Atkinson, J.:— The plaintiff in this suit claims a declaration that he is entitled to take water from a certain tank on the defendant's land for the purpose of irrigating his holding bearing survey plot No. 12 in Mauza Lohanalya. He claims that he has enjoyed this right for a very considerable time through his ancestors and his predecessors-in-title, and that the defendant is not justified in endeavouring to obstruct him in taking the water and using the same for the purpose of irrigation. In para. 4 of the plaint the plaintiff sets out the right under which he claims to use the water from the tank in question and he says
“that the plaintiffs from the time of their ancestors have all along taken water from the said tank as of right peaceably and openly for over 20 years from the places mentioned in the schedule.”
2. The learned Munsif came to the conclusion that this plea of the plaintiff's right to the use of the water for irrigation was justified, and that the plaintiffs were entitled under the doctrine of lost grant to a declaration of the easement they claimed as against defendant 1, who was the plaintiff's landlord. Defendant 1 was the sole defendant who contested this appeal. The wording of the plea set out in the plaint is more in accordance with a plea of the acquisition of a right by prescription under the Limitation Act than with the acquisition of a right based upon the doctrine of lost grant. No doubt, strictly speaking, a right based upon lost grant ought to be expressly pleaded as such. But in this country pleadings must not be construed with an excessive degree of exactness and precision. If the plea as framed did not accord in form with the precise nature of a plea of right founded on the fiction of a lost grant, it would have been right and proper for the trial Court to have allowed an amendment of the pleadings so that the true issue arising between the parties might be determined.
3. In truth there is very little difference between the wording of a plea claiming a right by prescription and alternatively by lost grant and it appears to me that on the form of the plea set forth in para. 4 of the plaint it would be open to any Court to hold on a reasonable construction of the plea that the plaintiff was entitled to the relief he sought on the basis of a lost grant, if the right claimed was unsustainable by prescription. The lower appellate Court agreed with the decision of the Munsif and held that as between landlord and tenant no right by prescription could be established by the plaintiff as against defendant 1, his landlord, that nevertheless the plaintiff on the evidence was entitled to relief on the basis that the Court should presume a lawful origin to support long continued and undisputed user as of right. The evidence is all one way and the consistent acts of user by the plaintiff and his predecessors-in-title of the water in the defendant's tank established affirmative evidence sufficient to justify any Court in finding a lost grant to support a user which had extended over a period of 50 years. The law with regard to lost grant appears to me clear. The legal direction given by a Judge to a jury in England trying an issue of this kind founded on the basis of lost grant is that if the plaintiff has openly and notoriously enjoyed the particular right in question for a period of 20 years, the jury may presume a grant to support such user; and if the plaintiff proves that he has enjoyed the right or easement in question for a period of 40 years, then the jury must presume a lost grant.
4. The point raised by Mr. Boy on second appeal before us on behalf of the defendant-appellant is that he looked upon the plea in para. 4 of the plaint as one under the Limitation Act; and he, therefore, was taken by surprise by the Court holding that the case was one to which the doctrine of lost grant was applicable; and he argues that if he had known that the Court intended to adopt that view, he could have adduced evidence to show that the plaintiff only enjoyed the right in question by way of permission and not as of right, and that this evidence, if believed, would have defeated the question of the plaintiff's right founded on the basis of a lost grant. However, we cannot yield to Mr. Roy's argument, because it appears to us that the question of permission was equally consistent whether the case was one under prescription or lost grant. But I cannot think that the defendant was in any way prejudiced by reason of the course adopted by both the lower Courts. The relationship of parties being that of landlord and tenant, the question of prescription under the Limitation Act could not possibly have arisen between them. The defendant might have reasonably inferred from this fact that the plaintiff's claim and evidence was such as would justify the Court in holding that the plaintiff was entitled to a declaration founded on the basis of a lost grant, to support a lawful origin for the long and continued exercise of the right claimed.
5. This is the only point which has been urged in appeal by Mr. Roy on behalf of the appellant in this second appeal. Mr. Roy now asks us to send the case back in order to enable him to adduce, evidence for the purpose of showing that the plaintiffs really only enjoyed the right which they now claim to have established by permission from defendant 1. We are not disposed to adopt that course, having regard to the general evidence in the case.
6. We think that the evidence on the record shows and it has been proved by the witnesses on behalf of the defendant that the plaintiff's predecessors-in-title openly and notoriously used the water from the tank in question as of right without any objection by the defendant; and that there was, therefore, ample evidence in the case to justify the Court in presuming the existence of a lost grant to support the declaration sought by the plaintiff. We, therefore, must disallow this appeal with costs.
7. Chapman, J.:— I agree.
V.S/R.K
8. Appeal dismissed.