1. The parties to this litigation are neighbours. Thedefendants own a tank at the edge of which the plaintiffs house is situated.The plaintiffs brought two suits, one for recovery of possession of a strip ofland on the bank of the tank and the second for a declaration that they had aright of easement to use the water of the tank by a ghat situated at thesouth-east corner. Both the suits were decreed by the first Court and thedecision of the first Court was upheld by the Appellate Court.

2. In the present appeal, we are concerned only with thesuit which asked for the declaration as to the right of easement, the othersuit being concluded by the findings of fact. The Subordinate Judge has foundas a fact that the use of the ghat in question was enjoyed openly as of rightfor a period of over 20 years.

3. The first ground taken on appeal is that the learnedSubordinate Judge has misplaced the onus. The passage objected to isthis:--"The ghat was enjoyed openly and there is no evidence on the otherside to show that there was any interruption and as their possession is notsaid to be permissive, it must have been out of right." It is objectedthat here the Subordinate Judge has placed the onus on the defendants ofproving that the use of the ghat was permissive, and reliance has been placedon the case of Shaikh Khoda Buksh v. Shaikh Tajuddin : 8 C.W.N.359, No doubt, that case is an authority for the proposition that in a suitunder section 26 of the Limitation Act, the onus would be on the plaintiff toprove that the user was as of right. But, as the case quoted shows, thepresumption to be drawn from user must always be a question of fact dependingon the circumstances of each case. In the case before us, the defendants intheir written statement said that the plaintiffs had never used this ghat. Nowthat user for 20 years has been found against them. They wish to take up theinconsistent position that this user has been permissive. In the circumstances,we are of opinion that the Subordinate Judge was perfectly justified in sayingthat the user of this ghat must have been as of right. The first ground taken,therefore, fails.

4. The second objection urged is that the effect of thedecree is to prevent the defendants from filling up the tank. As to the rightof filling up the tank, we express no opinion; for it appears that the issuewhich dealt with the question of filling up or obstructing the ghat was notpressed, as there had been no obstruction. The decree of the Munsif as itstands goes beyond the relief that was asked for, and the findings of the lowerCourt. On behalf of the respondents, the request that there should be anamendment of the decree is not opposed.

5. The decree will, therefore, be amended in this way,namely, that the plaintiffs will be declared to have a right of easement to usethe ghat for the purpose of drawing water from the tank for the purposesmentioned in the plaint. A decree to this effect will be substituted for thedecree of the lower Court. Subject to this modification, the appeal isdismissed.

6. The respondents are entitled to their costs in allCourts.

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Rameshur Mitra vs.Nut Behari Guin (18.03.1913 - CALHC)