Chandra Reddy, C.J.
1. This appeal under Clause 15 of the Letters Patent is filed against the judgment of our learned brothel Seshachalapati J., in S. A. No. 914 of 1955.
2. The point that fall's for decision in this appeal is whether the plaintiffs in O. S. No. 479 of 1951 (District Munsif's Court, Nellore) are entitled to irrigate their lands by getting water from the lands belonging to the defendants. The plaintiffs are the owners of a land S. No. 108/B in the village, Komariva, Nellore, District. The defendants are the owners of the adjoining laud bearing S. No. 109/-A, having purchased it just before the suit.
The plaintiffs filed the suit which has given rise to this appeal, in the District Munsif's Court, Nellore, for declaration of their right to have their lands irrigated through S. No. 109/A, averring thai for several generations past their lands, which were lower in level than the lands of the defendants, were being irrigated by the flow of water from the defendants' lands. The action was founded upon immemorial right, custom and prescriptive title as a right of easement and under a lost grant.
3. The suit was contested on the plea that there was neither prescriptive title as a right of easementnor a lost giant, that the plaintiffs had a separate source of irrigation and that if the water were allowed to flow to the plaintiffs' land through the defendants' land, the latter would suffer great injury as there would be a diminution of the supply of water for their cultivation and also the washing away of the manure of the lands of the defendants,
4. The trial court came to the conclusion that the testimony of the plaintiffs' witnesses was acceptable, that even according to the defendants' witnesses the alternative source of irrigation of S. No. 108/B was not adequate and that till the purchase of S. No. 109/A by the defendants in 1951 there was no difficulty as the plaintiffs' land was presumably being irrigated by the flow of water from S. No. 109/A belonging to the defendants. In the result, it granted the decree as prayed for.
5. On appeal, the learned Subordinate Judge confirmed the decision of the District Munsif. The learned Judge found that the complaint of the defendants that the exercise of right by the plaintiffs would be detrimental to the beneficial enjoyment of their lands was more imaginary than real. The defendants carried the matter in second appeal to this Court.
6. Our learned brother, Seshachalapati J., dismissed the second appeal, concurring with the view of the courts below as to the right of the plaintiffs to get the lands irrigated by getting water from the field of the defendants. However, the learned Judge granted leave as some important questions of law arc involved in the case.
7. In support of this appeal, three contentions are urged before us by Sri Rama Sarma learned counsel for the Appellants. (1) Plaintiffs could not acquire any prescriptive right in this behalf as the water in question was not flowing in a stream and as such the right of casement could not be acquired by reason of Section 17 of the Indian Easements Act, (2) Since the plaintiffs have an alternative source of irrigation, there is no question of an easement of necessity which alone could be enforced; and (3) Lastly, the right asserted by the plaintiffs would deprive the defendants of the beneficial enjoyment of their lands and hence there was no obligation cast on the defendants to let out water into the neighbouring field.
8. To take up the first point, the argument of Sri Rama Sarma is that the water in question is surface water and so there could be no acquisition of prescriptive title in such a case. According to the learned counsel, since the water after getting into the defendants' land spreads itself over the defendants' field and does not get into any surplus channel before it comes to the plaintiffs' field, it could not be regarded as a known and defined source of irrigation, in which case alone the plaintiffs would be entitled to claim such a right.
If as contended, the water that gets into the field of the respondents answers the description of surface water, surely they could not acquire any easementary right as it comes within the prohibition enacted in Section 17, Clause (c). We have, therefore, to consider the nature of this body of water. As established from evidence, the water flowing through Chinna Cheruvu, Pulakaneela Kalva and water letthrough Mudivarthipalem irrigation channel enters S. No. 109/A. In, other words, the water flow in a defined course.
Does the fact that this water gets into the intervening field of the defendants, spreads itself over the entire extent thereof and comes to the field of the plaintiffs through a vent instead of being let into an intermediate channel, make any difference in the matter of the acquisition of the right in dispute? In our considered opinion, neither of these two circumstances renders the water surface water so as to disable the owner of the lower field to prescribe to a right like the one claimed here. The only test in determining the character of such water is whether its identity or existence as a water body is maintained.
9. There is a ruling of the Madras High Court, which has dealt with the subject exhaustively and laid down the principles to judge in what cases water partakes of the character of surface water. Vide Villuri Adinarayana v. Ramudu, ILR 37 Mad 804 at p. 307: (AIR 1914 Mad 507 at p. 508). The following passage illustrates the rule to be applied in that regard:
'It is no doubt true that no claim can be made, either as a natural right or as an easement by prescription except to water flowing in a definite course and that no such claim could be maintained with regard to what should be regarded as surface water or surface drainage in the proper acceptation of those expressions. But if this principle be understood correctly, it cannot, in our opinion, be held that the right to the water of a stream ceases when it ceases to flow in a confined water course. If the stream has exhausted itself as a stream and merely soaks into a field, then no doubt, no right to the water So soaking can be sustained in the same manner as no right can be recognised to water falling on a field from the sky overhead or oozing from the soil underneath. Water of any of these descriptions cannot be the subject of any right until it again begins to flow in a definite course'.
The learned Judges said in another part of the judgment:
'When the flow of water on one person's land can be identified with that on another, there is no reason why a right to such flow should not exist although the water may flow along an intervening piece of land'.
10. It is thus clear that merely because water spreads itself over the upper field before it gets into the lower field, it does not fulfil the definition of surface water. If it flows in a well-defined course into an upper land, spreads itself over the whole field, which is irrigated by it and then flows over the field ridge to another field or into an intermediate channel through which it comes into another field, it could not be regarded as surface water.
So long as the identity and the existence of the water that flows through the channel is maintained as a water body, it could not be described as surface water. In this case, after irrigating the defendants' land, water comes into the plaintiffs' land from an opening in the ridge in that surface on the southern side. There can be little doubt that the identity of the water that flows from these twochannels into the defendants' land is maintainedeven when it enters the plaintiffs' land. Indisputably, the water in question is neither spring nor rainwater but water let into by recognised irrigationchannels.
11. In these circumstances, there can be no room for doubt that water flows in a defined track and is not surface water and, as such, there is no scope for attracting Clause (c) of Section 17 of the Easements Act.
12. The proposition enunciated above is not in any way inconsistent with that embodied in Krishnaswamy Chettiar v. Pappi Naicker, 1944-1 Mad LJ 62: (AIR 1944 Mad 228). Sri Rama Sarma contendsthat this ruling is authority for the position that the owners of the upper lands are under no obligationto let out water to the lower fields and that the only remedy for the owners of the lower fields is to approach the Government for adequate supply of water for their irrigation, it being the primary duty of the Government to regulate the water supply to all the fields registered under a particular source.
13. We do not think that this case lends support to this theory. In that case the suit was for a declaration of the right of the plaintiffs to take water from a tank. There was a surplus channel having its source in the tank, with the fields of the plaintiffs on the east of if and those of the defendants to its west.
The case of the plaintiffs was that the water which came to the southern portion of the defendants' lands, after irrigating that portion, was let into the surplus channel and the plaintiffs were irrigating their lands from that surplus channel and that in or about 1937 the defendants made alteration in their lands the result of which was that the water which was hitherto being let into the surplus channel was used for the cultivation of the entire field.
Thereupon, a suit was filed by the Plaintiffs to direct the defendants to keep a portion of the surplus channel in the same state as it was before the alteration. In such a situation, Somayya, J., decided that the defendants could not be prevented from making such alterations in their land as they thought fit and to use water that flowed into their lands and that the only remedy available, to the aggrieved plaintiffs was to approach the Government for adequate supply of water.
14. The facts of that case are entirely different from those of the instant case. That the learned Judge did not intend to lay down any general proposition is apparent from these observations:
'It is not therefore possible to lay down the Tights of the owners of the upper fields and lower fields which will be o general application and Courts have to guard themselves against laying down any principle which might in other cases work very great hardship.'
The learned Judge continued:
'Even in cases of two tanks in the same village the practice may differ according to the exigencies of the situation.'
He also referred of passages in the judgment of Sundara Ayyar and Sadasiva Ayyar, JJ. in ILR 57 Mad 304: (AIR 1914 Mad 507) and finally held thatthe principle enunciated by the learned Judges in that case had no application to the case before him. We do not, therefore, think that (1944) 1 Mad LJ 62: (AIR 1944 Mad 228) is of any avail to the appellants. It follows that the first contention of the learned counsel for the appellants has to be rejected,
15. Coming to the second contention, it is true that the respondents-plaintiffs were getting water from Juttuvadi Kalva but, as found by the Courts below and by our learned brother, this could not irrigate the entire extent of their land. In those circumstances, although the right put forward may not amount to an easement of necessity, still the plaintiffs could insist on the use of that water on the foot of customary right. Such a right could well be de hors the Indian Easements Act. As observed by Their Lordships of the Privy Council in Rajrup Koer v. Abdul Hossein, ILR 6 Cal. 394 at p. 403 (P. C.).'
'The object of the statute was to make more easy the establishment of rights of this description by allowing an enjoyment of twenty years, if exercised under the conditions prescribed by the Act, to give, without more, a title to easements. But the Statute is remedial and is neither prohibitory nor exhaustive,'
In this case, it has been affirmatively established by the plaintiffs that they have been enjoying this right for a long number of years without any interruption. In fact, it was only after the defendants purchased S. No. 109/A that the plaintiffs began to experience some difficulty in the enjoyment of this right. It follows that the respondents-plaintiffs are entitled to the use of the water even assuming that it could not be characterised as an easement of necessity.
16. There remains the question whether by permitting the plaintiffs to irrigate their lands in the above-mentioned manner it would be destructive of the right of the defendants to the beneficial enjoyment of their lands. Here again, the appellants-defendants have not established that this right of the plaintiffs would in any way adversely affect them. The finding of the Courts below and confirmed by our learned brother is that this would not in any way result in the diminution of water supply to the defendants.
17. The complaint that if the water overflows from the appellants' land all the manure therein would be washed away is unfounded. There is, therefore, no substance in this contention either.
18. No other point was argued before us.
19. It follows that the conclusions of our learned brother are unassailable and the judgment under appeal has to be affirmed.
20. In the result, the letters patent appeal is dismissed without costs.