JUDGMENT : ( 1. ) IN village Ugdiwada, tahsil and district Seoni, khasra No. 164 (area 5. 32 acres) belongs to the defendant-appellant, which is colloquially called "munda", which means that a part of it remains covered with water. Such part, which is towards the east, comprises of 3. 32 acres and is not fit for cultivation. The western two acres are under cultivation. ( 2. ) TOWARDS the west of khasra No. 164 are other agricultural lands, abadi and a hillock, known as "maltona". Towards the east of khasra No. 164 is khasra No. 165, which is a tank called "neem Talao". ( 3. ) RAIN water flowing from the hillock and the Abadi flows into khasra no. 164, the slope being from west to east and it collects into the depressed part of khasra No. 161 From there, water over-flows into the tank, khasra no 165. This flow of water in one direction from west to east and its ultimate collection in the depression of khasra No. 164, and in the tank khasra No. 165, had been recorded from at least as back the year 1916-17. And, from the water thus collecting in khasra Nos. 164 and 165, the adjoining fields of the plaintiffs and others were irrigated. The right is recorded even in the settlement record of 1916-17 and also in the Wajib-ul-arz and the Nistar Patrak. ( 4. ) ON or about February 3, 1956, the defendant-appellant purchased khasra No. 164. He then made certain embankments in such a manner that the flow of water in khasra Nos. 164 and 165 was obstructed. He diverted the natural course of water so that, instead of collecting in khasra No. 164 and then over-flowing into khasra No. 165, it went into another khasra No. 166/2 and then into a Nala. Consequently, the Munda gradually dried up. This resulted in loss of paddy crop. The plaintiff, therefore, filed the suit from which this appeal arises. He claimed to have acquired the prescriptive right of easement in respect of water and, side by side, claimed to be entitled to exercise the right recorded in the Wajib-ul arz and the Nistar Patrak. He sought a declaration that he had a right to irrigate his lands from the water in khasra nos. He claimed to have acquired the prescriptive right of easement in respect of water and, side by side, claimed to be entitled to exercise the right recorded in the Wajib-ul arz and the Nistar Patrak. He sought a declaration that he had a right to irrigate his lands from the water in khasra nos. 164 and 165 and further claimed an injunction permanently restraining the defendant from obstructing the flow of water into khasra Nos. 164 and 165 and its accumulation thereon and irrigation therefrom. He also claimed rs. 2,300 by way of damages. The defendant denied the plaintiffs claim and contended that his lands being occupied and on a higher level, he was entitled to act in exercise of his incident of ownership of the land to use water flowing from his land for the purposes of cultivation. ( 5. ) THE trial Court held that the plaintiff had the right of irrigation from khasra Nos. 164 and 165 and that the defendant obstructed the water from collecting in khasra No. 164 and then overflowing in khasra No. 165. However, it dismissed the suit holding that the defendant was entitled to intercept water and divert it as it pleased him. The first appellate Court affirmed the judgment of the trial Court. ( 6. ) CHIEF Justice Bishambhar Dayal who, sitting singly, heard the second appeal, found the plaintiff had acquired the right to irrigate his fields from the water in plots Nos. 164 and 165 by prescription under section 15 of the easements Act and also in virtue of local custom within the meaning of section 18 of the same Act. He held that section 17 (c) of the Easements Act was out of the way, inasmuch as water ultimately gets collected in a pool or tank. He, however, declared this to be a fit case for Letters Patent Appeal. Accordingly, the defendant preferred this appeal under clause 10 of the Letters Patent of this Court. ( 7. ) IT was contended before us by the learned counsel for the appellant that even if the respondents have the right to irrigate their fields from the water in khasra No. 164 and from the water in khasra No. 165, the appellant has the right to intercept water before it reaches khasra No. 165 or even before it reaches the depression in khasra No. 164. The argument is that the water, which flows from the hillock and the Abadi and then into the depression in khasra No. 164 and ultimately in khasra No. 165, is surface water; it does not flow in a channel. The appellant is entitled to impound the water in his own field and also intercept it before it enters the western part of his khasra No. 164, as the western part is not burdened with any right of easement. It was further contended that the appellant was under no obligation not to intercept water flowing through his own land. ( 8. ) QUESTIONS that arise are:- (1) Whether the right to water is capable of being acquired as an easement by prescription? (2) What is the impact of section 17 (c) of Easements Act? (3) After the right to water is acquired by prescription, can it be restricted or its exercise be rendered less convenient by doing an act which is otherwise an incident of ownership but which obstructs the water to reach the point where the right of easement is exercised? (4) Can easement relating to water be acquired in virtue of a local custom? (5) Is customary right under section 18 controlled by section 17 of the Easements Act? (6) Is the occupier of the dominant heritage entitled to enjoy the customary easement relating to water without disturbance. (7) What is the meaning of "stream" as used in section 17 (c) of the Easements Act. ( 9. ) IT is beyond doubt and indeed the contrary was not canvassed before us that the right to access and use of water is capable of being acquired by prescription under section 15 of the Easements Act, just as access and use of light or air. If all the ingredients of section 15 are satisfied, the right to access and use of water must be held to have been acquired by prescription, provided the case does not fall under any exception. ( 10. ) SECTION 17 of the Easements Act provides certain exceptions so that when any of the conditions under section 17 exists, the right of easement cannot be acquired by prescription. In respect of water, the clauses applicable are (c) and (d ). The relevant part of the section reads thus:- "17. Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights. In respect of water, the clauses applicable are (c) and (d ). The relevant part of the section reads thus:- "17. Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights. None of the following rights can be so acquired: (a) * * * * (b) * * * * (c) a right to surface-water not flowing in stream and not permanently collected in pool, tank or otherwise; (d) a right to underground water not passing in a defined channel. " (Italics by me) ( 11. ) BEFORE a right of easement can be said to have been acquired by prescription, section 17 must be out of the way. In the present case, clause (d) is inapplicable. ( 12. ) LET us now examine the impact of clause (c) of section 17. It enacts that prescriptive easement cannot be acquired in respect of a right to surface water which does not flow in a stream, or which is not permanently collected in a pool, tank or otherwise. In other words, the right of easement by prescription can be acquired, if water flows in a stream or if water is permanently collected in a pool, tank or otherwise. ( 13. ) THE word "and" in clause (e) was held by Stone, G. J. in Kalanalh v. Wamm Rao (AIR 1937 Nag. 310=1 L R 1937 Nag. 13.), as disjunctive, meaning "or". The correctness of interpretation was not questioned before us. For an analytical understanding of the exception contained in section 17 (c), water may be classified under four categories: (1) Surface water which neither flows in a stream, nor is collected in a pool, tank or otherwise. (2) Water flowing in a stream. (3) Water permanently collected in a pool, tank or otherwise. (4) Water flowing in stream and also permanently collected in a pool, tank or otherwise. ( 14. ) surface water has been succinctly defined by Farnham in his law of Waters and Water-courses, Vol III p. 2556, thus:- "when water appears upon the surface in a diffused state, with no permanent source of supply or regular course, and then disappears by percolation or evaporation, its flow is valuable to no one, and it must be regarded as surface water, and dealt with as such. " (Italics by me.)This definition is simple and precise. [see also Crawford v. Rambo (44 Ohio St. " (Italics by me.)This definition is simple and precise. [see also Crawford v. Rambo (44 Ohio St. 287-7 N E 319.) and Mnab v. Robertson ( (1897) AC 129)]. I shall refer to these cases a little later ( 15. ) THE second category is of water which flows in stream. The connotation of the word "stream" will also be discussed at its appropriate place, when I shall deal with the third aspect of the case. ( 16. ) THE third category of water is when it is permanently collected in a tank, pool or otherwise. Now, under this category, water may come from any source, whether through a stream or not What is required is permanent collection of water. ( 17. ) THE fourth category is a combination of the second and third and it has to be considered only if the word "and in section 17 (c) is read as conjunctive, and not meaning "or". ( 18. ) NOW, so far as the present case is concerned, it undisput-edly falls under the third category inasmuch as water is permanently collected in the depression (3. 82 acres) of Khasra No. 164, which is a pool or like a pool and in the tank khasra No. 165. It is also beyond dispute that the plaintiff had been exercising the right of irrigation from this water for above 20 years. Accordingly, the Single Bench held that the plaintiff had acquired the right of easement by prescription under section 15. ( 19. ) HAVING held so, the learned Chief Justice at once entered into the question whether the defendant could use his land so as to prevent water reaching the tank. Now, the water which is permanently collected in tank, Khasra no. 165 or in the pool (depression) in khasra No. 164, in respect of which the plaintiff had acquired the right of easement, actually comes from the hillock and the Abadi. That water, flowing from west to east and after passing through the western part (2 acres) of khasra No. 164, remains collected itself in the eastern part of khasra No. 164 and in the tank, khasra No. 165. He held that the defendant could not prevent water from being accumulated in khasra nos. 164 and 165 in the usual course of nature. He held that the defendant could not prevent water from being accumulated in khasra nos. 164 and 165 in the usual course of nature. It was urged that it is an incident of ownership to use and divert water as the owner pleases when it reaches his land or before it reaches it. As a general proposition, there can be no quarrel with it. It is indeed the right of the owner to prevent water from coming on his land, if he does not require it, or to use it as he pleases when it reaches his land. But the real question is whether he can dp so in such a manner as to restrict the right of easement or to render its exercise less, convenient when it has been acquired by another person by prescription. The question must be answered in the negative and such answer will be fully supported by section 27 of the Easements Act, which enacts that the servient owner must not do any act tending to restrict the easement or to render its exercise less convenient. By obstructing water at the western end of khasra no. 164, the defendant prevents it from reaching the eastern part of khasra no. 164, and the tank khasra No. 165, from where the plaintiff received water for irrigating his fields. In this connection, it is argued that the defendant can only be restrained from constructing any embankment, or otherwise preventing the water from being taken by the plaintiff after it has entered the depression in khasra No. 164, and the tank khasra No. 165, but the defendant cannot be restrained from intercepting the water before it enters the said depression or the tank. This argument could not commend itself with the learned Chief Justice, who held:- "if this were permitted, it could not be difficult to defeat every easement. What cannot be done directly by preventing the taking of water can also not be done by preventing water being accumulated in the usual course of nature." The obligation imposed on the servient owner is based on the principle of equity and justice that no one should exercise his right in such a way as would interfere with the exercise of the right of easement by others. Section 27 protects the right of easement from being defeated. Section 27 protects the right of easement from being defeated. It must be remembered 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. He could create obstacles and intercept or divert water as he pleased in exercise of his own right of ownership and as an incident of it. But having allowed the plaintiff a long, continued and uninterrupted user for over 20 years, the defendant cannot raise a cry that it is his incident of ownership to intercept water from reaching khasra No. 165 or 164. Prescription is "a title taking his substance of use and time allowed by the law". (See Peacock on Law Relating to Easements. 2nd. Edition, p. 405 ). It is founded on utility rather than on equity. (Per Lord Blackburn in Dalton v. Angus (6 A C 740. ). In the roman Law it was called "usucapion". The Romans defined it as "adjectio domini per continuation empossessionis temporise lege definite. " As Lord Blackburn said, this mode of acquisition is as old as right of property itself. Its traces are found in the laws of every nation with various modifications due to its natural growth and development in the special circumstances of each nation. The same is the case where a person prescribes title by adverse possession of more than 12 years. The owner cannot thereafter disturb his possession saying that it is an incident of his ownership to oust the trespasser. That was indeed so, until the person in adverse possession had not acquired title by prescription. But once the period of prescription expires, the owner loses his right of ouster. ( 20. ) IN short, the incident of ownership was there. It could be exercised by preventing water from flowing into khasra No. 165 or 164 so that the plaintiff could not irrigate his fields from that water. But having allowed the plaintiff to acquire the right of easement by prescription, the defendant must not do any act tending to restrict the easement or to render its exercise less convenient. The law of easement goes a step further. Section 32 enacts:_ "the owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person". The law of easement goes a step further. Section 32 enacts:_ "the owner or occupier of the dominant heritage is entitled to enjoy the easement without disturbance by any other person". The following is the statutory illustration under this section :- "a, as owner of a house, has a right of way over Bs tend. C unlawfully enters on Bs land, and obstructs A in his right of way. A may sue C for compensation not for the entry, but for the obstruction. " This section recognises the right of easement as a right in rem. It is attached to the land and is as such a good subject for legal protection as arty other right of property. It declares unlawful any act of any person which causes disturbance or obstruction in the enjoyment of an easement. It confers by express words the right on the owner or occupier of the dominant heritage to enjoy the easement without disturbance by arty other person. ( 21. ) THIS should be the end of this appeal. Upholding the decision of the Single Bench, I would dismiss this appeal. ( 22. ) HOWEVER, I am prepared to examine this case under the fourth category as well. But before I do so, I shall deal with this case as regards customary easement. ( 23. ) APART from the right of prescriptive easement, the Single Bench upheld the plaintiffs claim on the basis of customary easement in the light of section 18 of the Easements Act. The plaintiffs case is clearly within that section, which recognises customary easement. It may be acquired in virtue of a local custom. Customary right is a public right annexed to the place in general. It belongs to no individual in particular. The right has for its source the particular custom prevailing in a locality. ( 24. ) IN the settlement entry of 1916-17 (Ex. P-7), it is recorded that the plaintiffs fields and several other fields are irrigated from khasra Nos. 164 and 165. The Nistar Patrak (Ex. P-8) for the year 1955 shows khasra Nos. 164 and 165 as "munda" and in it are entered those khasra numbers which are irrigated from the former. In the Wajib-ul-arz (Ex. P-9) for the year 1955 also, similar entries are made. It is not in dispute that khasra No. 165 is a public tank. ( 25. The Nistar Patrak (Ex. P-8) for the year 1955 shows khasra Nos. 164 and 165 as "munda" and in it are entered those khasra numbers which are irrigated from the former. In the Wajib-ul-arz (Ex. P-9) for the year 1955 also, similar entries are made. It is not in dispute that khasra No. 165 is a public tank. ( 25. ) THE Nistar Patrak contains a scheme of management of unoccupied land in a village. (Section 219 of the M. P. Land Revenue Code, 1954, which was then in force ). In the Wajib-ul-arz are recorded the customs with regard to any right to irrigation or right of way or any right of other easement, or the right to fishery in any land or water not belonging to or controlled or managed by the State Government or a local authority. (See section 225 of the 1954 code ). Thus, the Nistar Patrak enumerates the rights of the inhabitants of a village in the land belonging to the State Government, while the Wajib-ul-arz records the customary rights on the lands of other tenure holders. Wajib-ul-arz is "land record" as defined in section 2 (10) of the 1954 Code. Under subsection (3) of section 225 of the Code any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record, institute a suit in a civil Court to have such entry cancelled or modified. And, sub-section (4) declares that subject to the decision of the civil court in such a suit, the record made under sub-section (1) shall be final and conclusive. Section 225 of the Code may be reproduced here:- "225 (1) As soon as may be after this Code, comes into force, the Deputy Commissioner shall, in the prescribed manner, ascertain and record the customs in each village in regard to- (a) the right to irrigation or right of way or other easements; (b) the right to fishing; in any land or water not belonging to or controlled or managed by the State Government or a local authority and such record shall be known as the wajib-ul-arz of the village. (2) The record made in pursuance of sub-section (1) shall be published by Deputy commissioner in such manner as may be prescribed. (2) The record made in pursuance of sub-section (1) shall be published by Deputy commissioner in such manner as may be prescribed. (3) Any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record under sub-section (2), institute a suit in a civil court to have such entry cancelled or modified. (4) The record made under sub-section (1) shall, subject to the decision of the civil court in the suit instituted under sub-section (3) be final and conclusive x x x x x" The finality and conclusiveness attached to an entry in the wajib-ul-arz makes it unrebuttable. It cannot be questioned except as provided in sub section (3 ). Once a wajib-ul-arz is prepared, no Court can go behind, it. . The entry is accepted till it is set aside or modified by a civil Court. [see Chhote Khan v. Malkhan ( AIR 1954 SC 575 .)]. It is true that the wajib-ul-arz does not create, any,title; it, however, raises a strong presumption in its support. [see Raja, Rajinder Chand v. Sukhi ( 1956 SCR 889 .)]. The burden lies on the person seeking to get over the. , binding effect of the custom recorded in the wajtb-ul-arz, to show that the custom has been modified by contractor otherwise. (Per Ajodhya Prasad v. Karan (AIR 1919 Nag. 117. ).) When there is a right recorded in the Wajib-ul-arz, it is not necessary to prove it by any other evidence. It is for the other side to get over its effect. ( 26. ) SINCE the right of customary easement of fields being irrigated from khasra Nos. 164 and 165 is recorded in the Nistar Patrak and the Wajib-ul-arz, an action will lie by any inhabitant of the village for the infringement of the light without proof of special damage. It is also clear that section 17 of the Easements Act merely controls section 15, under which prescriptive rights are acquired. Customary right in virtue of a local custom under section 18 is not controlled by section 17. The exceptions contained in the latter section cannot be engrafted on section 18. ( 27. ) THE right under section 18 also is protected by section 32 of the Act. It is not confined to easement by prescription. ( 28. Customary right in virtue of a local custom under section 18 is not controlled by section 17. The exceptions contained in the latter section cannot be engrafted on section 18. ( 27. ) THE right under section 18 also is protected by section 32 of the Act. It is not confined to easement by prescription. ( 28. ) THIS brings me to the third aspect of the case, which the learned chief Justice thought not necessary to consider. The discussion which I am now entering into relates to the fourth of the categories of water enumerated earlier. The peculiarity of this case is that water flowing from the hillock and the Abadi flows in a stream and is then collected in a pool and tank. It was this aspect of the case on which much emphasis was laid by the learned counsel for the appellant. Indeed, it is quite separate and cannot be mixed with the second category, with which I have already dealt and on which the single Bench decreed the plaintiffs claim, that is, when the case falls under category No. (2) independently of category No. (3 ). For the purposes of this aspect of the case, the connotation of the word "surface water" and the meaning of the word "stream" have vital importance. I can do no better than to repeat the concise and precise definition of surface water from Farnham on, "law of Waters and Water-courses", Vol. Ill, page 2556:- "when water appears upon the surface in a diffused state, with no permanent source of supply or regular course, and then disappears by percolation or evaporation, its flow is valuable to no one, and it must be regarded as surface water, and dealt with as such. " So also I cannot do better than to quote the definition of the word "stream" given by Lord Watson in Mnab v. Robertson (supra):- " stream in its primary and natural sense denotes a body of water having as such body a continuous flow in one direction. It is frequently used to signify running water at places where its flow is rapid as distinguished from its sluggish current in other places. It is frequently used to signify running water at places where its flow is rapid as distinguished from its sluggish current in other places. " Thus, the real distinction lies in this "the Chief characteristic of surface water is its inability to maintain its identity and existence as a water body________ Well defined existence arising from an ascertained course appears to be the real test in coming to a conclusion against any body of water being regarded as merely surface water. " (See Farnham on "law of Water and Water-courses", Vol. Ill, p. 2556 ). Thus, where water flows as a body of water continuously in one direction, it must be said to be running in a stream. What is required is that there must be a definite or defined course as contra-distinguished to haphazard dissipation, but it is not necessary that there must be a confined channel. When water flows in one direction in a defined course, naturally it cuts the earth more or less. Stream is not necessarily one when it is confined in an artificial channel. A stream, as Lord Watson said, may be natural or artificial. This distinction was brought out in Crawford v. Rambo, quoted in Farnham at page 2556 (supra) thus : "surface water is that which is diffused over the surface of the ground, derived from falling rains and melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does, flow with other waters, whether derived from the surface or springs; and then it becomes the running water of a stream, and ceases to be surface water. " ( 29. ) LORD Watson, in Mnab v. Robertson (supra), also brought out the distinction in these words:- "water, whether falling from the sky or escaping from a spring, which does not flow onward with any continuity of parti, but becomes dissipated in the earths strata, and simply percolates through or along those strata, until it issues from them at a lower level through dislocation of the strata or otherwise, cannot with any propriety be described as a stream. " See also 93 Corpus Juris Secondum paragraph 112 at page 799. A stream need not necessarily be artificial; it may be natural. An artificial stream is one which has an artificial source of supply and flows through an artificial course. " See also 93 Corpus Juris Secondum paragraph 112 at page 799. A stream need not necessarily be artificial; it may be natural. An artificial stream is one which has an artificial source of supply and flows through an artificial course. A natural stream flows by operation of nature only, that is, in the natural course. The course of water may not be through a confined track. Thus, where water flows in a definite course into the upper land, spreads itself over the whole field, which is irrigated from it and then flows into another field, it is stream ; and it does not lose its character merely because it spreads over a large area, provided that it remains identifiable as water of that stream. ( 30. ) THE present case should afford an excellent illustration to the above definition. Here, water flowing from the hillock and the Abadi runs as a body of water having a continuous flow in one direction, that is, from west to east. Running in a continuous flow, the body of water enters Khasra No. 164, flows through it so as to reach its destination, the depression of that Khasra, and then overflows into Khasra No. 165. The water flowing from the hillock and the abadi, as a body of water and having a continuous flow in one direction must be called a stream. The following quotation from Farnham at the same page 2556, again fully fortifies the view I take :- "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 at 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. " Here, it is subsequently gathered together into a tank. ( 31. ) THE law has been elaborately and fully discussed in Adinarayana v. Ramudu (AIR 1914 Mad. " Here, it is subsequently gathered together into a tank. ( 31. ) THE law has been elaborately and fully discussed in Adinarayana v. Ramudu (AIR 1914 Mad. 507 (311 ).), where the following rule stated by Domat was quoted: - "if waters have their course regulated from one ground to another, whether it be by the nature of the place, or by some regulation, or by a title, or by an ancient possession, the proprietors of the said grounds cannot innovate anything as to the ancient course of the water. Thus, he who has the upper grounds cannot change the course of the waters, either by turning it some other way, or rendering it more rapid, or making any other change in it to the prejudice of the owner of the lower grounds. " (Italics by me) ( 32. ) IN the present case, the position would have been quite different if water had not been flowing continuously in one direction (from west to east only) as a body of water from the hillock and the abadi into the defendants field, Khasra No. 164, before it entered the depression of that Khasra and then into Khasra No. 165. If water had not been flowing continuously as a body from the hill and the abadi, but merely falling from the sky or otherwise appearing on Khasra No. 164 and then entering the depression and the tank, the matter would have been different. ( 33. ) THE cases of Rawstron v. Taylor ( (1855) 156 E R 873.), Broadbent v. Rambatham ( (1856) 25 LJ Ex. 115.) and Chesemore v. Richards ( (1858) HER 140.), the former two were approved in Grand Junction Canal Co. v. Shugar ( (1871) 6 L R 483.), where Chesemore v. Richards (supra) was referred to and Manturabai v. Ithal Chiman (AIR 1954 Nag, 103.); J. D. Robinson v. Ayya Krishnama ( (1872) 7 Mad. HCR 37.) ; Dharnidhar v. Bhagirathi (AIR 1956 Orissa 89.); arid Perumal v. Ramasami (ILR 11 Mad. 16.), are clearly distinguishable, in the above light. As Lord Shand said in Mnab v. Robertson (supra):- "the term stream necessarily means flowing water, and not water which oozes from a piece of marshy ground, and that unless water flows more or less in a continuous channel, and continuously, it cannot be described as water that flows in streams leading to the ponds. As Lord Shand said in Mnab v. Robertson (supra):- "the term stream necessarily means flowing water, and not water which oozes from a piece of marshy ground, and that unless water flows more or less in a continuous channel, and continuously, it cannot be described as water that flows in streams leading to the ponds. " In the present case, water does not ooze from a piece of marshy ground. Here, water flows in one and the same direction and continuously as a body of water. ( 34. ) IN Broadbent v. Rambatham (supra), rain water from the hills collected in the defendants farm. In that case, there was no continuous flow of water as a body of water in one direction. ( 35. ) IN Grand Junction Canal Co. v. Shugar (supra), Lord Hatherley, while pointing out the distinction between surface water and water flowing in a stream, described the former as:- "water which comes none knows exactly whence; and flows no one knows exactly how, either underground or on the surface, unconfined in any chanal either as rain fall or from, springs of the earth, which may vary from day to day, or spring up from beneath the surface in a direction which no one knows. " The present case is certainly not within the above test. On the contrary, everyone knows exactly whence water comes and how it flows in only one direction, that is, from west and east. Lord Hatherley further said in the above case:- "you are not by your operation, or by any act of yours, to diminish the water which runs in this defined channel, because that is not only for yourself, but for your neighbours also, who have a clear right to use it, and have it come to them unimpaired in quality and undiminished in quantity. That appears to me to be clearly the course which the Local Board have taken, and, therefore, they have clearly and plainly given ground for the injunction. " ( 36. ) ACCORDING to Taylor v. Corporation of St. Helens ( (1877) 6 Ch. D 264 (C A ).) also, water which runs in a defined course is a stream of water. Here, the course is defined and regulated. Every year water flows in the same tract. The flow is continuous and in one direction as a body of water. ( 37. Helens ( (1877) 6 Ch. D 264 (C A ).) also, water which runs in a defined course is a stream of water. Here, the course is defined and regulated. Every year water flows in the same tract. The flow is continuous and in one direction as a body of water. ( 37. ) THE position of the law as enacted in section 17 (c) of the Easements Act is undoubtedly this. If on my field water falling from the sky or from a contiguous hillock or from melting snow remains there temporarily for some time and then evaporates or becomes dissipated in the earths strata, it is just surface water, so that even if you have been using such water from my field for a hundred years, you will not acquire by prescription an easementary right. On the other hand, if there is water coming from elsewhere, as a body of water in one direction, through my field, it is flowing in a stream, so that if you have had access to such water and used it openly, peaceably, uninterruptedly and as of right for above 20 years, you have acquired a prescriptive easement. I cannot then prevent you from its access or use, nor will the law allow me to do anything directly or indirectly, which will restrict or render less convenient the exercise of your easementary right. I could do so before you prescribed the right, but not afterwards. ( 38. ) IN the present case, the hillock and the abadi are quite distant from the defendants field (Khasra No 164); there are several other fields in between. It is not disputed before us that water from the hillock and the abadi flows all that long distance onwards, in one direction (west to east) continuously, as a body of water, and enters Khasra No 164, flows through that field from west to east, gets collected in the eastern depression of that field (Khasra No. 164) and then overflows in the tank (Khasra No. 165 ). Water had been flowing like this for at least more than 40 years. It did not flow helter skelter; it flowed in one direction and maintained its course always. It was not as if in one year it would flow through Khasra No. 164 and in another year through Khasra No. 166. Water had been flowing like this for at least more than 40 years. It did not flow helter skelter; it flowed in one direction and maintained its course always. It was not as if in one year it would flow through Khasra No. 164 and in another year through Khasra No. 166. This could not be so if water had been flowing in a defined course. All the elements to constitute a stream are satisfied. It is stream fully within the classic definition given by Lord, Watson (supra ). ( 39. ) I am clearly of the opinion that the water coming from the hillock, and the abadi to the west of Khasra No. 164, and then flowing into Khasra no. 164 and ultimately overflowing in Khasra No. 165 is water "flowing in a stream" within the meaning of section 17 (c) of the Easements Act. For ages water has been flowing onwards with continuity of parts, as a body of water in one direction only and having its own course from one ground to another. Section 17 (c) of the Easements Act is, therefore, out of the way. On this aspect of the case by itself and independently of the other two aspects which were considered by the Single Bench, the plaintiff is entitled to all the reliefs granted by the Single Bench in the second appeal, as the case is outside section 17 (c), and here also sections 27 and 32 will operate, as shown above, ( 40. ) THE questions framed at the outset may be answered thus:- (1) The right to access to and use of water is capable of being acquired as an easement by prescription. (2) The impact of section 17 (c) of the Easements Act, is that the right of easement in respect of water, which flows, as a body of water, continuously in one direction, can be acquired by prescription. But the right of easement cannot be acquired by prescription in respect of water, which neither flows in a stream, nor is permanently collected in a pool, tank or otherwise. (3) Once such right of easement is acquired by prescription, it cannot be restricted, nor its exercise can be rendered less convenient, by doing an act which may otherwise be an incident of ownership, but which obstructs the water to reach the point where the right of easement is exercised. (3) Once such right of easement is acquired by prescription, it cannot be restricted, nor its exercise can be rendered less convenient, by doing an act which may otherwise be an incident of ownership, but which obstructs the water to reach the point where the right of easement is exercised. (4) Easement relating to water is capable of being acquired in virtue of a local custom. (5) The customary right of easement under section 18 is controlled by section 17 of the Easements Act. (6) The occupier of the dominant heritage is entitled to enjoy the customary easement relating to water without disturbance by anyone. (7) The word "stream" as used in section 17 (c) of the Easements act denotes a body of water, having as such body a continuous flow in one direction. Well defined existence arising from an ascertained course is the real test. On the other hand, water, whether falling from the sky or escaping from a spring, which does not flow onward with any continuity of parts, but becomes dissipated in the earths strata, will not be a stream. In each case, the question whether or not particular water is surface water, has to be determined by the circumstances attending its origin and continued existence. ( 41. ) EXAMINED from any of the three angles, the judgment of the learned Chief Justice must be upheld. ( 42. ) THE appeal is dismissed. Parties shall bear their own costs. This appeal under Clause 10 of the Letters Patent has been preferred by the defendant against the judgment and decree of the High court dated 9th September 1971 in Second Appeal No. 360 of 1966 which was heard and decided by Bishambhar Dayal, C. J. , sitting singly. ( 43. ) THE relevant facts are that the plaintiffs are holders of Khasra " nos. 170, 172/1, 172/2ka, 172/2kha, 173 and 174 (total area 40. 55 acres) in village Ugdiwada in Bhumiswami rights. These lands lie towards the east of khasra Nos. 164 and 165. Khasra No. 165 is a tank vested in the Government. Khasra No. 164 is held by the defendant as Bhumiswami. In the revenue papers Khasra No. 164 is entered as munda meaning land partly under cultivation and partly under water. Towards the west of khasra Nos 164 and 165 are other agricultural lands, abadi and a hill known as Maltoria. Khasra No. 165 is a tank vested in the Government. Khasra No. 164 is held by the defendant as Bhumiswami. In the revenue papers Khasra No. 164 is entered as munda meaning land partly under cultivation and partly under water. Towards the west of khasra Nos 164 and 165 are other agricultural lands, abadi and a hill known as Maltoria. The slope is from west to east. Rain water from the hill and abadi lands lying towards, the west flows towards the east. This water used to collect first in a depression towards the eastern side of Khasra No. 164 and then overflows in khasra No. 165. The plaintiffs and their predecessors irrigated their fields for more than twenty years from the water collecting in Khasra Nos. 164 and 165. This right is recorded in the settlement papers of the year 1916-17 (Ex. P-7) as also in Nistar Patrak and Wazib ul arz prepared in 1955 (Exs. P-8 and P-9 ). The area of khasra No. 164 is 5. 32 acres. Out of this, 3. 32 acres are entered as gair Mumkin Pani in the settlement papers of the year 1916-17 (Ex. P-10 ). gair Mumkin Pani means that the land is not fit for cultivation as it remains under water. The remaining two acres of khasra No. 164 are shown to be under cultivation in the settlement. As already stated, the slope is from west to east. The portion of Khasra No. 164 where water used to collect is towards the east on which side there is a depression surrounded by an embankment and this portion is in the nature of a tank. The western portion of Khasra No. 164 used to be under cultivation. During the years 1957 to 1959 the defendant constructed certain embankments towards the west in Khasra No. 164 and gradually increased their height, the result of which was that water did not flow towards the depression in Khasra No 164 and the submerged area was considerably reduced. Further, the tank in Khasra No. 165 also became dry as there was no overflow of water from the depression in Khasra No. 164 to Khasra No. 165. As the plaintiffs could not irrigate their fields, they suffered loss of paddy crop. ( 44. Further, the tank in Khasra No. 165 also became dry as there was no overflow of water from the depression in Khasra No. 164 to Khasra No. 165. As the plaintiffs could not irrigate their fields, they suffered loss of paddy crop. ( 44. ) THE plaintiffs commenced the suit which has given rise to this appeal in the year 1960 claiming un-obstructed flow of rain water in Khasra nos. 164 and 165, right of irrigation from the water collecting in these khasra numbers and damages amounting to Rs. 2,300/ -. The plaintiffs claim was based on prescription and Wajib-ul-arz. ( 45. ) THE trial Court held that there was no stream or channel through which the rain water flowed and the water flowing in Khasra No. 164 was surface water and no right of easement could be claimed in respect of that water before it actually collected in the depression or tank towards the eastern side of Khasra No. 164 It was also held that the defendant was entitled to intercept that water on the western side of Khasra No. 164 before it entered the depression on the eastern side. It was further held that although the plaintiffs had the right to irrigate their fields from the water collecting in the depression of Khasra No. 164 and the tank in Khasra No. 165, this right could not be said to be infringed if the water was intercepted before it reached the depression. On these findings, the trial Court came to the conclusion that the plaintiffs suffered no injury and the suit was accordingly dismissed. The findings of the trial Court were also upheld in first appeal. In addition, it was also held that Khasra No. 164 was occupied land and the defendant could use his land For agricultural purposes. ( 46. ) THE learned Chief Justice in second appeal came to the conclusion that the plaintiffs have acquired the right both under local custom as well as by prescription to irrigate their fields from the water collecting in the tank of khasra Nos. 164 and 165. In his opinion section 17 (c) of the Easements Act, 1882 was not applicable as the water permanently collected in a tank. He further held that the defendant could not use his lard so as to prevent the water reaching the tank. 164 and 165. In his opinion section 17 (c) of the Easements Act, 1882 was not applicable as the water permanently collected in a tank. He further held that the defendant could not use his lard so as to prevent the water reaching the tank. On these findings the plaintiffs were held entitled to the following reliefs: " (1) Declaration of their right to irrigate fields Nos. 170,172/1,172/2, 173 and 174 total area 40. 55 acres from the tank in Plots Nos. 164 and 165; (2) a decree for injunction restraining the defendant from preventing rain water from collecting in the tank, area 3. 32 acres in plot No. 164 and plot No. 165; and (3) a decree for damages as may be found by the Court which the plaintiffs have suffered on account of the unauthorised acts of the defendant." ( 47. ) A perusal of the judgment of the learned Chief Justice will show that he has not differed from the findings reached by the Courts below that the rain water that comes from the hill, abadi and lands lying towards the west does not flow in a defined course or channel. The learned Chief Justice has excluded the operation of section 17 (c) of the Easements Act on the ground that in the instant case "it is water which permanently collects in pool or tank. " it is also clear that the learned Chief Justice does not hold that the whole of khasra No. 164 is a tank. In the statement of facts in paragraph 1 of his judgment he has accepted that only 3. 32 acres of this land remains under water. Further, clause (2) of the decree passed by him specifically refers to "the tank area 3. 32 acres in plot No. 164. . . . . . . . "i have already stated that in the settlement papers (Ex. P-10) only 3. 32 acres of Khasra No. 164 are shown to be under water and the remaining two acres are shown under cultivation. This fact that only 3. 32 acres of Khasra No. 164 used to remain under water is also admitted in the plaint in paragraph 4 (d ). This appeal has, therefore, to be decided on the facts that there is no defined channel through which the water flowed from west to east in Khasra No. 164 and that only 3. This fact that only 3. 32 acres of Khasra No. 164 used to remain under water is also admitted in the plaint in paragraph 4 (d ). This appeal has, therefore, to be decided on the facts that there is no defined channel through which the water flowed from west to east in Khasra No. 164 and that only 3. 32 acres of this land lying towards the east is in the form of a tank where water used to collect. ( 48. ) THERE can be no doubt that the plaintiffs have established that they and their predecessors have been irrigating their fields for more than twenty years from water of the tank in Khasra Nos. 164 and 165. As already stated, this right is also recorded in the Wajib-ul-arz prepared under section 225 of the madhya Pradesh Land Revenue Code, 1954. The plaintiffs, therefore, have the right both as an easement and as a matter of local custom recorded in the wajib-ul-arz to irrigate their fields from the water collecting in the tank of khasra Nos. 164 and 165. But the whole of Khasra No. 164 is not a tank. I have already stated that the learned Chief Justice has accepted that only 3. 32 acres of Khasra No. 164 constitute tank and that this is also the position accepted by the plaintiffs. The plaintiffs right to irrigate their lands is, therefore, limited to the water collecting in 3. 32 acres of Khasra No. 164 and its overflow in Khasra No. 165. ( 49. ) THE real controversy between the parties is whether the defendant can obstruct the flow of water towards the tank area 3. 32 acres in Khasra no. 164 by constructing embankments in the remaining portion of Khasra no. 164 which lies at a higher level towards the west. Now, the Wajib-ul-arz does not record that the defendant or any other upper proprietor has no right to intercept the water flowing over their lands which, if not intercepted, may ultimately find its way in the tank in Khasra No. 164. The plaintiffs, therefore, cannot claim on the basis of Wajib-ul-arz that the defendant cannot intercept the water before it reaches the tank. The plaintiffs, therefore, cannot claim on the basis of Wajib-ul-arz that the defendant cannot intercept the water before it reaches the tank. The question then is, whether the plaintiffs have acquired the right by way of easement to prevent the defendant in intercepting or impounding the water on the western side of Khasra No 164 so that it may reach the tank on the eastern side of Khasra No. 164? In this context it is argued that, though the water from the hill, abadi and other lands lying on the west flows into the western portion of Khasra No. 164 not in a defined channel but because of the natural slope of the lands, yet it should be held to be water flowing in a stream and not surface water and hence subject to prescriptive right of easement ( 50. ) THE principles bearing upon the question involved have been settled in a number of cases both English and Indian. To begin with the English cases, in Rawstorn v. Taylor ( (1855)156 E R 873.) the lands of the plaintiff and defendant were contiguous. Water from a wet springy spot outside the defendants land flowed down the slope of the land from the defendants land to the plaintiffs land In times of wet great body of water flowed down and in times of drought there was hardly any. The water so flowing ran into an old watercourse of the plaintiff which led into a reservoir of the plaintiff. The water had so flowed for upwards of twenty years. The defendant for the purpose of draining his land and of supplying some part of his property with water diverted the water flowing over his land to the plaintiffs land. In an action for damages it was held that the plaintiff had no cause of action as it was a case of surface water and the defendant could get rid of it in any manner he liked. The following passages from the judgments of the learned Barons are relevant for our purposes: "parke, B.-This is the case of common surface water rising out of springy or boggy ground, and flowing in no definite channel, although contributing to the supply of the plaintiffs mill. This water having no defined course, and its supply being merely casual, the defendant is entitled to get rid of it in any way he pleases. This water having no defined course, and its supply being merely casual, the defendant is entitled to get rid of it in any way he pleases. " (P. 880) "platt, B.-The defendant is clearly entitled to succeed, as this was merely surface water, and the defendant had a right to drain his land, and the plaintiff could not insist upon the defendant maintaining his fields as a mere water tablo. " (p. 881) "martin, B.-The defendant is entitled to succeed. He is at liberty to get rid of the surface water in any manner that may appear most convenient to him; and I think that no one has a right to interfere with him, and that the object he may have in so doing is quite immaterial. " (p. 881)This case shows that water flowing from the land of upper proprietor to the land of lower proprietor is surface water if it does not flow in a defined channel, although it has its origin from a source outside the land of the upper proprietor and the upper proprietor is entitled to utilise or drain off this water in any manner he likes and the lower proprietor cannot complain even if he has been enjoying the flow of water for more than twenty years. The same rule was applied in Broadbent v. Ramsbotham ( (1856) 165 E R 971. ). The defendant in this case was owner of a farm at the foot of a hill. Rain water from the hills collected in a shallow pond in the defendants farm and overflowed into a brook known as Long wood brook. The plaintiffs mill had existed on the side of the brook for more than fifty years and the water of the brook had been used for all these years for working the mill by water power. The defendant by draining the pond prevented the supply of water to the brook. The plaintiff complained that his right to receive water from the brook was affected by the defendants acts. The defendant by draining the pond prevented the supply of water to the brook. The plaintiff complained that his right to receive water from the brook was affected by the defendants acts. Alderson, B. , in delivering his judgment for the defendant observed: "the right to the natural flow of the water in Long wood Brook undoubtedly belongs to the plaintiff; but we think that this right cannot extend further than a right to the flow in the brook itself, and to the water flowing in some defined natural channel, either subterranean or on the surface, communicating directly with the brook itself. No doubt, all the water falling from heaven and shed upon the surface of a hill, at the foot of which a brook runs, must, by the natural force of gravity, find its way to the bottom, and so into the brook; but this does not prevent the owner of the land on which this water falls from dealing with it as he may please and appropriating it. He cannot, it is true, do so if the water has arrived at and is flowing in some natural channel already formed. But he has a perfect right to appropriate it before it arrives at such a channel. In this case a basin is formed in his land, which belongs to him, and the water from the heavens lodges there. There is here no water course at all. If this water exceeds a certain depth it escapes at the lowest point, and squanders itself (so to speak) over the adjoining surface. The owner of the soil has clearly a right to drain this shallow pond and to get rid of the inconvenience at his own pleasure. We have no doubt, therefore, that, as to this source of feeding the Long wood brook, the plaintiff has no title. " It is to be noticed that water flowing over the surface of the land was held to be surface water before it reached the brook or some channel leading to the brook and the owner of the land over which the water flowed was held entitled to get rid of it at his pleasure. The cases of Rawstron v. Taylor and Broadbent v. Ramsbotham (supra)were approved by the House of Lords in Chasemore v. Richards ( (1859) 11 ER 140.) which was a case relating to subterranean water. The cases of Rawstron v. Taylor and Broadbent v. Ramsbotham (supra)were approved by the House of Lords in Chasemore v. Richards ( (1859) 11 ER 140.) which was a case relating to subterranean water. Lord Chelmsford, L. C. in his speech after referring to these cases, said that they apply to surface water not flowing in a defined channel but the principles they establish are equally applicable to subterranean water of similar character (see pp. 150 and 151 of 11 ER. ). Then in Grand Junction Canal Go. v. Shugar ( (1871) 6 L. R. Chancery Appeals 483.), Lord Hatherley, L. C. after referring to Chasemore v. Richards (supra) reiterated the distinction between surface water and water confined in a regular channel. He said: "the distinction was there drawn and, I should have thought, firmly established between water which comes no one knows exactly whence, and flows no one knows exactly how, either underground or on the surface, unconfined in any channel, either as rainfall or from springs of the earth, which may vary from day to day, or spring up from beneath the surface in a direction which no one knows between that species of water and water once confined in a regular channel. " (pp. 486,487.)It was held in that case that although a land owner will not in general be restrained from drawing off the subterranean waters in the adjoining land yet he will be restrained if, in so doing, he draws off the water flowing in a defined surface channel. ( 51. ) AS to the meaning of the word stream reference is made to two cases in Words and Phrases (2nd Edition) Vol. 5, p. 124. These cases are taylor v. St. Helens Corpn. ( (1877) 6 Ch. D 264 (CA ).), Mnab v. Robertson ( (1897) AC 129. ). In Taylor v. St. Helens Corpn. (supra) the question related to the construction of a grant made by the plaintiff Taylor in favour of the defendant Corporation. The grant was in respect of a water-course and "several springs or streams of water flowing into or feeding the said watercourse". ). In Taylor v. St. Helens Corpn. (supra) the question related to the construction of a grant made by the plaintiff Taylor in favour of the defendant Corporation. The grant was in respect of a water-course and "several springs or streams of water flowing into or feeding the said watercourse". The watercourse was for the most part supplied by springs, but after heavy rain a quantity of surface water came down which the watercourse was insufficient to carry of Taylor had made weirs with channels to carry of such surplus water, which was conducted into a dam or reservoir belonging to him. The defendant subsequently started making constructions in the watercourse so as to enlarge it, the effect of which would have been to carry much greater amount of water than formerly passed. Taylor and his lessees of reservoirs, where the surface water which escaped over the weirs collected, instituted the action to restrain the Corporation from carrying out the alteration in the watercourse. The action was decreed by the Vice Chancellor and that decree was upheld by the Court of Appeal. It was held that the grant was a grant of the watercourse as it existed of the definite springs and streams on the land, of such other water as should find its way into and run down the channel of the watercourse and not a grant of all the water on the land and the grantee had no right to alter the watercourse so as to enable it to carry off all the water that ran into it in times of heavy rains. It will be seen that the words of grant "several springs or streams flowing into the said watercourse" were not construed to include the surface water which came down to the watercourse during rains. Jessel, M. R. , in that context said: "a stream of water, in law, is water which runs in a defined course. " in Mnab v. Robertson (supra) the question related to the construction of a lease which demised certain land with two ponds "together with right to the water in the said ponds and in the streams leading thereto. " In addition to a stream flowing in the ponds, water percolated in the lower pond from an adjacent marshy ground of the lessor. " In addition to a stream flowing in the ponds, water percolated in the lower pond from an adjacent marshy ground of the lessor. This water from the marshy ground, which did not flow in any defined channel to the pond, was impounded by the lessor by constructing a tank. The House of Lords held that water percolating through the ground towards the pond was not water in any stream covered by the lease. In that connection Lord Watson said : "the word stream in its primary sense, denotes a body of water having as such body a continuous flow in one direction. " (P. 134 ). It is not possible to read the above passage from the speech of Lord watson to mean that water which does not flow in any channel can be called "stream" in the context of the law relating to water rights. This is clear from the concurring speech of Lord Shand where he said : "i think that the term streams necessarily means flowing water and not water which oozes from a piece of marshy ground and that unless water flows more or less in a channel and continuously, it cannot be described as water that flows in streams. . . . . . . . . " (P. 138)The cases of Taylor v. St. Helen Corporation and Mnab v. Robertson (supra) go to show that unless water flows in a defined course or channel it cannot be called a stream. Indeed, on the authority of these cases stream is defined by Peacock as follows : "in its ordinary sense stream means water running in a defined channel. " [law relating to Easements in British India, 2nd Edition, pp 263, 264]. ( 52. ) A reference to Corpus Juris Secundum also shows that water unless it runs in a defined channel cannot be called a stream. " [law relating to Easements in British India, 2nd Edition, pp 263, 264]. ( 52. ) A reference to Corpus Juris Secundum also shows that water unless it runs in a defined channel cannot be called a stream. The following passages from 83 Corpus Juris Secundum page 112 are on that point relevant: "while the term "stream" may mean anything in fact which is liquid and flows in a line or course the word is used technically to distinguish the volume of water of a river, rivulet, or brook from the banks or bed, and it ordinarily and most frequently is used with respect to water, signifying a running or moving body of water, a continuous current, course, or flow of water, in an ascertainable direction between banks or within limits, and thus is wholly inconsistent with a body of water at rest. " "streams are generally formed by surface waters gathering together in one channel and flowing therein, and streams usually empty into other streams, lakes, or the ocean. " "a steam must have substantial existence, and must be something more than a mere surface draining, swelled by freshets and melting snow and running occasionally in hollows and ravines which are generally dry. It must usually run in a definite, defined bed or channel, and ordinarily consists of bed, banks, and a water course. " Surface water which does not flow in any defined channel does not lose its character by flowing from upper land to lower land according to the law of gravitation. It is only when such water enters a stream (as explained above) or flows in a tank or lake, that it ceases to be surface water. Reference in this connection may be made to the following statement in 93 Corpus Juris Secundum p. 800: "surface waters cease to be such when they empty into and become part of a natural stream or lake out but they do not lose their character as such by reason of their flowing from the land on which they first make their appearance into lower land in obedience to the law of gravity. " ( 53. ) COMING to the Indian cases, in J. D. Rohinson v. Ayyakrishnamma cheriyar ( (1872) 7 Mad. " ( 53. ) COMING to the Indian cases, in J. D. Rohinson v. Ayyakrishnamma cheriyar ( (1872) 7 Mad. HCR 37.), rain water used to flow over the lands of the defendants in the plaintiffs tank and when the tank was full some land of the defendants used to be covered by the water until it was gradually drawn off into the area of the tank. The defendants through the agency of the Government relieved themselves of their inconvenience by making a work for draining off the water remaining on their land. The plaintiffs claimed the right to retain the water on the defendants lands on the ground of prescription. In negativing this right, Innes, J. , referred to the cases of Rawstron v. Taylor and Broadbent v. Eamsbotham (supra) and said : "water not running in defined stream is the absolute property of the owner of the land of which it forms part, and, before it has reached a denned stream, he may drain it off or put it to what purpose he pleases. . . . . So that it is quite competent to the landholders--to drain off or otherwise dispose of this water so soon as it lodges on the land. Again a prescriptive right to throw back water, and keep it standing on the land of another exists only in the case of water flowing in a defined stream, and cannot apply to surface water not flowing in such a stream, though it night ultimately, if n )t arrested, flow into a tank. " (pp. 46, 47)It will be seen that water did not come over the defendants lands in a defiled channel and, therefore, it was held to be surface water which the defendants could drain off at their pleasure, though if not drained that water flowed into the plaintiffs tank and then lost its character of being surface water. Then in Perumal v. Ramasami ( (1888) 11 Mad. 16, p. 22.) the defendants were held entitled to impound the rain water flowing over their lands before it entered denned channels leading to the plaintiffs tank. It was observed that the principles laid down in the English cases of Rawstron v. Taylor and Broadbent v. Ramsbotham were applicable to India and were given statutory recognition in section 17 (c) of the Easements Act. It was observed that the principles laid down in the English cases of Rawstron v. Taylor and Broadbent v. Ramsbotham were applicable to India and were given statutory recognition in section 17 (c) of the Easements Act. Next comes the case of Adinarayan v. Ramadu ( (1914) 37 Mad. 304. ). In this case the facts were that a river channel supplied the means of irrigation for the lands of the parties and the ryots of the village. A branch channel from the main channel passed through the lands of delendants 1, 2 and 3 upto the fourth defendants field where the water spread and after irrigating it flowed over the bunds of the field to join another channel which irrigated the plaintiffs lands. Defendants 1, 2 and 3 blocked the channel at a point higher than the fourth defendants land. In a suit by the plaintiff for a declaration of his right to the supply of water through the channel it was held that the water flowing in the channel did not become surface water when it entered the fourth defendants land and spread over the field instead of flowing in a defined channel in that field. This case only decides that water flowing in a stream or channel does not lose its character and become surface water simply because at some intermediate stage instead of flowing within banks it spreads over a field. To the same effect is a footnote in 83 Corpus Juris Secundum p. 113 which reads: "a stream does not become mere surface water because at a certain point it spreads over a level meadow several rods in width and flows for a distance without defined banks before flowing again in a definite channel. " Adinara) arts case cannot be taken to have decided that if there is no channel at all rain water flowing over the surface of a field is not surface water. Indeed, the learned Judges refer to a passage from - Farnhams Law of Waters and Water Courses, Vol. Ill, page 255, where reference is made to Crawford v. Rambo (44 Ohio St. Indeed, the learned Judges refer to a passage from - Farnhams Law of Waters and Water Courses, Vol. Ill, page 255, where reference is made to Crawford v. Rambo (44 Ohio St. 237.) for the proposition that "surface water is that which is diffused over the surface of the ground derived from falling rains and melting snows and continues to be such until it reaches some well defined channel in which it is accustomed to and does flow with other waters whether derived from the surface or springs, and then it becomes the running water of a stream and ceases to be surface water". This passage itself emphasizes that until rain water reaches a well defined channel it does not cease to be surface water and become a stream. Adinarayans case has been similarly read and distinguished by a division Bench of this High Court in Manturabai v. Ithal Chiman (AIR 1954 Nag. 103.) to which reference will again be made later in this judgment. Similar to Adinarayans case are two other cases, Krishnaswami Chettiar v. Pappi Naicker ( AIR 1944 Mad. 228 .) and Venkataramaniah v. Subbaramayya ( AIR 1961 AP 245 .), and it is not necessary to discuss them separately. Reference may then be made to Mr. Sarban v. Phudo Sahu (AIR 1923 Pat. 65. ). In this case overflow of water from defendants tank passed from lower land to the plaintiffs tank. There was no channel through which the water flowed. It was held that the water so flowing was surface water and no right by prescription or grant could be acquired in it. Dawson Miller, C. J. , distinguished the case of Rameshwar Pershad Narain Singh v. Koonj Behary Patluk ( (1879) 4 Cal. 633 (P C ).) on the ground that in that case there was an artificial permanent channel connecting the two tanks and then said: "it must be taken to be settled law that before the right to the use of water can be the subject of an easement by prescription or grant it must be water flowing through a defined and permanent chnnnel. " (P. 68)In Manturabai v. Ithal Chiman (supra) the facts were that water collecting in a Shamilat tank was taken by defendant for irrigating his land and surplus water was allowed to flow in a tank of the plaintiff. " (P. 68)In Manturabai v. Ithal Chiman (supra) the facts were that water collecting in a Shamilat tank was taken by defendant for irrigating his land and surplus water was allowed to flow in a tank of the plaintiff. There was no channel connecting the two tanks and the water only flowed over the fields of the plaintiff. It was held that in the absence of a defined channel it could not be said that water was passing through an artificial water course, and no right to easement could be acquired in respect of such water. Rameshwar Pershad Narain Singh v. Koonj Behary Pattuk (supra) was distinguished on the ground that in that case the tanks in question were connected by permanent artificial channel. Then in Dharnidhar v. Bhagirath (AIR 1956 Orissa 89.) the facts were that rain water from the hills flowed through a channel to the plaintiffs tank. Rain water also flowed over the surface of defendants lands ultimately finding its way in the plaintiffs tank. The defendants diverted this water. In a suit by the plaintiffs their right to receive water through the channel was upheld but their claim of a right of easement to the flow of water over the defendants lands was negatived as it was surface water not flowing in a defined channel. Lastly, reference may be made to Nityananda v. Madhusudan (AIR 1963 Orissa 97.) where a village lane was held to serve as a channel for the flow of "khari Pani". This case only shows that a village lane which has well defined existence and is bounded by houses on either side may serve as a water channel during rainy season and water flowing through it may be subject to a right of easement. But this case has no application here as the trial Court as well as the first appellate Court have negatived on facts the contention that water in the instant case flows through the lane of the abadi. ( 54. ) A survey of the case law shows that rain water coming from upper lands to lower lands according to topographical features of the lands is surface water and it maintains that character until it begins to flow in a defined channel. Till then it cannot be said to flow in a stream and is not subject to any right of easement. Till then it cannot be said to flow in a stream and is not subject to any right of easement. To the same effect is the following statement by Peacock: "it is settled Law both in India and England that water must flow in a defined channel whether natural or artificial, to become the subject of an easement by prescription. " [the Law relating to easements in British India, 2nd edition, p. 118] surface water may also become subject of an easement when it gets permanently collected in a pool or tank. Section 17 (c) of the Easements Act specifically enacts that "a right to surface water not flowing in a stream, and not permanently collected in a pool, tank or otherwise" cannot be acquired by prescription. The word "stream" in this section has been used in a technical sense, as explained above, meaning water flowing in a defined channel whether natural or artificial and not in a generic sense of mere flow of water Surface water before it enters a defined channel remains the property of the owner of the land over which it flows and he can deal with it in any manner he likes. The owner of the land over which the surface water flows may collect the water by construing a tank and the water so collected will still remain the property of the owner of the land but it may then become subject of an easement by prescription. But, as already stated, until the surface water enters a defined channel or gets collected in pool or tank no easement by prescription can be acquired in it. ( 55. ) LET us apply these principles to the facts of the instant case. Rain water coming from the hill, abadi and lands lying towards the west flows towards the east and enters Khasra No. 164 according to topographical features of the lands and it does not flow in any defined channel. I have already said that the findings reached by the Courts below that there is no defined channel for the flow of water has not been disturbed by the learned Chief Justice ; indeed, being a finding of fact it could not have been disturbed in second appeal. I have already said that the findings reached by the Courts below that there is no defined channel for the flow of water has not been disturbed by the learned Chief Justice ; indeed, being a finding of fact it could not have been disturbed in second appeal. The rain water which comes to and flows over the western portion of Khasra No. 164 is surface water not burdened with any easement until it enters the tank in the eastern portion of Khasra No. 164 and gets collected there. It has already been seen that only 3. 32 acres of Khasra No. 164 lying towards the east is the tank The water when it gets collected in this area still remains the property of the owner of the tank but it becomes subject to the right of irrigation acquired by the plaintiffs by prescription or under the wazib-ul-arz. The right acquired is in respect of the water collecting in the tank and not in respect of water which is outside the tank as surface water. Therefore, before the water enters the tank and gets collected there, it can be intercepted by the defendant and can be utilised by him as his pleasure. The defendant to intercept the water has constructed certain embankments which are shown in the plaint map as A, B, C, D and H, I. The embankment a, B is on the western extremity of Khasra No. 164 and is clearly outside the tank. As regards C D and H I, it is not very clear whether they are within the area of the tank in Khasra No. 164. There is no clear evidence or finding on that point. If these embankments have been constructed by the defendant within 3. 32 acres of Khasra No. 164 which is the area of the tank, the plaintiffs can certainly have them removed, but if they are outside the tank area no right of the plaintiffs can be said to be infringed and no relief can be granted to them. ( 56. ) THE learned Chief Justice also felt some difficulty in finding a legal basis to prevent the plaintiff) in intercepting the water and he made it clear that no authority was cited before him in favour of the view that he was taking. He, however, founded his judgment on two grounds. ( 56. ) THE learned Chief Justice also felt some difficulty in finding a legal basis to prevent the plaintiff) in intercepting the water and he made it clear that no authority was cited before him in favour of the view that he was taking. He, however, founded his judgment on two grounds. First, that "the owner of a servient property cannot so alter it as to destroy the easement and what cannot be done directly by preventing the taking of water can also not be done by preventing water being accumulated in the usual course of nature". And, secondly, that section 253 of the Land Revenue Code is to the same effect and the revenue authorities have imposed a fine of Rs. 500/- on the defendant for preventing the exercise of right of irrigation. Now, as regards the first ground, the servient tenement, in the instant case, is not the whole of Khasra No. 164 but only the eastern portion of it which is a tank. The western portion of Khasra No. 164 is not a part of the tank and is not burdened by any right of easement; it is not servient tenement. The defendant, therefore, can exercise any right over the western portion of khasra No. 164 which any other landholder can exercise over his land. According to the findings reached by the Courts below the defendant has constructed the embankments for impounding the water for his paddy cultivation which is a natural use of the land. Further, by holding that the defendant cannot intercept the surface water before it collects in the tank, we shall be conferring upon the plaintiffs "a right to surface water not flowing in a stream and not permanently collected in a pool, tank or otherwise" which the statute says cannot be acquired. The defendant cannot be compelled to maintain his land, which is not a part of the tank as a water table for the benefit of the plaintiffs. He is doing what any other upper proprietor can do. The question of doing something indirectly which cannot be done directly does not arise here. The plaintiffs have no natural or prescriptive right to surface water over the land of the defendant and no injury in law is caused to them if that water is impounded by the defendant. He is doing what any other upper proprietor can do. The question of doing something indirectly which cannot be done directly does not arise here. The plaintiffs have no natural or prescriptive right to surface water over the land of the defendant and no injury in law is caused to them if that water is impounded by the defendant. If on account of interception or diversion of the surface water there is less water in the tank and loss to the plaintiffs, it is a case of damnum sine injuria for which no complaint lies in a Court of law. As regards the second ground, I have already said that the Wazib-ul-arz does not record that the defendant or any other upper proprietor has no right to intercept the water flowing over their land which, if not intercepted, may ultimately find its way in the tank in Khasra No. 164. The Wazib-ul-arz only records that the submerged area of the tank shall not be used for cultivation so as to affect the right of irrigation. Section 253 of the Madhya Pradesh land Revenue Code, 1959, (corresponding to section 253 in the Code of 1954)is so far as material, enacts that any person "who contravenes or fails to observe any rules or custom entered in the Wazib-ul-arz" shall be liable to such penalty not exceeding rupees one thousand as the Sub-Divisional Officer may impose. As the Wazib-ul-arz does not record any rule or custom which enjoins the defendant not to intercept the water before it enters the tank, section 253 of the Code is not violated if the water is intercepted before it reaches the tank. Therefore, the right to prevent the interception of water before it reaches or collects in the tank cannot be claimed on the basis of this provision. It is true that the defendant was fined Rs. 500/- under section 233 of the 1954 code, but it is not clear from the judgments of the revenue Courts whether the defendant had constructed the Bandhis which obstructed the flow of water within the area of the tank or outside it, It is, however, clear from the judgment of the Collector (Ex. P-4), which was upheld in appeal, that he too found that the Wazib-ul-arz recorded the right of irrigation only from the submerged portion of Khasra No. 164. P-4), which was upheld in appeal, that he too found that the Wazib-ul-arz recorded the right of irrigation only from the submerged portion of Khasra No. 164. His finding on this point is as follows: "the nakal Misl Bandobast clearly mentions khasra number 164 area 5. 34 as under cultivation only to the extent of 2. 00 acres. The rest 332 acre is shown there under water the Nistar Patrak and the Wajib-ul-arz of the year 1955 mention plot no. 164 as tank with the condition that submerged part of plot No. 164 (Munda) would not be used in a way so as to be in conflict with the irrigation rights of the tenants. ". Thus, section 253 of the Code and the judgments of the revenue Courts (Exs. P-2 and P-4) do not support the case of the plaintiffs that the defendant has no right to intercept the surface water before it gets collected in the tank. Moreover, the proceedings under section 253 are quasi criminal in nature and orders passed under this provision cannot bind the civil Court in finding out the extent of the right conferred by the Wazib-ul-arz. In my opinion, therefore, the grounds on which the learned Chief Justice held that the defendant cannot intercept the flow of water before it reaches the tank cannot be sustained. ( 57. ) ON the conclusions reached by me, the plaintiffs can be granted a declaration that they have a right to irrigate their lands from the water collecting in the tank of Khasra No. 164 area 3. 32 acres and Khasra No. 165. They are also entitled to have a permanent injunction issued against the defendant restraining him to create any obstruction within the tank area of Khasra no. 164 and Khasra No. 165. But no injunction can be issued which may have the effect of restraining the defendant from intercepting the surface water over the remaining area of Khasra No. 164 which is not a tank. As the plaintiffs have not proved that any obstruction was created within the tank area, they are not entitled to get any decree for damages. ( 58. But no injunction can be issued which may have the effect of restraining the defendant from intercepting the surface water over the remaining area of Khasra No. 164 which is not a tank. As the plaintiffs have not proved that any obstruction was created within the tank area, they are not entitled to get any decree for damages. ( 58. ) I will allow the appeal and pass a decree on the following terms in substitution of the decree passed in second appeal: (a) Declaration that the plaintiffs have a right to irrigate their fields mentioned in paragraph 1 of the plaint from the water collecting in the tank in Khasra No. 164 area 3. 32 acres and Khasra No. 165; (b) Permanent injunction restraining the defendant to create any obstruction within the tank area of Khasra No. 164 (3. 32 acres) and Khasra no. 165 to the collection of rain water; (c) dismissal of rest of the suit; and (d) parties to bear their own costs throughout. I have gone through the judgment of my learned brother which has been entirely recast by him after seeing my judgment right in the nature of easement, no doubt as my learned brother says, restricts the rights of the servient owner but the restriction is limited to the ownership in the servient tenement; rights in other properties are not affected. Sections 27 and 32 of the Easements Act, to which my learned brother now refers, have to be read in this background. Moreover, these sections cannot be so construed or applied as to indirectly confer a right which section 17 says cannot be acquired. As regards the Wazib-ul-arz, it does not curtail any right beyond the tank; in terms it only restricts the right of cultivation in the submerged area. My learned brother refers at various places to Farnhams Law of Waters and watercourses and Crawford v. Rambo (supra ). These authorities are not available to me in the High Court Library. They are referred to in Adinarayans case. A passage from Domats book on Civil Law extracted in Adinarayans case is also quoted by my learned brother. Domats book is also not available. These authorities are not available to me in the High Court Library. They are referred to in Adinarayans case. A passage from Domats book on Civil Law extracted in Adinarayans case is also quoted by my learned brother. Domats book is also not available. Domat was a continental jurist (see Paton Jurisprudence 3rd Edition p. 232) and, presumably, the civil law to which he refers is Civil Law in the strict sense i. e, Roman or continental law as distinguished from common law. For my part, I always find it risky to rely upon authorities which are not available first hand. 1 have already discussed Adinarayans case and the ratio that can be derived from it. That case only decides that if there is a channel, water flowing through it does not cease to be a stream even if at some intermediate stage it spreads over a field. A defined course of water or a stream in the legal sense must have a channel, natural or artificial, to begin with through which the water flows and these expressions do not mean mere flow of water, whether rapid or sluggish, in one direction. A finding that rain water flowing from the hill, abadi and lands lying towards the west of Khasra No. 164 is not surface water but water flowing in a stream will make the hill, the whole of abadi area and the entire surface of the western fields servient tenements burdened with the right of easement of the plaintiffs. This is a startling result which by itself shows the weakness in the initial finding. The learned Chief Justice did not hold that the water at any stage flowed in a stream. He did not grant the relief to the unobstructed flow of water through the abadi and western fields which was expressly claimed in the plaint. He excluded the operation of section 17 on the only ground that water collected in a pool or tank. But the tank is limited to the eastern part of Khasra No. 164, area 3. 32 acres; the western part of khasra No. 164 (2 acres) is not a tank and is not burdened with any right of easement. He excluded the operation of section 17 on the only ground that water collected in a pool or tank. But the tank is limited to the eastern part of Khasra No. 164, area 3. 32 acres; the western part of khasra No. 164 (2 acres) is not a tank and is not burdened with any right of easement. I have already dealt with these aspects, but I am adding this postscript lest it may be said that I have not read the revised judgment of my learned brother with respect and attention that it deserves. It is another matter that i am unable to persuade myself to fall in line with his opinion. ( 59. ) WE have agreed that the respondents are entitled to a declaration that they have a right to irrigate their fields, mentioned in paragraph 1 of the plaint, from the water collected in the depression of Khasra No. 164 (area 3. 32 acres) and in the tank, Khasra No. 165. But we have differed on the question whether the appellant must by a permanent injunction be restrained from preventing rain water from collecting in the depression (area 3. 32 acres) of Khasra No. 164, and the tank, Khasra No. 165, or, the plaintiff is merely entitled to a restricted permanent injunction restraining the defendant to create any obstruction, within the tank area of Khasra no. 164 (3. 32 acres) and Khasra No. 165, to the collection of rain water. According to one of us (Shiv Dayal, J.) the plaintiff is entitled to a decree for injunction in the former terms, while, according to the other (Singh, J.), permanent injunction in the latter terms, where the word "within" is significant. ( 60. ) THE papers shall now be laid before the Honble the Chief Justice to refer the case to a third Judge. ( 61. ) IN the Letters Patent Appeal there was difference of opinion between. Justice Shiv Dayal and Justice Singh who heard the appeal. The case has, therefore, been referred to me. ( 62. ) 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. ) 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 geographical condition, excess rain water from the hills, the abadi and the lands towards the western portion of Kbasra 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. ( 63. ) 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 embankment 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. ( 64. 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. ( 64. ) 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. ( 65. ) IN second appeal then the Chief Justice (Shri Bishambhar Dayal)did not disturb 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 plain-tiffs 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. 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 declaration 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. ( 66. ) 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 plaintiffs had acquired either a prescriptive right or a customary right to use the water in the said two Khasra numbers. ( 67. 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 plaintiffs had acquired either a prescriptive right or a customary right to use the water in the said two Khasra numbers. ( 67. ) JUSTICE Singh was of the opion 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 me 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 specific 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. ( 68. ) 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. ( 68. ) 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 of the 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. ( 69. ) 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. ( 70. ) 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. ( 71. ) UNDER section 17 (c) of the Easements Act, a right to surface water not flowing in a stream, and not permanently collected in a poo), 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 predecessors 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 Easement 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. That right which cannot be acquired directly because of the provisions contained in section 17 of the Easement 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 of 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. 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. ( 72. ) 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 ever 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 Khasra No. 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 hill side. If this interpretation is put on the entry in the Wazib-ul-arz recording the right, the right 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. If this interpretation is put on the entry in the Wazib-ul-arz recording the right, the right 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 number 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 sow 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 right preventing all the landholders from utilising the surface water to the best of their advantage was not recorded and could not have been recorded because it hive 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 How in that 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 How 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 unless the context requires its interpretation in a technical manner. There is nothing in section 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 Blacks 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. ( 73. 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. ( 73. ) 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. ( 74. ) THE appeal shall now be placed before the Division Bench for final disposal. ( 75. ) IN accordance with the opinion of the third Judge, this letters Patent Appeal is allowed and a decree shall be passed in the following terms in substitution of the decree passed in second appeal. (a) Declaration that the plaintiffs have a right to irrigate their fields mentioned in paragraph 1 of the plaint from the water collecting in the tank in Khasra No. 164, area 3. 32 acres, and Khasra No. 165; (b) Permanent injunction restraining the defendant to create any obstruction within the tank area of Khasra No. 164 (3. 32 acres) and khasra No. 165, to the collection of rain water; (c) Dismissal of the rest of the suit; (d) Parties to bear their own costs throughout. Appeal allowed.