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Appeal from Appellate Decree No. 35 of 1‑961, decided on 3rd June 1966.

‑Act adapted and made applicable to whole of Pakistan by Adaptation of Central Acts and Ordinances Order, 1949‑Date of enforcement fixed by Act itself to be 1st of July 1882‑Expression "any right acquired, or arising out of a relation created before this Act comes into force"‑Refers to period prior to 1‑7‑1882‑Interpreta tion of statutes‑"Local extent" and "commencement" of ‑law‑Different concepts.

Observation in Aghore Bandhu Guha v. Mukul Kumar Roy P L D 1959 Dacca 891, held, made through inadvertence.

‑Prescriptive easement--- Customary right and right of easement acquired by prescription‑‑ Distinction ‑Presumption of "lost grant"‑When available.

A customary right is a right of a kind which is different from an easement acquired by prescription.

Harisadhari v. Radhika Prasad 66 C J J 270 ref.

The presumption of a lost grant is not available merely upon establishment of user for a period of twenty years or more. The most important thing to be considered is, whether the situa tion itself raises a presumption of a grant. This is the most important aspect of the situation. To raise the presumption, there must have been grant, which is presumed to have been lost in course of time. What such a course of time or period should be, is a matter which must depend on the facts and circumstances of each individual case:

Annapurna v. Santosh Kumar Sett A I R 1937 Cal. 661 ref.

Prescriptive easement‑Limitation‑Section 15, Easements Act, being special provision of special Act, prevails over general provisions of Limitation Act, 1908‑Interpretation of statutes.

Abu Hussain Sarker for Appellants.

Fazlul Karim for Respondents.

This appeal raises some very interesting points and has had a chequered career. A suit was instituted by plaintiffs in October 1950, and it was numbered as O. C. Suit No: 116 of 1953. Plaintiffs' case, in substance, is, that there existed a breach in an ail, which is a boundary line dividing defendants' land from that of plaintiffs. Through that breach water used to come during rainy season to a, tank of the plaintiffs. For a very long time the said breach existed and during rainy season water used to flow into the tank of the plaintiffs bringing fish along with it. The suit was tried and fought to a second appeal in this Court and was eventually sent back for retrial to the Trial Court. In the Trial Court several witnesses were examined on behalf of the plaintiffs and one was examined on behalf of the defendants and certain documents were put in by both the parties.

Learned Munsif, on a discussion of the evidence, disbelieved the evidence led on behalf of the plaintiffs on the ground that it was improbable that an ail, which was a boundary line, should be kept unrepaired for a long time and that a breach therein should have continued to exist all these years. The purpose of an ail or a boundary line is to demarcate the area of the two adjacent lands. The learned Munsif was of opinion that the plaintiffs had come to Court with an improbable story. He held that the plaintiffs' witnesses did not come with a credible story and described them as over enthusiastic. He also considered certain other circumstances of the case and some documents. He came to the conclusion that a right to an uninterrupted flow of water had not been established by the plaintiffs. The suit was, therefore, dismissed.

Against the judgment and decree passed by the learned Munsif plaintiffs preferred an appeal, which was heard and disposed of by an Additional District Judge of Rangpur. The learned Additional District Judge, on a consideration of the evidence adduced by the parties to the suit, accepted the evidence that was led on behalf of the plaintiffs. He found that plaintiffs had succeeded in establishing that they had, acquired a right in the nature of an easement over the defendants' land by a lost grant. He, therefore, allowed the appeal and reversed the findings arrived at by the learned Munsif and decreed the suit. Hence this appeal.

At the hearing of the appeal, I was taken through the judgments pronounced by the Courts below. Mr. Abu Hussain Sarker appearing on behalf of the appellants, has advanced a number of arguments, which were not considered by the Appellate Court below. His contention is that the Appellate Court below did not apply its mind to the question whether the plaintiffs' suit was hit by the provisions of section 15 of the Easements Act. In view of the order, that I propose to make in this case, I would simply indicate the points for their final decision so as not to cause any prejudice to the parties. I would only say that this point is a pertinent one, which requires investigation.

My attention was drawn to a decision by a Division Bench of this Court in the case of Aghore Bandhu Guha v. Mukul Kumar Roy (P L D 1959 Dacca 891) in which it was held that the Easements Act was not appli cable to Pakistan. This observation has been made through inadvertence, presumably, because the attention of the Court was not drawn to the following circumstances:

The Easements Act of 1882 was made applicable to Pakistan by the Adaptation of Central Acts and Ordinances Order, 1949, known as No. G. G. O. 4, published in the Gazette of Pakistan on the 29th of April, 1949. Clause 75 of the said order reads as follows:

"The Indian Easements Act, 1882 (V of 1882):

Section 1‑In the short title omit Indian':

and omit the second paragraph enacting the extent."

It has been, therefore‑rightly contended that the Easements Act was adapted and made applicable to the whole of Pakistan ever since the 29th of April 1949. Mr. Abu Hussain Sarker has pointed out that the Easements Act has also kept alive some other rights, which came into existence prior to the coming into force of the Easements Act, 1882.

The next question is, when did the Act come into force Section 1 of the Easements Act reads as follows:

". . . it shall come into force on the first day of July, 1882."

It follows that although the application of the Act was confined to certain limited territories and that it was not applied to Pakistan prior to the 29th of April 1949, it had come into force on the 1st of July 1882. The expression in clause (c) of section 21 of the Act, which reads thus:

"any right acquired, or arising out of a relation created before this Act comes into force."

must, of necessity, mean any right acquired before the 1st day of July 1882. Mr. Sarker has, therefore, contended that the concept of the local extent of the application of law is different from the concept of its coming into force on the 1st day of July, 1882.

I hold that with regard to the Easements Act, 1882, its coming into force is specifically mentioned as the 1st day of July 1882, and, therefore, that is the date fixed by the statute itself as the day when the Act came into force. Its territorial application is an altogether different matter. Therefore, clause (c) of section 2 of the Act must have reference to the period prior to the 1st day of July 1882. It is nobody's case that any right for reception of water through a breach in the said ail is claimed to have been acquired by the plaintiffs prior to the 1st of July 1882. Therefore, the plaintiffs must establish a right by grant or a customary right or a right of prescriptive easement within the meaning of section 15 of the Act. A customary right is a right of ' a kind t which is different from an easement acquired by prescription (Seel Harisadhan v. Radhika Prasad (66 C J J 270) ).

I would like to say that sitting in a single Bench I have myself sent back the case to the trial Court to find whether any right is established by lost grant. I was not aware at that time that the Easements Act of 1882 bad already been made applicable to the whole of Pakistan as stated above. Therefore, the evidence led by the parties calls for a re‑examination whether any title can be claimed by lost grant. I am expressing no final opinion on the question, at this moment.

I would, however like to point out one aspect of the case, namely, that the presumption of a lost grant is not available merely upon establishment of user for a period of twenty years or more. The most important thing to be considered is, whether the situation itself raises a presumption of a grant. This is the most important aspect of the situation. To raise the presumption; there must have been grant, which is presumed to have been lost in course of time. What such a course of time or period should be, is a matter which must depend on the facts and circumstances of each individual case (See Annapurna v. Santosh Kumar Sett (A I R 1937 Cal. 661)). This imposes a heavy onus on the plaintiffs.

It further transpires that the 'Appellate Court below has failed to understand the reasons upon which the trial Court had rejected plaintiffs' evidence. The trial Court had rejected such evidence mainly because of the improbability of the story sought to be made out by the plaintiffs. The learned Additional District Judge seems to have thought that the trial Court brushed aside the plaintiffs' evidence merely on the ground that the witnesses produced by plaintiffs were over enthusiastic. The learned Appellate Court below has thus misunderstood the judgment pronounced by the trial Court.

Lastly, Mr. Abu Hussain Sarker has raised a question of limitation. He has drawn my attention to section 15 of the Easements Act. Referring to section 29 of the Limitation Act, he has re‑inforced his argument that section 15 of the Easements Act, being special provisions of a special Act, will prevail over the general provisions of the Limitation Act. This is so. But one has to see whether the terms of section 15 of the. Easements Act are applicable to the kind of situation which arises in this case. The situation can be fully assessed after a proper appraisal of the evidence in this case.

For reasons stated above, I allow the appeal and set aside the judgment and decree of the Appellate Court below. It is directed that this case be sent back on remand to the Appellate Court below for a re‑hearing of the appeal and its disposal in accordance with law on all the points raised in the appeal, with particular reference to the points that have been indicated above. There will be no order as to costs of this appeal.

Let the records of this case be sent down to the Appellate Court below with the utmost expedition. The Appellate Court below is also directed to dispose of the appeal as early as possible.

S. Q.

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