- (1.) I am of opinion that this special appeal should be dismissed. The suit was for a declaration of the plaintiff's right to fill up an excavated jhil, to close up a sench and to recover the price of certain trees mis-appropriated by the defendants. The defendants' answer was that they had a right of user by prescription.
(2.) The first Court gave a decree prohibiting the defendants from using the disputed jhil and sench for the purpose of irrigation, and directing the plaintiff to fill up the jhil at his own costs.
(3.) The lower appellate Court in the first instance gave a judgment to the effect, that if the tank were a lakhiraj one or repaired or if user had ceased even for a short time, the right by user would not exist; but if the tank were mal and kutcha, the right would exist.;