John Wallis, C.J.
1. There is not much difference, if any, between the facts as found by the learned Judge and by my learned brother whose judgment I have had the advantage of reading, and the only question is as to the proper inference arising from these facts with reference to the plaintiffs' claim to the tank water by prescription as pleaded in paragraphs 16 and 17 of the plaint. If we take into account only the fact that the water has been brought from tank B, which is on land purchased by the defendants' ancestors to A, which consists of plots purchased by the ancestors of the plaintiffs and defendants and the fact that all the plots were cultivated jointly, it may be said that the fact that the defendants used their water from tank B in raising betel jointly with the plaintiffs sometimes on portions of A purchased by the defendants' ancestors and sometimes on portions purchased by the plaintiffs' ancestors only amounts to a user by the defendants of their own water for their own purposes, even though that cultivation was being carried on by them jointly with the plaintiffs, and should not raise any presumption of right to the use of the water by the plaintiffs. This would appear to be the view taken by the learned Judge who tried this case.
2. On the other hand, the user of the plaintiffs may be presumed to be as of right and to have a lawful origin and if a lawful origin of the plaintiffs' right can be suggested, such an origin may be presumed. Here we have the fact that the land on which the tank and channel were excavated was purchased by Murugappa Mudaly, who is described in the sale-deed as one of the Thottam or garden Mudaliars, a description which includes the plaintiffs, whereas in the sale-deed of portions of the plot A purchased by him shortly afterwards the description is omitted. This suggests that sites B and G may have been purchased by him on behalf of all the families of both the plaintiffs and defendants who were about to embark on betel cultivation on plot A and that the tank and the channel may have been excavated by them. Then we have the fact that the channel D, by which the water from B and C is brought on to the land A, bears the name of Muthia Mudaly, who was an ancestor of 7th and 8th defendants who claim jointly with the plaintiffs and not of defendants Nos. 1 to 6 who dispute their claim, and may possibly have been constructed on behalf of both the plaintiffs and defendants. Then we have the Will of Muthiah Mudaly by which he purported to bequeath certain shares in the land A and the tank B, which is clearly the assertion of claim to share in the water of the tank B as of right. Then there is evidence that the plots in A purchased in the name of the plaintiffs' and defendants' ancestors have been so completely thrown into one that the boundaries of the different plots are no longer distinguishable and that the suit of one of the parties for the recovery of his particular plot was dismissed, on the ground that it was not possible to identify it in view of the fact that all the separate plots had been thrown into one.
3. The evidence as to the payment of quit-rent for the tank B and the enjoyment of the produce of the trees on B is conflicting, as some of the plaintiffs' witnesses say the quit-rent was paid by the headman for the time being and that the produce of the trees was enjoyed by the co-sharers according to their shares. On the other hand, defence witness No. 1 denies this and produces a bundle of quit-rent receipts, but he is 'an unreliable witness and the receipts do not show by whom the quit-rent was actually paid before the disputes which gave rise to this litigation.
4. On the whole, I think there is sufficient evidence that the plaintiffs are entitled to share in the water of the tank B with the defendants in the proportion of their shares in the common cultivation formerly carried on in plot A. I would, therefore, allow the appeal and give a decree in the terms of prayers (a) and (b) and that an enquiry be directed as to prayer (g). The appeal is allowed with costs in this Court.
Phillips, J.
5. Plaintiffs and defendants are owners of a plot of land marked A in the plan, and admittedly they have been using the water of the tank B for irrigating that land. According to plaintiffs, such irrigation began about 1812, when plot A was purchased, and defendants admit the use of the water since 1839. The water from B passes along a channel 0 and then into a public channel F, and from there through a channel D to plot A. Defendants allege that the user of the water by-plaintiffs was permissive, whereas plaintiffs claim it as of right. The land on which the tank B and the channel G have been excavated was purchased in 1812 in the name of Murugappa of the Thottam Mudaliars,' a description which would apply to all the parties to this suit. Murugappa was an ancestor of defendants Nos. 1 to 6. In 1814 the ancestors of plaintiffs and defendants bought 7 plots of land and in 1816 one plot (Exhibits A--H) and these 8 plots form plot A. Admittedly these 8 plots were cultivated jointly by all the parties, and it is now impossible to identify the various plots on the ground, although each owner is entitled to a certain definite but unascertained share. There is no evidence to show in whose name the land on which channel D is dug was purchased, but Exhibit P, a document executed by 1st defendant in 1886, recites that plot A belongs to Muthiah Mudaly (an ancestor of defendants Nos. 7 and 8 and headman- after Murugappa) and others, and gives the same owner for the channel D. First defendant also admits that channel D is called Muthiah Mudali's channel and Muthiah Mudali leaves two shares in the tank and channel by his Will, Exhibit Q. There is no evidence to show when B and G were dug, but it is sufficient that the sale-deed for that land stands in the name of Murugappa of the Thottam Mudaliars whereas the sale-deed for a portion of plot A (Exhibit B) stands in the name of Murugappa himself. This fact as well as the fact that channel D through which the water must pass to A coupled with the recital in Exhibit Q lend support to plaintiffs' case that the tank water belonged to them and the defendants jointly, and it is quite clear that plaintiffs owned, or had at least a share in, channel I). We must take it then that for at least sixty years plaintiffs and defendants have been taking water from tank B for the purpose of cultivating their plot A. Even assuming, as the learned Judge has done, that the land on which B and 0 were dug belonged originally to 1st to 6th defendants' ancestor, there is no evidence to show that the excavation was done by him or at his costs, or that the water of the tank belonged to him exclusively. I may here say that I agree with the learned Judge that the specific agreements set up by plaintiffs and defendants, respectively, i.e., Exhibits W and IX, are of no value, and were probably brought into existence after these disputes arose. There is thus no evidence, beyond 1st defendant's mere word, that plaintiffs have ever paid anything to defendants for the use of the water. The position, therefore, is this; plaintiffs have for 60 or 80 years been taking water from tank B to their land in A through channels G and D. Tank B and channel C are on land purchased in 1st to 6th defendants ancestor's name, and channel D belongs, at least in part, to plaintiffs. In these circumstances what is the presumption? The learned Judge has found that plaintiffs have been using the water by permission of the defendants, but with all respect I am unable to see that there is any evidence of permission, if the agreement Exhibit IX is excluded, and' such permission, if any, can only be inferred from the facts of the case. In Philips v. Halliday (1891) A.C. 228 : 61 L.J. Q.B. 210 the presumption from long-continued possession in assertion of a right was laid down by Lord Herschell as follows: 'it is a well-settled principle of English Law that the right should be presumed to have had a legal origin if such a legal origin was possible, and that the Courts will presume that those acts were done and those circumstances existed which were necessary to the creation of a valid title.' In Gale's Work on Easements (page 204) we also find the rule laid down that when user is proved, the presumption is that it is of right until the contrary is shown. No doubt it was remarked by Banerjee, J. Shaikh Khoda Buksh v. Shaikh Tajuddin 8 C.W.N. 359 that in this country it would not be right to draw the same inference from user as in England, but his remarks had a reference to a right of way, in respect of which I agree that the observation has considerable force; but rights to water stand on a different footing for in this country they are very highly valued, and a license for the use of water gratis is by no means common. I, therefore, see no reason why the presumption of English Law should not be applied. The question as to whether user was of right' as required in the Easements Act was considered in Gardner v. Hodgson's Kingston Brewery Company Ltd. (1903) A.C. 229 : 72 L.J. Ch. 558 : 52 W.R. 17 where an owner had enjoyed a right of way over a yard for over 40 years, paying annually Rs, 15 to the owners of the yard. It was held by the Court of Appeal that plaintiff's right had not been established, the reason which influenced the Court being the annual payment of Rs. 15. In fact Lord Ashbourne goes so far as to say that the case would be perfectly clear in favour of plaintiff but for the payment of Rs. 15. It was held that the payment of Rs. 15 negatived the case which had to be made out in order to prove prescriptive title, i.e., that the enjoyment was inconsistent with any other inference than that it had been as of right, there being a second reasonable inference, i. e., that the employment was by license. It would appear, therefore, that if there has been long-continued user and the enjoyment is inconsistent with any other inference than that it had been as of right, the Courts in England will infer a title by prescription. There appears to be no substantial difference between the language of the English Prescription Act and the Indian Easements Act, and, therefore, the same would appear to be the law in this country. Applying this principle to the present case the plaintiffs would appear to have acquired a prescriptive title to the water of the tank for, on the facts established, their long user is inconsistent with any other inference than that it has been of right.
6. A further objection is raised on behalf of respondents that the right prescribed for by plaintiffs cannot be definitely specified. In the plaint the right set out is to take water jointly with defendants for the irrigation of the crops jointly raised by them in plot A; and now defendants are unwilling to cultivate jointly with plaintiffs. It is, therefore, contended that plaintiffs' right, which only ha3 reference to joint cultivation, has ceased with the cessation of joint cultivation. I may observe that this point does not appear to have been raised in the original trial, but the underlying fallacy of this Contention is apparent. The right that plaintiffs have, they have as part owners of the dominant heritage A over the servient heritage B, and not by virtue of cultivating jointly with defendants and the user alleged in paragraph 11 of the plaint was one in accordance with an agreement which has been found to be untrue. The prescriptive right claimed in paragraph 17 has not been limited in the same manner and though its exact extent has not been specified in the plaint, it can be ascertained from the materials before us. In the past, plaintiffs have exercised their right conjointly with defendants, but this joint user does not affect the nature of the right, which is really a right over the servient heritage acquired by them by virtue of their ownership of plot A. Plaintiffs and defendants have been enjoying the lands as tenants-in-common; the respective shares in the right possessed by plaintiffs and defendants can be ascertained on partition. So long as the combined shares do not exceed the total right heretofore enjoyed, the servient owner has no ground of complaint. The right that has been prescribed for is not merely a right to irrigate jointly with defendants, but a right as part owners of a dominant heritage, and as regards this right, they are entitled to a declaration, I, therefore, agree in the order proposed.