Renupada Mukherjee, J.

1. This appeal arises out of a suit instituted by the twoPlaintiffs-Respondents for declaration of their easement right of irrigatingcertain lands in a particular manner and for compelling the Defendants toremove some obstructions which had been placed in C.S. plot No. 610 impedingthe passage of water from an irrigation tank to the lands of the Plaintiffs.

2. The suit was contested only by Defendant No. 1, whodenied the right of irrigation claimed by the Plaintiffs and contended thatthere was no drain for passage of water as claimed by the Plaintiffs and thathe had not obstructed the course of any such drain. The suit of the Plaintiffswas dismissed by the trial court, which held that the Plaintiffs had not gotthe right of irrigation which was claimed by them. The Plaintiffs preferred anappeal and the lower appellate court allowed the appeal and decreed the suit ofthe Plaintiffs making a declaration that they had got an easement right ofirrigating their lands by flowing water through a channel or drain described inthe plaint. The Defendants were directed to restore this drain to its formercondition. This second appeal has been preferred by the Defendant No. 1 fromthe above judgment and decree of the lower appellate court.

3. In order to understand clearly the point in controversyit would be necessary to state the, following facts. The settlement map of thelocality would show that there is a tank which has been surveyed in C.S. plotNo. 514, which goes by the name of Barabundh. The Plaintiffs-Respondents havegot several culture- able plots at some distance to the south of the tank.These plots bear C.S. dags Nos. 600, 605 and 606 of Mouzd Kukribasa. In betweenthe tank of C.S. plot No. 514 and the last mentioned plots of thePlaintiffs-Respondents there are several C.S. dags, including dag No. 610,which admittedly belongs to the Appellant of this appeal. The case of thePlaintiffs-Respondents was that there is a well denned channel or drain fromthe above mentioned tank leading up to their land and this drain passes througha portion of C.S. dag No. 610. The Plaintiffs case further was that theybailed out water of the above tank and carried it to their plots through theabove channel for the purpose of irrigating the plots, but the principalDefendants obstructed this channel particularly where it passes through C.S.plot No. 610. It appears from the plaint that the Plaintiffs-Respondentsclaimed the right of irrigation of their lands not only by bailing out waterfrom the tank in C.S. dag No. 514 but also by means of surplus rain water ofthe locality which flowed through the above mentioned drain or artificialchannel. This right of the Plaintiffs-Respondents was totally denied by theAppellant. I have already stated that the suit of the Plaintiffs was dismissedby the trial court but the decree was reversed on appeal.

4. As I understood the pleadings of the parties and also inview of the evidence adduced by the parties in the trial court. I think thatthe right claimed by the Plaintiffs Respondents was really a prescriptive rightfounded upon the user of the water of the tank in C.S. plot No. 514 for upwardsof 20 years by bailing out the same through the channel or drain, a part ofwhich is said to have been obstructed by the principal Defendants. This was themain right which was claimed by the Plaintiffs in the trial court. There is ofcourse, another statement that the surplus or overflow water of the surroundinglands used to pass through this drain to the plots of the Plaintiffs becausethe lie of the field is that the field gradually slopes from the north to thesouth. In my opinion, the Plaintiffs claim to have the surplus water of thefield through the drain in question is only a subsidiary claim, the main claimbeing the right if irrigating his plots by bailing out water from the tankcalled Batabundh through the drain or channel mentioned in the plaint.

5. The suit of the Plaintiffs-Respondents was dismissed bythe trial court mainly on the ground that the Plaintiffs, who are lowerheritors, cannot claim the surplus water of the upper region as a matter ofright. The lower appellate court seems to be of opinion that there was aconfusion in the mind of the trial court as to the nature of the right claimedby the Plaintiffs. After Mr. Mukherjee had placed the judgment of both thecourts before me, I am of opinion that there is a good deal of substance inthis observation of the lower appellate court. I have already said that themain right claimed by the Plaintiffs-Respondents was the right of irrigatinghis fields from the water of the tank surveyed in C.S. dag No. 514 by bailingit out and causing it to flow through a well-defined channel or an artificialdrain. Such a right can be founded upon easement. It was the definite case ofthe Plaintiffs- Respondents that water from the tank in question had beenbailed out by them in this manner for upwards of 20 years prior to theobstruction of the drain by the principal Defendants. Upon an examination ofthe evidence on record, the lower appellate court held that this allegation ofthe Plaintiffs-Respondents had been substantiated.

6. Mr. Mukherjee, appearing on behalf of the Appellant,submitted before me in the first place, that the Plaintiffs lands constituteda servient tenement being situated at a lower level and so they did not acquireany right to insist on the continuance of discharge of the surplus rain waterfrom the upper region to the lower. In support of this contention Mr. Mukherjeerelied on two cases, one of which is Aftab Choudhury and Ors. v. Asokhadeen(1913) 18 C.L.J. 131 and another Bimalanand Chakravarti and Ors. v. ChandraKant Chakravarti (1913) 19 C.L.J. 40. In my opinion, the facts of this case arecompletely different from the facts of the above mentioned cases, because inthose cases what was claimed by the Plaintiffs was a right to overflow wateronly When such a right is claimed by the owner of a land of lower level, theland of the higher level must be regarded as a dominant tenement. Needless tosay that the owner of a servient tenement does not acquire any right as againstthe owner of the dominant tenement to continue the discharge of surplus rainwater. In this case, as I have already said, surplus water of the rainy seasonis claimed only by way of a subsidiary claim. The main claim put forth by thePlaintiffs-Respondents is the right to bail out water of the tank in C.S. plotNo. 514 through the disputed drain for the purpose of reaching the water totheir plots for irrigating them. That drain passes through the lands of severalpersons including C.S. dag No. 610, which belongs to the Appellant. If thePlaintiffs-Respondents have really got any right to take the water of the tankin this manner, than C.S.. plot No. 610 must be regarded as a servient tenementin reject of the Plaintiffs plots and not as a dominant tenement. That beingthe case, the right claimed by the Plaintiffs-Respondents in this suit iscapable of being acquired by prescriptive user and as the lower appellate courthas found as a matter of fact that such right of irrigation has been exercisedand enjoyed for a period of more than 20 years, the right has been perfected byprescription and the Appellant has no right to obstruct that part of the drainwhich runs through his land, because such obstruction would mean aninterference with the right of the Plaintiffs-Respondents. The first contentionput forth by Mr. Mukherjee on behalf of the Appellant must fail.

7. The second and the only other contention put forth by Mr.Mukherjee was that in this case the drain is an artificial channel and thePlaintiffs-Respondents can claim the water of such a drain or channel only bygrant or some arrangement and not by prescription. In support of thiscontention Mr. Mukherjee relied on the case Rameshur Pershad Narais Singh v.Koonj Behari Pathuk and Ors. : (1878) L.R. 6 I.A. 33 I am ofopinion that the present case is not in any way covered by that decisionbecause that case deals with a right to the enjoyment of water overflowing froman artificial reservoir through an artificial water course on the land of aneighbour who was the Defendant in the suit. The facts of the preset case casecan "easily be differentiated from the facts of that case, because herethe Plaintiffs-Respondents are not claiming any right to get the water flowingthrough the drain, but they are claiming a right to irrigate their lands bymeans of water which is to be bailed out from a tank which is an irrigationtank. Of course, that water is to be flowed through the disputed drain orchannel. That is not. however, tantamount to say that thePlaintiffs-Respondents are claiming the overflow water flowing through thechannel. This right is somewhat akin to a right of passage over some particularpathway. If such a right were incapable of being claimed save on the basis ofgrant or arrangement, then it would have been not only difficult but almostimpossible to irrigate agricultural lands in West Bengal villages in the mannerin -which they have been being irrigated from time immemorial. If theprinciples followed in the Privy Council case were to be extended to caseswhere a right of irrigation is claimed by a particular cultivator from someirrigation tank, then the inevitable result would be that only those personswho have got their lands on the border of the tank would be able to irrigatetheir lands and the cultivators possessing lands further off would be easilyprevented from irrigating their lands by the persons possessing interveninglands. I, therefore, hold that the facts of the Privy Council case have got noapplication to the facts of the present case and as the Plaintiffs-Respondentsare not really claiming any overflow water of any artificial channel but areclaiming a right of irrigating their lands by taking out water from anirrigation tank through a well-defined channel, I am of opinion, that such aright is capable of acquisition by prescriptive user. As the lower appellate courthas held that the Plaintiffs have succeeded in proving the user of the water ofthe tank in C.S. dag No. 514 in this manner for a period of more than 20 years.I am of opinion that a decree has been correctly passed in favour of thePlaintiffs-Respondents. The direction of the lower appellate court that thedrain must be restored to its former condition by the Defendants is a properdirection and it does not call for interference. It may be that thePlaintiffs-Respondents would be able to enjoy the surplus rain water throughthis drain without possessing any such right if the drain is restored to itsformer condition, but that would not be any ground for allowing the Appellantto fill up or otherwise obstruct the drain which would necessarily mean an interferencewith the right of the Plaintiffs- Respondents to irrigate their lands from thewater of C.S. plot No. 514.

8. Mr. Mukherjee, on behalf of the Appellant, submitted as alast resort that the case should be remanded to the trial court inasmuch as allmaterial issues were not properly considered by that court. There is no groundfor allowing this prayer, because evidence was fully gone into by the partiesand a mis-appreciation of the real case of the parties by the trial court wouldnot justify a remand. All the contentions urged on behalf of the Appellanthaving failed this appeal is dismissed with costs to the Plaintiffs-Respondents.

9. The disputed drain must be restored to its formercondition by the principal Defendants, including the Appellant, within twomonths of this date.

10. Leave to file an appeal under Clause 15 of the LettersPatent is asked for and refused.

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Ramanuj Kundu vs.Baranashi Dutta (22.07.1957 - CALHC)