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Ameer Ali and Pratt, JJ -
(1.) This second appeal arises out of a suit brought by the plaintiffs for a declaration of their right to erect and maintain a bund at a place described in the schedule attached to the plaint as lea, and for a permanent injunction restraining the defendants, other than the pro forma defendants, from removing it in future.
(2.) The circumstances which gave rise to the suit are as follow: There appears to be a natural streamlet, which issuing from some villages called Fulnagar, Beldanga, &c., in the District of Burdwan, flows ill a southerly direction past the villages of Mitrapur and Bijoypur, where the plaintiffs have .their holdings and Arachia where the defendants reside and have their cultivation, and then takes an easterly course through the village named Palsana, where it joins the river Khari. The plaintiffs alleged that during the rainy season when the streamlet is filled with water the inhabitants of the riparian villages have, from time immemorial, had the right of raising bund, within the respective limits, of conserving water sufficient for irrigating their lands for agricultural purposes and letting out the surplus water for the use of the holders of servient tenements, and that they, as the owners of property lying on the bank of this streamlet, had, in accordance with the above prescriptive and customary right, constructed a dam at the place ka which was demolished by the principal defendants in the year 1302. They alleged further that this dam was built in this manner every year and that the practice was observed as a matter of right, publicly and uninterruptedly for upwards of twenty years for the purpose aforesaid, and that the defendants have and had no right to interfere with the construction of the bunds in question. They stated further that the people of the defendants village had a similar right to build a dam or bund within their own limits for the conservation of water and that they were not entitled to interfere with the exercise of the right on the part of the plaintiffs; and as the right which they claimed was one shared in by all the riparian holders of Mitrapur and Bijoypur, the plaintiffs asked the Court to grant them leave under Section 30 of the Civil Procedure Code. And they prayed for a declaration that they and their co-villagers holding the lands described in the plaint as kha and gah have a prescriptive right based on immemorial practice to conserve water by constructing a bund at the place mentioned in schedule (ka) for the purpose of irrigating their lands (kha) and (gah). They also asked that the defendants might be restrained from interfering with any bund the plaintiffs might construct within the confines of Mitrapur and Bijoypur.
(3.) The defendants in their written statement alleged, inter alia, that the place where the plaintiffs claim to erect the bund was not within the confines of Mitrapur and Bijoypur as alleged by them; secondly, that neither the plaintiffs, nor the pro forma defendants, nor the ryots of Mitrapur and Bijoypur, ever constructed a dam at that place, and that they had no such right, nor had they held possession of the place, nor been in the practice of building dams for the last twelve years. The defendants also denied that the plaintiffs irrigated their land with the water of the streamlet, and they went on to allege that from time immemorial the defendants had "as usual" a bund within the confines of their own village, and that in the event of any scarcity of water, the people of that village cause their lauds to be irrigated by taking water from the stream.;
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