- (1.) This was a suit to have sundry channels cleared in, and obstructions removed from, a watercourse and from the opening of an "ahur," or reservoir, inasmuch as they prevented the plaintiffs from using the surplus water of the "ahur" for the irrigation of their village of Chandi. The plaintiffs claimed a prescriptive right to the use of this surplus water, which admittedly belonged to the defendants, and their allegation is (an allegation not denied) that the flow of the water has been stopped by an embankment, and carried off to irrigate the lands of a lately purchased property of the defendants situate close by the plaintiffs' village of Chandi. There are other allegations as to the position of the opening of the reservoir and as to the course of the surplus water, after first leaving the "ahur," which are denied by the defendants. The defendants also traversed the plaintiffs' allegation as to Mauza Chandi being irrigated by the surplus water of the Kesai reservoir. The first Court found for the plaintiffs, but on appeal the Judge reversed that decision, holding that the plaintiffs who claimed a right of user of the water had not shown any exercise of that right within the last twelve years, and had therefore lost it.
(2.) It is urged in special appeal that as it had been admitted by the defendants that the plaintiffs' lands were irrigated as stated by them in the years 1815 and 1848, it was for the defendants to show when the interruption to the user took place, the onus being on them.
(3.) We think that the Judge's finding in this case is one of fact on evidence, with which we cannot interfere in special appeal. The onus of showing uninterrupted user of the defendants' surplus water was on the plaintiffs. They produced witnesses who deposed to the fact, but the Judge disbelieved those witnesses; and the remaining evidence only showed that many years back the plaintiffs had enjoyed the privilege they now claim. There was nothing in the Judge's opinion to connect that enjoyment with any present user of the water, and the direct evidence was discredited.;