C.M. Lodha, J.
1. These two appeals by the defendants can be conveniently disposed of by a common judgment as they raise an identical question.
2. Both the suits out of which these two appeals arise were instituted by Bhagwandas who died during the pendency of the suit and is now represented by his son Makhandas. His case was that he owned Khasra Nos. 460, 461 and 462 in village Machadi, District Alwar, and rain water coming down from the hills and the forests after passing through the fields of the defendants used to flow into his field so that the crop in his field was irrigated by this rain water. It was alleged that the defendants in both the cases constructed 'Dolies' in their respective fields and thereby stopped the flow of rain water through their fields to the plaintiff's fields with the result that the plaintiff was deprived of the use of the rain water in respect of which he had acquired a right of prescriptive easement. It was, therefore, prayed that an injunction may be issued against the defendants for demolishing the 'Dolies' constructed by them and for restraining them perpetually from stopping the flow of the rain water to the plaintiffs fields through their fields.
3. The defendants in both the cases denied that the rain water ever passed through their fields to the plaintiff's fields. They also pleaded that the 'Dolies' constructed by them had been existing for a very long time. It was stated by them that the plaintiff had not acquired any easement of using the rain water flowing through their fields.
4. After recording the evidence produced by the parties the learned Munsiff, Rajgarh dismissed both the suits though by separate judgments, but the findings given in both the cases were identical. It was held that the plaintiff had acquired a right of easement to irrigate his fields with the lain water flowing down from the hills and passing through the fields of both the defendants. He also found that some time in the year 1958 the defendants had raised a sand wall (Doli) in each of the two fields which had obstructed the passage of the rain water to the fields of the plaintiff. However, he came to the conclusion that the rain water did not pass through a defined channel and thus the plaintiff did not acquire a right to surface water which was not flowing in stream and was not permanently collected in a pool or tank or otherwise.
In this view of the matter he came to the conclusion that under Section 17 of the Easements Act no right of easement could be acquired by prescription in respect of surface water not flowing in a stream.
5. Dissatisfied with the judgments and decrees of the trial Court the plaintiff filed appeals in both the cases in the Court of District Judge. Alwar, who transferred the same to the Court of Additional District Judge Alwar for decision. The learned Additional District Judge, however, came to the conclusion that the rain water comes from hills and forests in a defined channel to the defendants' fields and flows further on to the plaintiff's fields after irrigating the defendants' fields since times immemorial and the flow of the water to the plaintiff's fields has been obstructed by the defendants by raising Dolies. He held that the rain water coming to the plaintiff's fields does not partake nature of the surface water. In this view of the matter he set aside the judgments and decrees of the trial Court and decreed the plaintiff's suits. In these circumstances the defendants have filed second appeals to this Court.
6. The only point urged in support of these appeals is that the water which used to pass through the defendants' fields to the plaintiff's fields did not flow in stream and was not permanently collected in a pool, tank or otherwise. It has been argued that under Section 17 of the Easements Act no right to surface water not flowing in stream can be acquired by prescription. Learned counsel for the respondent has no quarrel with the legal proposition stated by the learned counsel for the appellants but his submission is that there is amble evidence on the record to show that rain water has been flowing into the defendants' fields from a known and defined channel and passing along their fields onwards into the plaintiff's fields and therefore the plaintiff has acquired by prescription a right to such water which cannot be said to be surface water.
In support of his contention he has relied upon M. Venkataramaniah v. V. Subbaramayya, AIR 1959 Andh Pra 153 wherein it was observed that the main feature of surface water is its inability to maintain its identity and existence as a water body. In this connection the learned Judges of the Andhra Pradesh High Court relied upon certain' observations made in Adinarayana v. Ramudu, AIR 1914 Mad 507 wherein it was held that water flowing into a field from a known channel and passing along the field onwards into another field though not over a confined track in the former field, but along its whole area is not surface water.
7. It has, therefore, to be seen in these appeals whether on the evidence led by the parties it can be said that the water claimed by the plaintiff is in the nature of surface water or the water flowing from a known and defined channel. In this connection it may be relevant to refer to the statement of the defendant Dhanna himself as D.W. 6 who has stated that a 'Nala' is constructed for the flow of rain water coming from the hills, and the depth of that 'Nala' varies from 3' to 5' though he has further stated that the rain water does not flow any further from his field. Again in cross-examination he has stated that the 'Nala' flows at a distance of about 4 paces away from his 'Doli' and is 3 deep near his field.
He was confronted with his previous statement Ex. D. 6 which he had given before the Tehsildar in connection with a dispute between Bhagwandas and Ramnarain father of appellant Shimbhu in the other appeal. In that statement he had stated that there are two fields of the plaintiff and the rain water flows to the plaintiff's fields through the 'Nala' after passing through the fields of Ramnarain and that his field is just opposite to Ramanarain's fields. He has further admitted that in that particular year Shimbhu and Ramnarain had stopped the flow of rain water on account of which the rain water did not reach the plaintiff's fields. In this statement he has admitted in unequivocal terms that there are outlets to water at both the ends through which the rain water passes. He has denied having made such a statement but has, however admitted that he is Dhanna son of Chota Neena, resident of Machadi whose deposition Ex. D. 6 purports to be.
It has not been contended on behalf of the appellant that Dhanna whose statement was recorded before the Tehsildar Ex. D. 6 was a different person. So far as Shimbhu's appeal is concerned there is a judgment inter partes given by the Assistant Collector, Rajgarh, dated 25-10-1949 and a copy of the same has been placed in the other case also and marked Ex. 4. In this judgment it was clearly held that the defendant Shimbhu's father Ramnarain had obstructed the flow of rain water in his fields by raising a 'Doli' which he had no right to do. It was further directed by the Assistant Collector that the obstruction in the shape of 'Doli' raised by Ramnarain may be demolished. It would be interesting to note that Dhanna-appellant in the other case had appeared as a witness in this case, on behalf of the present plaintiff to support the plaintiff's case.
Thus there is good evidence on the record that rain water to which the plaintiff has laid his claim by way of prescriptive easement flows in a known channel along the defendants' fields and further flows to the plaintiff's fields though not over a confined track.
8. It may be observed that in each case the question whether or not particular water is surface water is one of fact to be determined by the circumstances pertaining to its origin and continued existence. In the present case as I have already stated above there is a well-defined existence of water arising from an ascertained course flowing in a denned channel then spreading itself out over the defendants' fields and thereafter leaving the defendants' fields it irrigates the fields of the plaintiff directly. In these circumstances it is not a case of surface water in respect to which no rights could be obtained under Section 17 of the Easements Act. In short, the finding of the lower Court that rain water flowing from the defendant's fields to the plaintiff's fields does not partake of the nature of surface water is correct and, therefore , the learned Addl. District Judge was right in his conclusion that the plaintiff was entitled to get the defendants restrained from obstructing the flow of the rain water to his fields and was also entitled to get a decree for demolition of the 'Dolies' raised by the defendants.
9. These appeals are without force and are hereby dismissed with costs.