A. Misra, J.
1. This appeal has been filed by defendants Nos. 1 to 8 and 10 to 14 against a confirming judgment.
2. Plaintiff-respondent No. 1 who was Chowkidar of village Anlajhari possessed 1.75 acres of land divided into 11 fields as his jagir. The largest of these fields is locally known as Gada Kiari. After abolition of the chowkidari service, the jagir lands have been settled on him. Defendants Nos. 1 to 14 are residents of village Garudabandi, while defendants Nos. 15 to 21 are residents of Anlajhari. The field Gada Kiari on account of its favourable situation receives flow of surface water from other fields lying to its north and east. The land of Karuni Pradhan is situate to the adjacent west of Gada Kiari and the lands of other villagers of Garudabandi lie to the west of Karuni Pradhan's land. The lands of villagers of Anlajhari lie to the south of Gada Kiari. According to the plaintiff, during rainy season, on occasions of heavy shower water used to flow from Gada Kiari to Karuni Pradhan's land, though the latter never possessed any right to insist on such flow. In the year 1960, disputes arose between the villagers of Anlajhari and Garudabandi regarding the water flowing from Gada Kiari.
This led to a proceeding under Section 147, Cr. P. C. in which the villagers of Garudabandi claimed that Gada Kiari is a perennial water source having a spring from which water flows through some fields and ultimately feeds a tank of their village in a defined channel. In the said proceeding, the learned Magistrate declared the right claimed by Garudabandi people, and therefore, the present suit was filed by the plaintiff for a declaration that the defendants have no right whatsoever in respect of the water that accumulates in his field Gada Kiari and for a permanent injunction restraining them from interfering with his right to dispose of the said water in whatever manner he chose or interfered with the ridges of his field.
3. Defendants Nos. 15 to 21 who are villagers of Anlajhari supported the plaintiff's case while defendants Nos. 1 to 14 who belong to Garudabandi contested the claim. According to them, Gada Kiari has springs which form the source of a stream from which water flows in a defined channel to their lands lying to the west of Karuni Pradhan's field and feeds a tank of their village. They have been using this water for agricultural and other purposes since time immemorial, and as such, have acquired a right which cannot be interfered with. They further state that in recent past the residents of Anlajhari opened a channel on the southern side of Gada Kiari and diverted the water by raising the ridge on the western side, and therefore, proceeding under Section 147, Cr. P. C. was started and ultimately decided in their favour. They also challenged the maintainability of the suit on the ground of non-joinder of parties and absence of title of the plaintiff to the field known as Gada Kiari after abolition of the chowkidari service.
4. The trial Court decreed the plaintiffs suit on the following findings: (1) The State is not a necessary party as on abolition of the service the land Gada Kiari has been settled on the plaintiff; (2) the suit is not bad for non-joinder of parties; (3) the water accumulating in the field Gada Kiari is surface water in which no prescriptive or easementary right can be claimed; (4) the water does not flow in a defined channel to confer any rights on the defendants and (5) defendants Nos. 1 to 14 have not acquired any easementary right to the flow of the water. The lower appellate Court affirmed the judgment and decree of the trial Court holding that the water which accumulated on the field in question is only surface water as it is not derived from any stream, pool or tank; that it does not flow in any defined channel; that the accumulated water being surface water, plaintiff has absolute right of disposal in any manner he chose and that the defendants Nos. 1 to 14 cannot claim acquisition of any right to the said water either by prescription or easement.
5. On behalf of the appellants, the following points were urged before me; (1) the courts below have erred in assuming that defendants only claim easementary right, while in fact, their claim is a prescriptive or a customary right to the water and (2) the courts below have committed a gross error in their finding that the water accumulating in Gada Kiari is surface water received by it from the adjoining fields when there is rain and not water derived from perennial sources like springs.
6. The specific case of the plaintiff is that Gada Kiari is a piece of paddy land and there is no natural or other perennial source from which water flows in any defined channel. On the other hand, according to the contesting defendants, there are springs in Gada Kiari which constitute the source from which water is derived and thereafter it overflows the western ridge to Karuni Pradhan's land and across the fields of some others and then feeds a tank.
7. In deciding the respective claims of each of the parties, one of the essential points for determination is whether water which accumulates in Gada Kiari is surface water. There can be no dispute that surface water cannot be the subject-matter of acquisition of easementary or prescriptive right as every land-owner has a natural right to deal with the surface drainage water as he chooses. Different considerations, however, will arise, if the water flowing from the field in question is not merely surface drainage water which collects on the field during rains, but is water derived from a known and regular source and flows in a defined channel. Therefore, the two important questions which arise for determination are whether the water flowing from Gada Kiari is derived from any spring or springs more or less perennial in nature and whether the body or water flows across the western ridge through an opening over the fields of Karuni Pradhan and others, till reaching the tank through a defined channel.
It is contended for respondents that even if there are springs from which the water flowing from Gada Kiari is wholly or substantially derived, as it spreads over the fields of Karuni and others before falling into the channel and reaching the tank, it cannot be said to be flowing in a defined channel to be subject of any prescriptive or customary right. The mere fact that the water coming from the spring spreads itself in the upper field before reaching the lower fields is not sufficient to treat the water as surface water. In a decision of this Court in AIR 1963 Orissa 97, Manu Mangal v. Dhaniram, the following observations in AIR 1914 Mad 507 as laying down the tests for determining the characteristics of surface water were quoted with approval:
'In each case, the question whether or not particular water is surface water is one of fact to be determined by the circumstances attending its origin and continued existence. If the water is spread out and flows sluggishly over the surface, losing itself by percolation and evaporation, it is surface water, although it has its source in springs. But the mere fact that the water spreads out of some places, and flows sluggishly without sufficient force to form a channel for itself, does not make it surface water if the flow has sufficient force to maintain itself, and it is subsequently gathered together into a channel so as to form a water course.'
Similarly, in the decision in (1960) 2 Andh WR 394 = (AIR 1961 Andh Pra 245), Venkataramaniah v. Subbaramayya, it was observed:
'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.'
Therefore, in this case, it is necessary to find out whether the water flowing from Gada Kiari is surface water in which no rights can be acquired or it comes from a definite source, i.e., springs in the field which give out the water that results in the flow. If it is found that the water is derived from these definite sources, the mere fact that it spreads over Gada Kiari and thereafter flows over Karuni's and other fields before falling into the defined channel leading into the tank cannot make it surface water, if the identity or existence of this water as a water body downstream is maintained. The definite case of the defendants being that the source of this water is traceable to springs, a Commissioner was deputed to find out the truth or otherwise of these assertions by local investigation. The Commissioner was also examined as C.W. 1 and his report marked Ex. 1. In his evidence, he has stated as follows:
'By the time I visited Gada Kiari, rains had set in. There was water in Gada Kiari and the surrounding fields. In my report, I mentioned that the surrounding fields were filled with water. By 'field', I meant there was full water in the surrounding fields. As there was water near the fields, I simply made a round and it was not possible for me to determine as to whether there is a spring or not. I saw a small depression in the western ridge of Gada Kiari practically in the middle. The defendants showed me 7 to 8 kitas adjacent to Gada Kiari and those 7 to 8 kiaris are adjacent one after another. I found a particular channel beginning from the far end of the 7th Kiari. That channel runs up to hundred yards. I found water flowing in the channel.'
The Commissioner's report and evidence make it clear that due to the fields being full of water it was not possible for him to find out the springs, if any, as claimed by the defendants, there is a depression in the western ridge of Gada Kiari and a defined channel through which water was flowing after spreading over 7 or 8 kiaris. Though the Commissioner has stated that it was not possible for him to find out if any spring exists, the lower appellate Court has observed:
'But in view of the evidence of the Commissioner, I am inclined to find that the defendant-appellants have failed to establish satisfactorily that springs are oozing out from the adjacent fields and from inside the Gada Kiari itself and the water is accumulating in Gada Kiari.'
This is contrary to the report and evidence of the Commissioner. It would have been different if the lower appellate Court had come to the conclusion on other evidence, but it could not have come to such a conclusion on the evidence of the Commissioner who has expressed that he was unable to find out the springs due to the fields being full of water. If there are springs which form the source for the flow in spite of the fact that it spreads over Gada Kiari and other fields and then flows into a defined channel the question will arise whether the water can be considered surface water or not. Therefore, it is essential to find out whether there are springs in Gada Kiari or in the neighbourhood which form the source of water and if they form the source of water, whether the identity of the water is maintained when it falls into the defined channel though for some space it spreads over different fields and by the pressure of its own flow falls into the channel. In these circumstances, it is necessary that a Commissioner should be deputed during a time when it will be possible for him to find out whether springs are in existence in the field and they constitute the source of the water which flows and in the light of his findings the question whether defendants Nos. 1 to 14 can claim to have acquired any prescriptive or customary right has to be determined.
8. Hence, the appeal is allowed and the judgments and decrees of the courts below are set aside. The suit is remanded to the trial Court for fresh disposal. The trial Court will appoint a Commissioner on appellant's depositing the costs to visit the locality during a season when it will be possible to find out if any spring exists forming the source of the water that flows from Gada Kiari and decide the rights claimed by the respective parties. It will be open to the parties to adduce further evidence, if any, if they so choose. The costs of the appeal will abide the final result.