1. The litigation which has culminated in this appeal is the result of a dispute in respect of the right to irrigate two fields with water drawn from an adjoining tank. The tank is described in schedule "ka' attached to the plaint, while the two fields are comprised within boundaries set out in schedules 'kha' and 'ga' attached to the respectively. The plaintiff's claimed a right to irrigate the fields, as they and their predecessors had done from time immemorial. The defendant, who is the proprietor of the village, is the landlord of the plaintiffs and the owner of the tank. He denied that the fields had been irrigated from time immemorial, and further pleaded that the alleged user, even if established, could confer on the plaintiff's a right enforceable against their landlord, specially as for many years past the tank had been in the occupation of other tenants. As regards the field in schedule 'ga' he took the further defence that the right of irrigation, even if it ever existed in fact and in law, had been extinguished by his purchase of the tenancy at a sale for arrears of rent. The Court of first instance dismissed the suit. Upon appeal, the Subordinate Judge has modified that decision and has awarded the plaintiffs a decree in respect of the field in schedule 'kha' only. The defendant has appealed to this Court and has contended that the decree of dismissal made by the Trial Court should not have been disturbed. The plaintiffs have presented a memorandum of cross-objection and have argued that the claim should have been decreed in respect of the field in schedule 'ga' in addition to the field in schedule 'kha'.
2. In support of the appeal by the defendant, the twofold ground has been urged that immemorial exercise of a right of irrigation does not, in the present case, justify the inference of a legal, origin of such enjoyment; first, because the dispute is between a landlord and his tenant, and, secondly, because for many year before the date of the alleged obstruction, the tank (the servient tenement) had been in the occupation of other tenants. To test the validity of these contentions, it is necessary to bear in mind that the Subordinate Judge has found, first, that the fields have been irrigated for more than half a century by means of water bailed out of the tank and carried to the site through defined channels; secondly, that after purchase of the interests of the Sets, the former landlords, on the 20th June 1891, the defendant let out the tank to the Adaks for two successive terms of seven years each, under leases dated the 8th January 1894 and the 13th October 1901, and, thirdly, that when the defendant re-excavated the tank in 1916, which up to that time had been used principally, if not almost exclusively, for irrigation purposes, he stopped the water channels so as to make irrigation impossible. The question is whether, upon these findings, which cannot be challenged in second appeal, the contention of the appellant can be maintained in either of its two branches.
3. As regards the first branch of the contention, it is well settled that, although a tenant cannot acquire a prescriptive right of easement in land belonging to his lessor, Mani Chande Chakerbutty v. Eaikanta Nath Biswas 29 C. 363 : 9 C.W.F. 856 and Basavanagudi Narayana Kamathy v. Lingappa Shetty 54 Ind. Cas. 943 : 38 M.L.J. 28 : 26 M.L.T. 439 : 11 L.W. 34 he may claim a right of easement based on immemorial user, as there is no reason why an owner of land should not grant any privilege he pleases to his tenant. The relationship of landlord and tenant does not render inapplicable the principle recognised by the Judicial Committee in Rajrup Koer v. Abul Hossein 7 I.A. 240 : 6 C. 394 : 7 C.L.R. 529 : 4 Shome L.R. 7 : 4 Sar. P.C.J. 199 : 3 Suth P.C.J. 816 : 4 Ind. Jur. 530 : 3 Ind. Dec. (N.S.) 257 (P.C.) namely, when enjoyment of a right of this description 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 an agreement. This view was adopted and applied in the case of Bhupendra Nath v. Armada Prosad 20 Ind. Cas. 597. There, a tank belonging to the landlord was situated in the midst of arable lands, and, as the surroundings indicated, was intended for irrigation rather than for bathing, drinking or culinary purposes. There were openings in the banks and well defined channels running from the tanks to the fields; and it was proved that from time out of memory the tenants had irrigated their lands with water from the tank. It was ruled that the inference could legitimately be drawn that the tenants had acquired an easement to irrigate their lands with water drawn from the tank, under a presumed grant. In support of this view reference was made to the judgment of the Judicial Committee in Ramessur Persad Narain Singh v. Koonj Behary Battuk 6 I.A. 33 : 4 C. 633 : 3 Sar. P.C.J. 856 : 3 Ind. Jur. 179 : 2 Shome L.R. 194 : 2 Ind. Dec. (N.S.) 402 (P.C.) The decision ( of, the Judicial Committee just mentioned had also been invoked, many years earlier and for the same purpose, by Sir Francis Maclean, C.J., in Madhub Dass v. Jogesh Chunder 30 C. 281 and the position is now generally recognised that in this country a tenant can establish his right to irrigate his field from his landlord's tank by proof of open and continuous user from time immemorial. This principle was applied in Babajanv. Ramjaddi Sheikh (4), Krishna Chandra Mandal v. Ram Sahay Khatritari 41 Ind. Cas. 577 : 2 P.L.W. 46 and Bayya Sahu v. Krishnachandra Gajapathy (11); see also Kristna Ayyan v. Vencatachella Mudali 7 M.H.C.R. 60 at p. 64. The case before us is clearly governed by this rule, and the first branch of the contention of the appellant cannot be supported.
4. As regards the second branch of the contention the appellant has invoked the doctrine that a presumption of a grant cannot arise, if the person against whom the right is claimed was ignorant of or incapable of resisting the user; in other words, that no such presumption can be made against a reversioner, if the user has taken place during the occupation of the locus in quo by a tenant. Reference has been made to the decision in Daniel v. North (1809) 11 East 372 : 103 E.R. 1047 where Lord Ellenborough observed: "How can such a presumption be raised against the landlord, without showing that he knew of the fact, when he was not in possession and received no immediate injury from it at the time." This point of view was foreshadowed by Bracton when he said, "but if it (servitude) had been a clandestine seisin, to wit, in the absence of the lords, or whilst they are ignorant, and, if they had known it, they would have been likely to prohibit it, although this Way be done with the consent and dissimulation of the bailiffs this ought not to avail " (Bracton, Book IV, Chapter XXXVII, f. 231 tr. Sir Travers Twiss, Volume III page 475). No such difficulty, however, presents itself, if the user of the easement began before the commencement of the tenancy in the servient tenement. If the user of the easement had actually commenced before the property over which it was claimed passed into the possession of the lessee, the mere fact of the intervention of such tenancy should not be sufficient to defeat the right acquired by the lapse of time unless, indeed, it is further shown that the landlord, up to the time he granted the lease, was in ignorance that any such right was claimed. This view is supported by the decision in Cross v. Lewis (1824) 2 B. & C. 686 : 4 D. & R. 234 : 2 L.J. (O.S.) K.B. 136 : 107 E.R. 538 where Littledale, J., observed: "It was proved that the windows had existed for 38 years and the tenancy for 20. How the land was occupied for 18 years before that time did not appear. I think that quite sufficient to found the presumption of a grant." Both Abbot, C.J., and Bayley, J., laid stress on the fact that the origin of the plaintiffs' right was not traced and the tenancy consequently did not rebut the presumption of a grant. Reference may also be made to the decision of the House of Lords in Morgan v. Fear (1907) A.C. 425 : 76 L.J. Ch. 660 : 97 L.T. 591 where it was held that a right can be acquired by a termor over land held by another termor under the same reversion by virtue of section 3 of the prescription act, 1832. In the case before us, the defendant let out the tank to the tanks only so recently as 1894, and if his story is accepted in its entirety, the tenants were in occupation down to 1915. But the exercise of the right of irrigation by the plaintiffs and their predecessors has been carried back to a period antecedent to the suit by at least half a century, that is, beyond the year 1867. The origin of the tenancy is thus known but the origin of the right of easement has not been traced, and, consequently, the tenancy does not rebut the presumption of a grant which arises upon proof of immemorial user. The second branch of the contention of the appellant is, therefore, as untenable as the first.
5. As regards the cross-objection of the plaintiffs, the Subordinate Judge has found that they were, down to the year 1902, in enjoyment of a right of easement founded on immemorial user. The question in "controversy is, whether such right was in existence at the time when the defendant re-excavated the tank in 1916 and estopped the use of the water for irrigation purposes. It appears that the field in schedule 'ga' was held by a tenant Rasik Malik at an annual rent of Rs. 24-8-0. The tenant defaulted, with the result that the defendant sued him in 1899 and obtained a decree for arrears of rent. The decree was executed in due course, and in 1902, the defendant as decree-holder purchased the holding. He obtained symbolical possession through Court and, consequently, the tenant continued in actual occupation as before. On the 9th March 1905, Nibaran Malik, the son of the original tenant: who had died meanwhile, executed a Kabuliyat in favour of the landlord, which recited that the previous rent of Rs. 24-8-0 was raised by Rs. 7-8-0 so as to make the new rent Rs. 32. Notwithstanding the execution sale and purchase by the landlord, the tenant thus continued undisturbed in occupation and exercised the right of Irrigation, which, indeed, was inevitable if the lands were to be kept under cultivation. In these circumstances, the question arises whether the right of irrigation which was annexed as an easement to the dominant tenement (the field in schedule 'ga') was extinguished when the landlord purchased the tenancy at the execution-sale. The Subordinate Judge has answered the question in the affirmative, and the plaintiffs have urged, consequently, that the right was only suspended temporarily.
6. The principle applicable to cases of this character is beyond dispute. The unity of the dominant and servient estates in the same person extinguishes the easement appurtenant to the dominant estate, for no person can have an easement in land which he himself owns. But unity of title of two estates will not extinguish an easement unless the ownership of the two estates be co-extensive, equal in validity, quality and all other circumstances of right. If one estate is held in fee and the other for a term of years, there is no unity of possession that will extinguish an easement of one estate as against the other; but the unity of possession in such case will only suspend the easement during the time of such unity of possession. Consequently an easement may be revived, after it has been extinguished by the union of the dominant and servient tenements in one owner by their subsequent severance, provided the easement if apparent, continuous and essential to the enjoyment of the dominant tenement. The application of these principles to individual cases is not always easy and one or two illustrations may be usefully re-called. In Thomas v. Thomas (1835) 2 Cr. M. & R. 34 at p. 41 : 41 R.R. 678 : 1 Gale 61 : 5 Tyr 804 : 4 L.J. (N.S.) Ex. 179 150 E.R. Baron Alderson observed:
"If I am seised of freehold premises, and possessed of leasehold premises adjoining and there has formerly been an easement enjoyed by the occupiers of the one as against the occupiers of the other, while the premises are in my hands, the easement is necessarily suspended, but it is not extinguished, because there is no unity of seisin; and if I part with the premises, the right, not being extinguished, will revive."
See also
Whalley v. Tompson (
1799) 1 Bos. & P. 371 at p. 371 at p. 375 :
4 R.R. 826 :
126 E.R. 959, Buckby v. Coles (
1814) 5 Taunt 311 at p. 314 :
15 R.R. 508 :
128 E.R. 709. Again, where the owner in fee of the dominant tenement acquired an outstanding lease in the servient tenement but subsequently parted with the lease it was held in effect in
Simper v. Foley (
1862) 2 J. & H. 555 a p. 563 :
5 L.T. (N.S.) 669 :
134 R.R. 337 :
70 E.R. 1179 that, during the union' of ownership, the easement was not extinguished but only suspended, and that, upon a severance of the ownership, the easement revived; see also
Richardson v. Graham (
1908) 1 K.B. 39 :
77 L.J.K.B. 27 :
98 L.T. 360;
James v. Plant (1836) 4 A. & E. 7409 :
43 R.R. 465 :
6 N. &. M. 282 :
6 L.J. (N.S.) Ex. 260 :
111 E.R. 967. The substance of the matter is that if there has been unity of possession merely and not unity of seisin for estates in fee simple, and easement which has been thereby suspended will revive on severance of the union; but if there has been unity of seisin for estates in fee simple and not unity of possession merely, all easements are absolutely extinguished and will not revive, unless they are re-created on severance of the former dominant and servient estates; see Langley v. Hammond (
1868) 3 Ex. 161 at p. 178 :
37 L.J. Ex. 118 :
18 L.T. 858 :
16 W.R. 937 and
Section 46 of the Indian Easements Act. In the case before us, though there was an execution-sale of the tenancy and a purchase by the landlord, the tenant continued in occupation in the undisturbed enjoyment of the right of irrigation, and the only visible result of the sale was that the rent was enhanced by a substantial sum. In such circumstances, it is reasonable to hold that the right of irrigation was not extinguished, but rather momentarily suspended and revived; see
Kristna Ayyan v. Vencatachella Mudali 7 M.H.C.R. 60 at p. 64 and
Kandhanath v. Chemboli Valia Veetil 16 Ind. Cas. 375 : (1913) M.W.N. 95. In this view, the cross-objection must succeed.
7. The result is, that the appeal is dismissed and the cross-objection allowed. The decree of the Subordinate Judge is modified so that the plaintiffs may have relief in respect of the 'ga' land in addition to the 'kha' land. The defendant will pay the plaintiffs their costs in all the Courts. A self-contained decree will be drawn up in supersession of the decree of the lower Appellate Court.