S.N.Modi, J. - (1.)This second appeal arises out of a suit filed by the plaintiffs respondents for injunction restraining the defendants-appellants from interfering with the right of the plaintiffs to irrigate their fields bearing khasra Nos. 390, 390/1, 391/2, 392/1, 392/2 and 407 situate at village Dantri from the well bearing khasra No. 389.
(2.)The plaintiffs' case is that they have been irrigating their fields with the water drawn from the well bearing khasra No. 389 for more than 100 years as of right and without interruption. It is not in dispute that the said well is owned by the defendants. Formerly too, it was owned by the defendants and their ancestors in the capacity of their being Jagirdars of village Dantri. The defence of the defendants is that the irrigation of the plaintiffs' fields from the said well was permissive and in lieu of certain payment made by the plaintiffs. Both the courts below on consideration of the evidence led by the parties came to the conclusion that the plaintiffs-respondents have been irrigating their fields from the water drawn from the said well for a period of more than 45-50 years and further that they paid no amount to the defendants for using the water of the said well. This is a pure finding of fact and I see no reason to disturb that finding.
(3.)While arguing the appeal, it is submitted by the learned counsel for the defendants-appellants that respondent. No. 1 Girdharsingh was admittedly the Jagirdar of village Dantri before 1956 when his jagir was resumed under the Rajas-than Land Reforms and Jagir Resumption Act, 1952. That being the case, it is argued that upto 1956 Girdharsingh was not only the owner of the said well but he was also the owner of the lands irrigated by the plaintiffs-respondents. It is further argued that since the ownership over the lands and the well vested in one and the same person and the relations between the parties being that of the landlord and tenant, the question of immemorial exercise of right of irrigation does not arise so as to justify the inference of a legal origin of such enjoyment. The learned counsel laid considerable stress on the fact that the plaintiffs have been paying chachi-lagan of the lands irrigated by them. The argument, though attractive, is wholly untenable. As pointed out above, it stands proved that the plaintiffs have been irrigating their fields from the said well for the last half a century uninterruptedly. As the relationship between the parties was that of the landlord and the tenant, it is but natural that the tenants must have paid the rent to the landlord for the lands cultivated by them. So nothing turns out on the fact that the plaintiffs paid chachi-lagan to the defendants. It is true that a tenant cannot acquire a prescriptive right of . easement in land or well 'belonging to his lessor but he may claim a right of easement based on immemorial user, for, in such a case, there is a strong presumption that the enjoyment of the right had its origin under an agreement or grant. It has been laid down by the Judicial Committee in Rajroop Koer v. Abdul Hussein; (1880) 7 Ind App 240 (PC) that when enjoyment of a right has continued uninterrupted for a long series of years, such enjoyment should be attributed to a legal origin and the court should presume a grant or agreement. The relationship of the landlord and tenant does not render inapplicable the above consideration. Again, in Bhupendranath v. Ananda-prosad, (1913) 20 Ind Cas 359 (Cal) there was a tank belonging to the landlord and it was proved that from long time the tenants of the lands surrounding the tank had irrigated their fields with water drawn from the tank. Relying upon the decision of their Lordships of the Privy Council in Rameshur Pershad v Koonj Behari, (1878) 6 Ind App 33 (PC).' it was held that inference could legitimately be drawn that the tenants had acquired an easement to irrigate their lands from the water drawn from the tank under a presumed grant. The same principle was applied in Madhubdass v. Jageshchandra, (1903) ILR 30 Cal 281 and Babujan v. Ramjaddi, (1913) 18 Ind Cas 597 (Cal). The case in hand, in my opinion, is clearly governed by the principle laid down in the aforesaid decisions. The next contention of the learned counsel, for the defendants-appellants is that although a plea had been taken in the written statement that the suit was bad for misjoinder of the parties and causes of action, no issue on the point was framed by the trial court. A similar contention was raised before the lower appellate court but it was repelled. It may be stated at once that mere omission to frame issues is not necessarily fatal to the trial of the suit unless such omission has affected the disposed of the case on merits. In the present case, the suit was filed by six persons alleging that they have been irrigating their fields from well bearing khasra No. 389. One of the plaintiffs, namely, Gokul who possessed more than half of the land, came into the witness-box and supported the plaintiffs' case put forward in the plaint. There was no conflict of interest between the plaintiffs inter se. The parties went to the trial fully knowing the rival case and led all the evidence in support of their respective contentions. In such circumstances, it cannot be said that the absence of the issue was fatal to the case or that there was such mistrial which vitiated the entire proceedings. The suit cannot be dismissed on this narrow ground. I also see no good reason to remand the case as the evidence which has been led in the case is sufficient to arrive at the conclusion to which the courts below did.