G.K. Misra, J.
1. Plaintiff filed the suit for permanent injunction restraining the defendants from obstructing the flow of 'Kharipani' from the village lane, to the plaintiff's land through the channel marked A. B. in the map attached to the plaint and directing them to reopen the said channel. Plot No. 735 in village Surda covering an area of 2.46 acres is a mal variety of land belonging to the plaintiff. Plot No. 736 with an area of 3,64 acres is Goda land recorded in the names of the ancestors of the defendants and is in possession of defendant-1. Plot No. 736 is to the contiguous west of plot No. 735, Plot No. 668 is the village lane. On either side of this village lane houses are situate. Plaintiff's case is that for more than 40 years the rain water from the village Basti on the village lane in plot No. 668 flows towards the west and goes to plot No. 735 through the channel AB. The channel was constructed by the ancestors of the plaintiff. The water after flowing through plot No. 735 passes to plot No. 737 and thereafter to a river lying to the west of plot No. 737.
The ancestors of the plaintiff checked the flow of rain water on plot No. 668 at a place to the further west of point A and that the plaintiff and his ancestors have been enjoying the 'Kharipani' as an easement and as of right without interruption for more than 20 years. On 8-10-1955 defendant-t filled up the channel and diverted the 'Rharipani' to his own plot 736 in consequence of which the plaintiff's crop had been damaged. Plaintiff's request through the intervention of the Punches to the defendants not to interfere with his right failed.
2. Defendants 1 and 2 filed a joint written statement. The flow of 'Kharipani' on the village lane is not disputed. The main assertion of the defendants is that the 'Kharipani' first enters into plot 736 at many points and spreads over it. After covering different portions of the land, the excess water enters into plot 735. The existence of the channel AB is denied. Plaintiff's allegationthat on either side of the village lane in plot 668 are houses is not denied. Defendants plead that there is no Mela shown as AB, but about 3 to 4 years back the plaintiff, without the consent of the defendants, made an opening at point B to take away the 'Kharipani' to his land. Plaintiff's claim to right of easement was accordingly challenged.
3. It is to be noted that the bone of contention between the parties on the pleadings covers a very narrow point. The configuration of the land and the location of the houses on either side of the village lane in plot No. 668 are not disputed. Defendants also did not raise any contention that the 'Kharipani' coming on the village lane was the surface water. On the contrary, the flow of 'Kharipani' in the village lane was not disputed. The entire dispute of the defendants, as presented in the written statement, was regarding non-existence of the channel AB for over 40 years, as averred in the plaint. As the dispute was confined to this narrow point, Issue No. 2 was framed! as follows :-
'Whether there was any channel over plot No. 736 and whether the plaintiff can claim any prescriptive right to take Kharipani to his plot No. 735 through the alleged Nala.'
Issues 1 and 3, quoted below, were merely formal ones :
Issue No. 1 : - Whether there is any cause of action for the suit?
Issue No. 3 : - To what relief, if any, is the plaintiff entitled?
4. On full analysis of the evidence, both the courts have concurrently found that the channel AB existed for more than 40 years on plot No. 736. The learned Munsif dismissed the suit holding that the Easements Act was not in force in Gangpur State prior to the merger on 1-1-1948 and that the Limitation Act was in force in Gangpur State from 1-1-1939, and, as such, the plaintiff was not entitled to a declaration of his right of easement under any of the Acts.
5. The learned Additional Subordinate judge, while agreeing with the learned Munsif that the plaintiff was not entitled to a declaration of his right of easement underthose Acts, held that the plaintiff was entitledto the relief on the principles of equity, justice andgood conscience and decreed the plaintiff's suit.Defendants T and 2 and the legal representatives ofdefendant 3 have filed this second appeal againstthis judgment of the learned Addl. SubordinateJudge.
6. Even if the plaintiff may not be entitled to a declaration of his right of easement under the Easements Act and the Limitation Act, he may claim the relief otherwise. In Rajroop Koer v. Abdul Hossain, 7 Ind App 240 (PC), their Lordships of the Privy Council observed : -
'The object of the Statute (Limitation Act) 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. A man may ac-quire a title under it who has no other right at all, but it does not exclude or interfere with other titles and modes of acquiring easement, x x x any court which had to deal with the subject might, and indeed ought, to refer such a long enjoyment to a legal origin, and, under the circumstances which have been indicated, to presume a grant or an agreement.'
There can therefore be no doubt that the plaintiff can acquire right of easement on the theory of lost grant.
7. The circumstances and conditions under whicha presumption of lost grant could be made are wellknown. When a person is found in possession ofland for a long time, under an assertion of titlewithout challenge, English Courts ascribe legal origin to such possession, and when on the facts theacquisition of title by prescription could not beestablished, a presumption could be made, that thepossession itself was referable to a grant by theowner of the land and that such a grant had beenlost. It is a presumption of fact and not of law.and the courts are not bound to raise such a presumption if the evidence on record was against itor if there was any legal bar to the making of sucha presumption.
8. In this case, . both the courts have concurrently found that the channel A B has been constructed by the plaintiff on plot No. 736 for over 40 years and that the 'Kharipani' from the village lane passes through this channel to plot No. 735. On this finding the suit should be decreed as the defendants never joined issue on the question that the 'Kharipani' passing on the village lane upto point. A was surface water in respect of which no right of easement can be acquired.
9. Under Section 17(c) of the Indian Easements Act, a right of easement cannot be acquired to surface water not flowing in a stream and not permanently collected in a pool, tank or otherwise. This section has no direct application to this case, as the Easements Act was not in force; but yet the identical principle must be applied while testing the acquisition of right of easement by lost grant. It is necessary to lay down the test of surface water. In Adinarayana v. Samudu, AIR 1914 Mad 507 their Lordships observed :-
'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.
The chief characteristic of surface water is its.inability to maintain its identity and existence as awater body.'
Applying the aforesaid test, I have absolutely nodoubt that the 'Kharipani' passing on the village lane in plot No. 668 is not surface water. From the configuration and situation of the land, alreadygiven, it is manifest that the land is bounded by houses on either side. The village lane has a well defined dimension. It merely carries the 'Kharipani', wash out water, of the village in the rainy season and other seasons when rain falls. It is a matter of common knowledge that in many villages in Orissa, the village lane itself serves the purpose of water channel. The case reported in Dinger, Panda v. Bhima Padhan, 17 Cut LT 120 is illustra-tive of the user of the village lane for the purpose of water channel. The 'Kharipanj' maintains the identity and its existence as a water body not only while flowing on the village lane but also while flowing through the channel AB. I am, therefore, satisfied that the 'Kharipani' is not surface water within the technical legal sense. Moreover in the written statement it was never asserted that the 'Kharipani' running on the village lane was surface water. The defendants should not be permitted to take up such a stand without necessary pleading as the question whether it was surface water or not is a question of fact.
10. Mr. Ranjit Mohanty cited an unfeported Single Judge decision of this Court in Balamakunda v. Damburudha Naik, Second Appeal No. 178 of 1960, D/- 11-10-1961 (Orissa). The facts of that case are quite distinguishable. In that case, it appears that surface water passed from one side of the village road to the other side by causing a ditch on the road itself and when earth was put on the ditch, the surface water was diverted. In the facts and circumstances of that case, his Lordship observed that before the start of the plaintiff's channel the rain water of the village had no defined course and that the passage of the rain, water over the road was nothing but surface water not passing through any channel. The decision is not applicable to the facts of this case.
11. The appeal has no merit and is dismissed with costs.