H.W. Dhabe. J.
1. This is a second appeal preferred by the defendants against the concurrent judgments of the courts below.
2. The plaintiff, who is the respondent in this appeal, filed a suit for permanent injunction that he has a right to receive water to his Bodi (tank) in Khasara No. 515 flowing by the Pat (water channel) shown by letters .. in the plaint map (Exh. 45) and that the defendants should be permanently restrained from obstructing the flow of the water and from taking the water from the water channel shown in the suit map .He also claimed damages to the extent of Rs. 2,215.63 nps. on account of the loss sustained by him in the yield of his crops.
3. The facts are that the plaintiff is the owner of the suit fields Survey Numbers 515 and 536 in village Bagheda Garra, Tahsil and district Bhandara Survey Number 515 is a tank from which the plaintiff takes water to irrigate his field Survey No. 536. The defendant No. 1 is the owner of the field Survey Numbers 520/2, 520/3, 522, 523 and 524 which are shown in the suit map. Survey Number 452 is the road which is also shown in the suit map. Survey No. 520/1 is a banzar land belonging to the State. The plaintiff has shown in the suit map (Exh. 45) the water channel flowing from the point .., which is adjoining the road i.e. Survey Number 452 and below the field Survey Number 520/4 and passing from the southern side of the field Survey Nos. 524, 522, 520/3, 524, 525/1, 526, 529/2 and from the southern side of the field Survey Nos. 527 and thereafter going into the tank of the plaintiff at Survey No. 515. Thus, according to the plaintiff the tank Survey Number 515 is filled by the water flowing from this channel. It is further his case that the water which flows into this water channel is the water from the road Kh. No. 452, the banzar lands of the Government i.e. Survey Number 520/1 and Khasara Number 520/2 of the defendant No. 1. It may be stated that the defendant No. 1 has also a tank in the field Survey Number 522 shown by letters A, B, C & D which according to him is filled in by the surface water coming from Survey No. 452, field Survey No. 520/2 and Survey Number 520/1 i.e. the banzar land of the Government. According to the plaintiff, he has a prescriptive right to take the water from this water channel which he has been taking for the last more than 60 years. He also claims the right on the basis of 'Natural Easement Right, as also a right on the basis of a 'Lost Grant' because according to him, at some point of time, the Malguzar of the village was cultivating his field by the water from this water course, which after abolition of the Malguzari would be a grant to him.
4. The cause of action for filing the suit arose according to the plaintiff, in the year 1968 when the defendants broke his Pat at three places on the dhura of the field Khasara Numbers 523 and 524 shown by letters and in the plaint map for taking water for their paddy crop. Because plaintiff, his Bodi in Khasara No. 515 was not filled thereby causing loss of his paddy crops in Khasara No. 536. It is, therefore, his case that he has suffered a loss in the yield of paddy crop to the extent of Rs. 2,215.62 paise. He has, therefore, filed the instant suit for a declaration of his right to receive water from the water channel and for injunction permanently restraining the defendants from disturbing or obstructing the said right. He has also claimed damage of Rs. 2215.62 nps.
5. The defendants resisted the claim of the plaintiff by their written statement. They denied that they had caused any breaches to the water channel and that the tank of the plaintiff in Kh. No. 515 was filled in by the water from this water channel only.
6. The learned trial Court framed necessary issues on the pleadings of the parties and on the basis of the evidence led by the parties and the material on record, held that there is a defined water channel shown by letters commencing from the road Survey No. 452 and going from the southern side of some of the fields of the defendants ultimately in the tank of the plaintiff in Khasara No. 515. He also held that the water channel is a defined water channel in which the water is filled by the surface water falling on the road Khasara Number 452, the banzar land of the Government Khasara Number 520/1, and the Khasara Number 520/2 of the defendants. He further held that the plaintiff has a prescriptive right to take water from this defined water channel in to his tank in Survey Number 515 and use the same for cultivating his field Survey Number 536. He also found that the defendant No. 1 has breached this water channel at places shown by letters and in the plaint map and has thus deprived the plaintiff of the use of the said water from his water channel, which has adversely affected his paddy crop. He, therefore, granted declaration, permanent injunction and also the claims for damages as prayed for by the plaintiff.
7. The defendants challenged the judgment and decree of the learned trial court by filing an appeal in the District Court, Bhandara. The learned Assistant Judge, Bhandara, who heard the appeal, by the judgment dated 8-10-1973 affirmed the judgment and decree of the learned trial Court. Being aggrieved, the defendants have preferred the instant appeal in this Court.
8. The first contention urged on behalf of the defendants in this appeal is that in view of the provisions of section 17(c) of the Indian Easements Act, 1882 (for short, the Act) no prescriptive right can be claimed by the plaintiff in regard to the surface water flowing from the road survey number 452, banzar land survey number 520/1 and the field survey number 520/2 of the defendant. The provisions of Clause (c) of section 17 of the Act are as follows:
None of the following rights can be so acquired:
'(c) a right to surface water not flowing in stream and not permanently collected in a pool, tank or otherwise...'
It is urged on behalf of the defendants that the surface water from the above field survey number does not flow in a 'stream' as required by Clause (c) of section 17. According to the learned Counsel for the defendants, there is no defined channel by which the surface water flows and therefore, no prescriptive right can be claimed in regard to the same. His further contention is that the word 'and' occurring in the aforesaid Clause (c) has to be read as 'or'. He also contends that the second requirements of Clause (c) is also not satisfied in this case because so far as the prescriptive right of easement in the second part of Clause (c) is concerned, the said right arises only if the water is collected in a pool, tank or otherwise. According to him, therefore, the, defendants are entitled to take water from this alleged channel and the plaintiff cannot claim any prescriptive right upon the same which he can claim only if the water is collected in a pool, tank or otherwise.
9. In support of his aforesaid contention, the learned Counsel for the defendants has relied upon the decision of the Madhya Pradesh High Court : AIR1975MP185 Narsoo v. Madanlal and others. It is true that in the said case it has been held that no right to surface water not flowing in a stream and not permanently collected in a pool, tank or otherwise can be acquired. In interpreting later part of Clause (c), the emphasis is laid upon the use of work 'collected' it being pointed out that the work used is not 'collecting', so as to emphasis that the right to easement under the second part of Clause (c) of section 17 arises only when the water is collected in a pool or tank or otherwise.
10. In interpreting the expression 'stream' used in Clause (c) of section 17, it is observed in the judgment of the M.P. High Court cited supra that the said word would be interpreted in the sense in which it is ordinarily understood by a common man and not in any technical manner. Applying the above canon of construction it is held that when the work 'stream' is used, the idea conveyed is of the body of water flowing through a defined channel, having a bed and banks on both the sides. A flow of excess rain water, though in a body and in one direction, spread over a very large area in width without any bed or having any banks within which the flow is confined, is held to be not a 'stream' within the meaning of the said Clause (c). A reference is also made in the above case to the Black's Laws Dictionary, Fourth Edition, at page 1590, wherein the work 'stream' is defined to mean 'A water course having a source and terminus, banks and channel, through which water flows at least periodically, and it usually empties into other streams, lakes, or the ocean.' The emphasis is placed by the learned Counsel for the defendants upon the requirement that the stream must consist of a bed, banks and water course. According to him, in the instant case the water flowing from Survey Nos. 452, 520/1 and 520/2 does not satisfy the above requirement.
11. Before going to the evidence, I may also refer to the meaning of the word 'stream' as given in some other Dictionaries. Stroud's Judicial Dictionary of Words and Phrases, Fourth Edition, Vol. 5, defines the word 'Stream' as follows'.
'Stream is properly a current of waters running over the level at random, and be not kept in with banks or walls... 'Stream' in its primary and natural sense denotes a body of water having, as such body, a continuous flow in one direction. It is frequently used to signify running water at places where its flow is rapid as distinguished from its sluggish current in other places.'
I am not concerned in the instant case with the other meanings of the word 'stream' given therein. The learned Counsel for the defendant relied upon the Dictionary meaning in the New Webster's Dictionary of the English Language in which the word 'stream' is defined as follows:
'Any river, brook or course of running water; a flow of gush of any fluid substance...a steady current in the sea or in a river.'
12. I may also refer to the decision of the House of Lords in M. Nab v. Robertson and others, 1897 A.C. 129 on the question of the meaning of the word 'stream'. At page 134, Lord Watson, J., held that the word 'stream' in its primary and natural sense, denotes a body of water having, as such body, a continuous flow in one direction. It is frequently used to signify running water at places where its flow is rapid as distinguished from its sluggish current in other places' water, whether falling from the sky or escaping from a spring, which does not flow onward with any continuity or parts but becomes dissipated in the earth's strata, and simply percolates through or along those strata, until it issues from them at a lower level through dislocation of the strata or otherwise, cannot with any property be described as a stream. It is thus clear from the above decision of the M.P. High Court, (cited supra) and the dictionary meaning of the word 'stream' that it connotes a steady current of water flowing in one direction having a defined channel. If the above requirement is satisfied by the alleged water course ... in the instant case, it would be a 'stream' within the meaning of Clause (c) of section 17 of the Act.
13. Turning to the evidence in this case, the witnesses examined by the plaintiff have described this water course as a 'Dand' or 'Pat'. In Molesworth's Marathi English dictionary, the word 'Dand' is defined as meaning a raised water course. The word 'Pat' is defined therein similarly to mean elevated water course to convey water through a plantation or a field. In the New Standard Dictionary, Vol. II by G.D. Khanolkar, the same meaning is given of the word 'Pat'. It is thus clear that what is meant by the witnesses on behalf of the plaintiff by using this expression is that there is an elevated water course ... as shown in the map. If there is an elevated water course, it is needless to say that there is a defined channel from which the surface water flows from Survey Number 452, i.e. the road, Survey No. 520/1 i.e. banzar land of the State Government and Survey No. 520/2 i.e. the field of defendant No. 1. Thus once surface water enters the defined water channel at point 'A' then the water used from the stream cannot be said to be hit by Clause (c) of section 17 of the Act as the surface water then losses its character as the surface water which may percolate or spread in the adjoining fields which is its principal characteristic. This is the view which is taken by the Andhra Pradesh High Court in Mungara Venkartramaniah and others v. Vudata Subbramayya, : AIR1961AP245 . A similar view if also taken by Rajasthan High Court in Dhanna and another v. Makhan Das, . It may be seen that the chief character of surface water is that its identity and existence as water body cannot definitely be ascertained and it cannot be said to belong to any particular person.
14. It is a settled law that a prescriptive right can be claimed in regard to the water flowing form the defined channel but not in regard to surface water as is clear from Clause (c) of section 17 of the Act. Since I have held that the water channel in the instant case shown by letters ... is a defined water channel, it is not necessary for me to consider whether a prescriptive right can be claimed by the plaintiff under the later part of Clause (c) on the ground that the surface water is collected in a tank in survey number 515. However, there is a concurrent finding of fact of both the Courts below based upon appreciation of evidence on record and which cannot be said to be perverse that the surface water falling upon the road Survey Number 452, the banzar land Survey Number 520/1, Survey Number 520/2 of the defendants and Survey Nos. 525/1 and 525/2 flows, through the water channel ... and collects in to the tank of the plaintiff in Survey Number 515 and that the said surface water does not flow into the tank of the defendants in Survey Number 522.
15. The learned Counsel for the defendants has urged before me that there is no evidence to show that there is a bed and that there are embankments to the alleged water channel in the instant case. There is no merit in the above submission. As already pointed out by the witnesses examined by the plaintiff have stated that there is a 'Dand' or 'Pat' by which the tank Survey No. 515 of the plaintiff is filled. The dictionary meaning of the expression 'Dand' or 'Pat' which is earlier referred to clearly shows that what is meant thereby is an elevated water course which would itself mean that there is a defined channel having a bed and embankments on both the sides of the water course. The above contention on behalf of the defendants, therefore, deserves to be rejected.
16. The next contention urged on behalf of the defendants is that the plaintiff has failed to prove his prescriptive title in regard to his right of drawing water from the defined water channel ... The principal submission of the learned Counsel for the defendants is that the plaintiff ought to have produced documentary evidence such as Settlement Map etc. to show that there was in existence a defined water channel ... in this village. It is true that the plaintiff has not produced such documentary evidence. However, the plaintiff has clearly proved his prescriptive title in regard to the same by clear, cogent and reliable evidence in this case. The plaint map (Exh. 45) filed with the plaint is a copy of the map drawn in 1945046 of the village Garra Bagheda which it is true is not a settlement map. It is from the above village map that Sk. Rasool, who was a patwari of the Chicholi circle within which the above village fell during the period from 1958 to 1963 and again from 1965 to 1969 has drawn the suit map (Exh. 45). The above original map of the village Garra Baghada drawn in 1945-46 is produced by Motiram (P.W. 1) who was patwari of the above circle at the time of his evidence. Sheikh Rasool (P.W. 2) has proved the suit map Exh. 45 from the above original village map.
17. Metiram (P.W. 1) has deposed about the channel shown by dotted double lines going through Survey Nos. 520/1, 520/2, 525/2, 526 and ending in Survey No. 516. He also deposed that the water from Survey Numbers 520/1 and 452 does not flow towards the north an, therefore, it cannot fall into the tank of the defendant No. 1 in Khasara No. 522, which according to him, is filled in by a 'Pat' from village Garra Bagheda shown in the map by double dotted lines. Sheikh rasool, the plaintiff's witness No. 2 who has drawn the suit map (Exh. 45) has proved the water course ... by which the tank of the plaintiff Survey Number 515 is filled. He deposed that the has drawn the said map from the village map prepared in the year 1945-46. He has also deposed that he has personally seen the breaches shown by letters ... and .. in the suit map from which he stated that the water is taken by the defendant to irrigate his field Survey No. 523 and Survey Number 524. It is thus clear form the evidence of these two witnesses that the water channel ... in the instant case existed from atleast 1945-46 and that it filled the tank of the plaintiff in Survey Number 515.
18. It is, however, urged on behalf of the defendants that Sheikh Rasool who has drawn the suit map has himself admitted in his cross-examination that in the suit map (Exh. 45) he has not shown the disputed portion. The submission on the basis of the above admission is that the defined channel was not in the original map. There is no merit in the above submission. In the first place, the original map was produced and the above witness was not contradicted by the said map to show that no such defined water course ... existed or was shown in the original map. Secondly, read in its proper context, what is meant by the disputed portions by the said witness is the breaches shown by him by letters ... and .. and also at the portion shown by him by figures 1,2, 3, and 4 which are not there in the original map of 1945-46. the said statements about disputed portion in his deposition cannot be construed do mean that no water channel ... was shown in the village map and, therefore, did not exist in the village as shown in the suit map. It would thus be clear that from 1945-46 atleast the defined water channel existed from which the water is collected in the tank Survey Number 515 of the plaintiff.
19. Thus, on the basis of the evidence led by the plaintiff, it will have to be held that the plaintiff has established his prescriptive title because for more than 20 years for cultivating his field he is drawing water from his tank in Survey Number 515 which is filled in by the stream or the defined water channel shown by letters .... He has started in his evidence that he has seen since his childhood that the water tank Survey Number 515 is filled in by the water by the defined water course ... and that the water in the tank is used for irrigating the crops. The other independent witness Maroti who is 65 years of age and the owner of the adjoining field has also supported the above case of the plaintiff. It would thus be clear from all the above evidence that the plaintiff has established by user for more than 20 years his prescriptive right to draw water form defined water channel flowing into his tank in Survey Number 515 for cultivating his field by the said water. Merely because a copy of the settlement map has not been filed, it cannot be said that the said right is not established. The suggestion put to the witness Sheikh Rasool that this water course was not shown in the settlement map was denied by him. If it was the case of the defendants that the said water course ... was not shown in the settlement map, it was open to the defendants to prove the same. The findings arrived at by the learned Courts below in this regard are findings of fact which cannot be disturbed in the second appeal.
20. There is also no merit in the submission made on behalf of the defendants that the water form this channel flows into his tank Survey No. 522. All the witnesses examined on behalf of the plaintiff have deposed that there is no slope from south to north and the water from Survey No. 452, 520/1 and 520/2 cannot pass in the direction of the tank of the defendants situation in Survey Number 522. It is further deposed by the witnesses examined on behalf of the plaintiff that the said tank in Survey Number 522 is filled in by a pat flowing from the northern side. The above submission on behalf of the defendants also therefore, deserves to be rejected.
21. In the result, the instant appeal fails and is dismissed with costs.