DINGER PANDA AND ORS. Vs. BHIMA PADHAN AND ORS.
LAWS(ORI)-1950-10-6
HIGH COURT OF ORISSA
Decided on October 30,1950

Dinger Panda And Ors. Appellant
VERSUS
Bhima Padhan And Ors. Respondents

JUDGEMENT

Narasimham, J. - (1.) 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. 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. 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 under Section 26 of the Limitation Act or under Section 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.
(3.) THE lower appellate Court accepted the decision of the trial Court regarding the failure of the Plaintiffs to prove prescriptive right of easement either under Section 26 of the Limitation Act or under Section 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.;


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