1. In the Letters Patent Appeal there was difference of opinion be- tween Justice Shiv Dayal and Justice Singh who heard the apoeal. The case has, therefore, been referred to me.
2. In the village in question Khasra No. 165 is a village tank, bounded on all sides by embankments. Immediately to the southern side of this tank is situate Khasra No. 164, belonging to the defendant. In an area of 3.32 acres which is sort of a depression rain water used to collect. This portion has no embankment. The excess rain water in this area used to flow in the tank Khasra No. 165. This area of Khasra No. 164 is known as 'Munda tank', not having embankments on all its sides. In the village papers it is recorded that the cultivators having their fields towards the eastern side of the tank Khasra No. 165 and the Munda tank in Khasra No. 164 have a right to use the water collected in those tanks for irrigating their fields. The natural slope in the village is from west to east, As a result of this geograhpical condition, excess rain, water from the hills, the abadi and the lands towards the western portion of Khasra Nos. 165 and 164 has a tendency to flow towards Khasra No. 164 and thus some water is collected in the depression, referred to above.
3. In the year 1956 the defendant purchased Khasra No. 164, having an area of 5.32 acres, out of which an area covering 3.32 acres is the depressed area. Soon after his purchase the defendant constructed embankments, running north-south one on the western border of Khasra No. 164 and the other near the depressed portion. He had also constructed embankments, running east-west, joining the two embankments. The plaintiffs' case was that as a result of this construction of embankments the quantity of water which used to be collected in the depressed portion of 3.32 acres of Khasra No. 164 was reduced and the flow of excess water in the tank Khasra No. 165 was also prevented which substantially affected the right of irrigation of the plaintiffs. They, therefore, brought the suit for injunction permanently restraining the defendant from obstructing the flow of water in Khasra No. 164 and Khasra No. 165 and for damages amounting to Rs. 2,300/-
4. Both the Courts below came to the conclusion that the water coming from the hill side over the abadi and other intervening fields was 'surface water' over which no right of easement could be claimed and the defendant was free to utilise that water in any manner he liked or to throw it out from his field. As to the entry in the wazib-ul-arz it was held that the plaintiffs had a right to irrigate their fields from Khasra Nos. 164 and 165 to the extent any water was collected therein but they had no right to prevent the defendant from impounding the water coming to Khasra No. 164 or diverting it otherwise. In this view of the matter, the plaintiffs' claim was negatived in toto.
5. In second appeal the then Chief Justice (Shri Bishambhar Dayal) did not dis-turb the finding of the Courts below that what reached in Khasra Nos. 164 and 165 was surface water. The learned Chief Justice, however, felt that the Courts below misapplied the law of surface water to the facts of the case. The learned Chief Justice felt that such a right was capable of acquisition both as a matter of local custom recognised by Section 18 of the Indian Easements Act and entered in the Wazib-ul-arz and that it was also capable of acquisition under section 15 of the Easements Act. It was held that in the particular case the water permanently collected in the pool or tank from which the plaintiffs used to take water for irrigation and thus the plaintiffs had acquired a right both under local custom as well as by prescription. Having come to the conclusion that such a right was acquired, the learned Chief Justice came to the conclusion that the defendant could be restrained from so using his own land as to prevent water reaching the tank. The learned Chief Justice was of the view that if the defendant was not prevented from allowing the flow of water into Khasra Nos. 164 and 165 as well, the easement right acquired by the plaintiffs would be defeated and what could not be done directly by preventing the taking of water could not also be done indirectly by preventing the accumulation of water in the depressed portion of Khasra No. 164. In this view of the matter, it was held that the plaintiffs were entitled to a declartion of the right to irrigate their fields from the tanks Khasra Nos. 164 and 165 and a decree for injunction restraining the defendant from preventing rain water from collecting in the tank, area 3,32 acres, of Khasra No. 164 and Khasra No. 165 as also a decree for damages as may be found by the Courts below. As the lower Courts had not determined the damages, the case was remanded for assessing the same and passing a proper decree. However, as no direct authority was cited before the learned Chief Justice, His Lordship suo motu granted permission to file a Letters Patent Appeal. This is how the case came before the Division Bench.
6. It is clear from the judgment of the learned Chief Justice that the finding of the lower Courts that the rain water which collected in part of Khasra No. 164 retained its character as surface water till it entered the depression in that khasra number was not disturbed by His Lordship; but His Lordship felt that inasmuch as the plaintiffs had acquired an easement right to use the water so collected, both by prescription and under the local custom, the defendant was not entitled to disturb the flow of water into the depression of Khasra No. 164, as that act would affect the easement right of the plaintiffs which could not be done by the owner of the servient tenement. The only controversy that was, therefore, open before the Division Bench was as to whether the defendant had lost his right to utilise the surface water in any manner he liked only because the plain-tiffs had acquired either a prescriptive right or a customary right to use the water in the said two khasra numbers.
7. Justice Singh was of the opinion that no right of easement or customary right was created over whole of Khasra No. 164. The portion of Khasra No. 164 which was not covered by water could not be treated as a servient tenement and that the defendant was free to use the other portion in any manner he liked and utilise the surface water on it to the best possible advantage or to repel it. He was, therefore, entitled to impound the surface water in the rest of Khasra No. 164. As to the entry in the Wazib-ul-arz it was held by His Lordship that the entry was confined to only an area of 3.32 acres of Khasra No. 164 with a direction that that area would not be cultivated by the defendant. In the absence of any sepcific record that the holder of Khasra No. 164 or the holders of other fields lying towards the western side were prevented from utilising the surface water in any manner they liked, it could not be held that any customary right was created in favour of the plaintiffs so as to prevent the defendant from impounding the surface water before it reached the depression, area 3.32 acres. It appears that an argument was also advanced before the Bench that the water that collected in Khasra No. 164 was not 'surface water' but it was a stream which emptied itself in the depression and, as such, a right of easement could be acquired over the whole flow of water. Justice Singh, on an elaborate discussion and citing a number of Indian and foreign authorities, came to the conclusion that the rain water had not lost its identity as surface water and had not become a stream.
8. Justice Shiv Dayal, on the other hand, came to the conclusion that once it was recognised that a right of easement was acquired on Khasra No. 165 and part of Khasra No. 164, that right could not be disturbed by anyone by any act of commission or omission. In support of his conclusion, Justice Shiv Dayal relied on Section 32 of the Easements Act which provides that the owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person. It was held by His Lordship that this section applies both to customary easements acquired under Section 18 of the Easements Act and those acquired under Section 15 by prescription. His Lordship also referred to Section 27 which protects the right of easement from being defeated. His Lordship was of the opinion that the restrictions which Section 27 imposes come into play only after the right of easement has been acquired by prescription. Until such acquisition, it was open to the defendant to intercept the water reaching Khasra No. 164 or 165, but he could not place any obstacles or intercept or divert water, as he pleases, after he allowed a continued and uninterrupted user for over 20 years. In this view ofthe matter, Justice Shiv Dayal concurred with the decision of the learned Chief Justice. His Lordship also considered the question as to whether the water that collected in Khasra No. 164 was surface water till it reached the depression in Khasra No. 164 or was a stream and came to the conclusion that it was a stream, and on this view also it was held that the defendant had no right to impound the water on the rest of Khasra No. 164 or to divert it, the plaintiffs having acquired a right of easement over such water.
9. Both the learned Judges had agreed on the point that the plaintiffs had a right to irrigate their fields from water collected in the depression of Khasra No. 164, area 3.32 acres, and in the tank Khasra No. 165 and were entitled to a declaration to that effect, but they differed on the question whether the defendant must, by a permanent injunction, be restrained from preventing the rain water from collecting in the depression of Khasra No. 164 over an area of 3.32 acres and consequently the kind of injunction that can be issued against the defendant.
10. After having gone through the judgments of both the learned Judges and having heard the parties, I am inclined to agree with Justice Singh on the basis of the authorities cited by him in his judgment and on the reasoning adopted by him. I will, however, add a few reasons of my own.
11. Under Section 17(c) of the Easements Act, a right to surface-water not flowing in a stream, and not permanently collected in a pool, tank or otherwise, cannot be acquired. It is no longer disputed before me that in the context the word 'and' should be interpreted as 'or'. From a plain reading of Section 17(c) it would appear that easement rights can only be acquired over surface water if it is flowing in a stream, or if the surface-water is collected in a stream. The expression used is 'collected' and not 'collecting'. Thus, easement rights can only be acquired over water which is already collected in a pool or a tank, and no rights are acquired over the collecting of the same. I have already noted that the finding of the Courts below that the rain water did not lose its character as surface water till it reached the depression was not disturbed by the learned Single Judge. It, therefore, follows that no right of easement could be acquired over the surface water till it reached the depression and, as such, the defendant was entitled to impound the surface water or to divert it before it reached the depression. His or his predecessor's action in not impounding the water or diverting it for a long time would not create any right of easement over the surface water as that is prohibited by Section 17 of the Easements Act. That right which cannot be acquired directly because of the provisions contained in Section 17 of the Easements Act, in my opinion, cannot be acquired indirectly as well. If it is held that only because the plaintiffs had acquired a right of easement over the water collected in the depression in an area of 3.32 acres of Khasra No. 164 they had also acquired a right of insisting on the flow of surface water in the depression, it will have to be held that the plaintiffs had acquired easementary rights over the surface water as well. This conclusion cannot be reached as there is specific prohibition in the Indian Easements Act. Inasmuch as we in India are governed by statutes, the rights are to be strictly spelt out from the provisions themselves and their ambit cannot be enlarged either on the basis of analogies or decisions based on foreign law. It is no doubt true that under Section 27 of the Easements Act an owner of the servient heritage is prohibited from doing any act tending to restrict the easement, or to render its exercise less convenient. But this provision is applicable to doing any act on the servient heritage which may result in restricting the easement, or rendering the exercise less convenient. This provision is not applicable to any land which is not a servient heritage. In the case in question the right was created over the water collected in an area of 3.32 acres of Khasra No. 164 only. That area could alone be treated as servient heritage. Rest of the area of Khasra No. 164 was not the servient heritage and, as such, it was open to the defendant to impound the surface water or to divert it in the rest ot the area or from it. Section 27 is not thus attracted in this case. Similarly, Section 32 of the Easements Act is of no help to the plaintiffs. It is no doubt true that under Section 32 the owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person. But before Section 32 is invoked it is necessary to determine as to the extent of the right of easement acquired by the owner or occupier of the dominant heritage. If he had acquired or if he could acquire legally only the right to use water collected in the pool or the tank and under law could not acquire a right over the free flow of the surface water, it cannot be said that any disturbance is caused by anyone in the enjoyment of the easement by impounding the surface water before it reached the pool or the tank or by diverting it. In my opinion, therefore, the defendant was within his rights to impound the surface water or to divert it before it reached the pool or the tank and the plaintiffs had no right to seek injunction against the defendant preventing him from doing so.
12. This brings me to the consideration of the question as to whether under the Wazib-ul-arz the plaintiffs had acquired any such right. The area in question is a paddy growing area where necessary embankments are put up to collect the rain water and whatever remains in excess is only allowed to escape. It is an admitted fact that the rain water coming from the hill side over the abadi and on the lands of others comes to Khasra No. 164 and ultimately gets collected, if it is in excess, in the depression in KhasraNo. 164. Now, if it is held that the plaintiffs had acquired a customary right over the rain water, which is surface water, in the depression in Khasra No. 164, it will have to be assumed that the said right was acquired by the plaintiffs not only in respect of Khasra No. 164 but in respect of all the land lying towards the west, upto the hill side. If this interpretation is put on the entry in the Wazib-ul-arz recording the right the light would be rendered unreasonable. When any custom is pleaded before the Court, it is essential for it to first determine whether the custom is reasonable and to the extent it is reasonable it can be recognised by the Court. That is why it is necessary to carefully scrutinise the entry in the Wazib-ul-arz. The entry only records that certain fields lying to the east of Khasra No. 165 and Khasra No. 164 have a right to take the water collected in those khasra numbers for irrigation. It also prohibits the owner of Khasra No. 164 from cultivating the land over which the water is collected. This entry has thus both a positive as well as a prohibitory content. If the custom was so wide as to prevent all landholders lying to the west of Khasra Nos. 165 and 164 from interfering with the free flow of surface water, that custom would surely have been recorded, especially when the prohibition preventing the owner of Khasra No. 164 from cultivating 3.32 acres was specifically mentioned. It is quite obvious to me that a right preventing all the land-holders from utilising the surface water to the best of their advantage was not recorded and could not have been recorded because it would have been unreasonable. Thus, even though under Section 18 of the Easements Act customary easements can be acquired without any restrictions as is the case under Section 17, I am of the view that no customary right was acquired by the plaintiffs over the surface water till it reached the depression, and the only right recognised was over the water that was collected in the depression of Khasra No. 164 or in the tank Khasra No. 165. Justice Shiv Dayal has also held that the rain water which flowed from the hill side, from west to east so as to reach Khasra No. 164 was a stream as it flowed in a body and in a specific direction. I find it difficult to concur with this conclusion. Water has a natural tendency to flow from higher level to lower level. As in this particular village the slope was from west to east, the excess rain water would naturally flow in that direction. When the rain is heavy and the whole of it is not absorbed in the fields, it would naturally flow in a body. But only because intermittently it flows in a body and in a particular direction, it cannot be reasonably held that the rain water forms into a stream. The expression 'stream' used in Section 17 of the Easements Act should be interpreted as is ordinarily understood by a common man un less the context requires its interpretation in a technical manner. There is nothing in sec-tion 17 of the Easements Act or other Sections to impel us to interpret it in any technical manner. When one uses the word 'stream', the idea conveyed is that the body of water flows 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, cannot, in my opinion, be treated as a 'stream'. In Black's Law Dictionary, Fourth, Edition, at page 1590, the word '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 stream thus consists of a bed, banks and water-course. It must also be noted that there is an admission by the plaintiff that the rain water coming from the western side does not flow only in Khasra No. 164 but it flows towards its southern side also and. enters some of his fields. This is because of the natural flow of the water from west to east and the flow was not confined only to Khasra No. 164. Justice Singh has elaborately discussed the law on the point and has come to the conclusion that the flow of the water in question did not form into a stream. For the reasons given by him and the ones I have noted, I entirely agree with him.
13. In the result, I concur with the conclusion of Justice Singh allowing the appeal and passing a decree on the terms enumerated by him in paragraph 17 of his judgment in substitution of the decree in second appeal passed by the learned. Chief Justice.
14. The appeal shall now be placedbefore the Division Bench for final disposal.