the defendants and to have removed from the khal certain obstructions which the defendants had put on it. It appears that the defendants to protect their property from erosion by the khal, which was widening, made a small diversion through a new khal and all the villagers who enjoyed the right of passage through the old khal accepted without objection the diversion as being equally convenient as the old khal. The court found that the right over the khal was a customary right and such right must necessarily be reasonable. As no other villagers raised any objection to the diversion, the plaintiffs' suit was dismissed on the findings that the plaintiffs had no right to have the passage reopened as the diversion was accepted by the other persons having such right as convenient. I do not find that the principle of the above cases can have any application here. Further, the plaintiff here is not asking for any relief against the Municipality as will appear by the amendment of the reliefs in the plaint. As a matter of fact, the issue of the non-joinder of the Municipality was not agitated before the lower appellate court and in view of the amendment of the plaint, the learned Munsif was of opinion that the Municipality was not a necessary party to this suit. I am of opinion that in absence of any relief against the Municipal drain and of the position even admitted by the defendant in his evidence that there is a drain along the road on the northern side of plot No. 2873, the Municipality is not a necessary party in this proceeding. 8. MR. Ghosh assailed the judgment of the lower appellate court in its finding that the suit is barred by limitation. The lower appellate court on an interpretation of section 26 of the Limitation Act, 1908 is of opinion that the suit is to be instituted within two years from the date the alleged right is said to have been infringed by the defendant. The lower appellate court on an interpretation of section 26 of the Limitation Act, 1908 is of opinion that the suit is to be instituted within two years from the date the alleged right is said to have been infringed by the defendant. However long the period of enjoyment, no absolute or indefeasible right can be acquired until the right is brought in question in the same suit and no complete right will have been got by enjoyment for a period however long unless it is continued to a time within two years next before the institution of the suit. The court was of the view that the plaintiff as required to prove that he enjoyed the right of easement within two years before May 18, 1954 that is till May 18, 1952. According to P. W. 4, there was an obstruction by the defendant No. 1 in December, 1950 while according to P. W. 6 the defendant closed the drain in 1951. So there was obstruction of the drain and naturally an infringement of the right in 1950 or 1951 and the suit was brought in 1954 that is two years beyond the date of such infringement and accordingly the lower appellate court held and rightly according to Mr. Mitra that the suit is barred by limitation, As we have seen in the written statement the defence was that the drain was closed within one year from 1847 B. S. We have also seen that the defendant has failed to establish that the drain was closed as stated above. Apart from the said averment, excepting denial of the user of the alleged right by the plaintiff there is no evidence adduced by the defendant to prove that the drain was closed at any time by him except in 1950-51 and 1953 as alleged by the plaintiff. The plaintiff has complained of obstruction of the drain in May, 1953 and if her said allegation is correct, the suit undoubtedly will not be barred by limitation. It transpires on the evidence of the plaintiff's side that Netai De closed the drain in or about 1950 and the plaintiff preferred a complaint with the Municipality. An enquiry was made and a report was submitted. The mother of the defendant gave an undertaking and the drain was opened. Mr. It transpires on the evidence of the plaintiff's side that Netai De closed the drain in or about 1950 and the plaintiff preferred a complaint with the Municipality. An enquiry was made and a report was submitted. The mother of the defendant gave an undertaking and the drain was opened. Mr. Mitra has very seriously contended that the original written undertaking of the mother of the defendant has not been produced and instead an alleged certified copy of the said undertaking has been produced on the ground that the original was lost. Such certified copy has been marked as exhibit 3. Mr. Mitra has contended that this document is inadmissible in evidence and could not be relied upon. Even accepting that exhibit 3 is inadmissible as contended there is sufficient evidence to indicate that there was an obstruction on the drain by Netai De, a tenant of the defendant obviously for or on behalf of the defendant as will be borne by exhibits 5 and 4 (a) and 4 (b. It is also further in evidence that the disputed drain was opened by the men of the Municipality as has been testified by P. W. 3, P. W. 4 and P. W. 8. On the material on record, I am satisfied that the drain was closed in or about December, 1950 and was opened by the Municipality on the complaint on behalf of the plaintiff made by her father vide exhibit 5. It is also in evidence that some time in May, 1953 the defendant again closed the drain on his land for obstructing the discharge of surplus water from the plaintiff's tank through the Municipal drain to the drain on the eastern side of his land of Dag No. 2865. 9. MR. Mitra has however contended that there is no evidence that the said right of easement was exercised by the plaintiff within two years next preceding the date of the institution of the suit and in absence of such evidence the suit must be deemed to be barred by limitation as was rightly held by the lower appellate court. Mr. Ghosh appearing on behalf of the plaintiff-appellant has contended that the right of easement can only be used according to a nature of the right. Mr. Ghosh appearing on behalf of the plaintiff-appellant has contended that the right of easement can only be used according to a nature of the right. Here the right was to discharge the excess water of the plaintiffs tank and it is not always that there was excess water in the tank which required its discharge through defendant's land. If there was no such excess or surplus water in the plaintiff's tank, there would be no occasion for exercise of the right of easement by the plaintiff. Such right of easement again would not be barred merely on the ground that such right was not exercised within the statutory period of two years prior to the institution of the suit in absence of any occasion for it. Nonetheless the right existed and could not be, Mr. Ghosh contended, barred or extinguished by limitation for non-user for the said period. As is well settled, absolute and indefeasible right of easement can be acquired only on proof that such right has been peaceably and openly enjoyed by a person claiming title thereto as a right without interruption for 20 years. We have already seen that such right was exercised for long over 20 years as an easement and as of right without interruption for long over 20 years and the plaintiff had acquired an absolute and indefeasible right of such easement. The statute however required that the period of enjoyment must end within two years before the institution of the suit wherein the claim to which such period relates is contested. What will then be the position when the nature of right of easement, as in this case, is such that there may not be any occasion for exercise of the right within a period of two years from the institution of the suit. Our attention was drawn to the decision in (3) Gopal Chandra Sen v. Bankim Behari Roy, 26 C. W. N. 121, wherein it was held as follows: "the position, then, is that the plaintiff acquired an absolute and indefeasible right of way by 'enjoyment' for the statutory period; there was no discontinuance of the 'enjoyment' by reason of an obstruction by the defendants, till within a few days previous to the institution of this suit, and there is no suggestion that the plaintiff voluntarily abandoned or discontinued the exercise of the right at any time before such date. In the circumstances, it is not necessary for the plaintiff to prove affirmatively 'actual user' of the way down to a date within a period of two years from the suit. A person may, without violence to language, be said to be in 'enjoyment' of a right of way during a period of time, though he does not actually 'use' the way every moment : As explained by Garth, C. J. in Sham Churn v. Tariney Churn (I. L. R. 1 Cal. 422) mere non-user, for a time, of an easement which the owner might, if pleased, enjoy during every hour of that time, but which, for some good reason he does not care to enjoy is not necessarily discontinuance of enjoyment of the right, for instance where the owner of a house does not use a way to it because the house is for a time unoccupied or where a farmer desists for a time from using a pasture because he happens to have no pasturable cattle or because herbage is scanty or unwholesome by reason of draught or like cause, each may still be considered as an enjoyment of the right of easement. * * * *. . . . . . To put the matter briefly, cessation of user is not always inconsistent with continuance of enjoyment of a right or in other words, cessation of user is not an invariable indication of abeyance of enjoyment of a right. . . " 10. EXTENDING the above principle to the nature of the right in the present case, it may be there is no occasion or necessity for discharge of excess water of the plaintiff's tank over the defendant's land for years. It cannot be said from such non-user that the plaintiff's right was thereby extinguished. It cannot also be said nor is there any suggestion that in such state of affairs that the plaintiff voluntarily abandoned or discontinued the exercise of such right. Assuming that there was no occasion for obstruction as contended by the defendant, even non-user of the right of easement by the plaintiff from 1950 or 1951 will not non-suit the plaintiff when the suit is instituted in 1954 on the ground of limitation. Assuming that there was no occasion for obstruction as contended by the defendant, even non-user of the right of easement by the plaintiff from 1950 or 1951 will not non-suit the plaintiff when the suit is instituted in 1954 on the ground of limitation. For there is no relinquishment of such right nor any occasion or necessity for exercise of the right during the period and the plaintiff must be considered to be in enjoyment of the right of easement. In the circumstances, even though there was no user of the right from 1950 or 1951 till the institution of the suit in 1954, it is impossible to hold that the suit is barred by limitation under the provisions of section 26 of the Indian Limitation Act, 1908. In disagreement with the judgment of the lower appellate court, I hold that the suit is not barred by limitation, and the plaintiff, in the premises, is entitled to the reliefs claimed. For these reasons the plaintiff's suit must be decreed. It is accordingly ordered that the appeal be and is hereby allowed, the judgment and decree under appeal are set aside and the judgment and decree of the trial court are restored. In the circumstances of the case the parties will bear their respective costs of this appeal.