M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS is a plaintiffs' second appeal against the judgments and decrees of. the Courts below. It is necessary to state that the original defendant who was Ballal Ganapathi Bhatta died after the filing of the suit and of the two legal Representatives brought on record, i. e. , defendants 2 and 3, the contesting defendant is the 3rd defendant, only as the relief sought for by the plaintiffs is directed against the well situated in the land that fell to the exclusive share of the 3rd defendant. ( 2 ) PARTIES, in the course of this judgment, will be referred to by the ranks assigned to them in the original suit. It is also necessary to state that against some of the findings adverse to the 3rd defendant he also filed an appeal against the order of the trial Court and has succeeded in the lower appellate court. ( 3 ) THE facts leading to this appeal may be briefly stated as follows: The plaintiffs are agricultursts of Anangalii vallia and Kadenchi Vallia of Kalmanja village. In the said village Mundaje river flows from north to south. Anangalii and Par. ari Vallias (lands) are on the eastern bank (left bank) of the river and Kudenchi Vallia (lands) are on the western bank (right bank) of the river. On both the banks of the river, there are areca gardens almost running parallel to the river. The northern stretch of areca garden on the eastern side is called as Anangalii Vallia and the southern stretch is called as Parari vallia. These gardens are said to be there from about 150 years; These gardens entirely depend on the waters of mundaje river for irrigation. The river water is also used for drinking, washing, etc. To the south of S. No. 4611 of Mundaje village, a Katta (Anekat) is put up across Mundaje river and is known as anangalii Parari Katta. The Ka,t|ta is of 'l' shape. The katta which is built across the stream touching the eastern bank is called as Parari Katta and the extension of the Katta at right angles to Parari Katta is known as Anangalii katta. The expense of putting up these kattas is met by the agriculturists of the aforementioned arecanut gardens. The owners of the arecanut gardens take water by Khanis (field channels ). The expense of putting up these kattas is met by the agriculturists of the aforementioned arecanut gardens. The owners of the arecanut gardens take water by Khanis (field channels ). From the water flowing through the Khanis their gardens are irrigated. The plaintiffs have alleged that among themselves they have strict rules as to how the water should be used and the duration of the use etc. In addition to the katta mentioned, another katta by name kudenchi katta is put up to the west of the island in the river by the agriculturists of Mitha Kudenchi. The katfa put up on the eastern side of the island is known as Kudenchi Katta. The later kattas, Kudenchi katta and Mitha kudenchi are constructed by the agriculturists who use the water of the river in Karamenja village. According to the plaintiffs, the kattas are constructed at the beginning of December depending on the depth of the water in the river Mundaje and I he work is completed by about the end of December. Initially 0 gap is left between Anangalii and Parari Kattas, i. e. , kattas built in the upper reaches of the village so that the waters reach the kattas which are at the Inwer reaches. At the time of shivaratri the gap is closed. Thus, a reservoir is formed in the river bed itself. The reservoir formed by the erection of Anangalii and Parari Kattas extends in the north until about Sy. No. 63/1 of Mandaje village. The water percolating from the kattas on the upper reaches will reach the kattas at the lower reaches in the river. The approximate distance between the two kattas is about two miles. ( 4 ) IT is alleged by the plaintiffs that the 1st defendant dug up a tank of 131/2 feet deep in S. No. 47/2 of Mundaje village within a distance of 30 feet from the river bank. It is alleged that it is excavated so that the bed of the tank came to be at a lower level than the bed of Mundaje river. The 1st defendant further got the tunnel and khani filled up with stones, sands and loose earth to enable free trickling of water from the river and started lifting water from the tank to irrigate his areca garden in Sy. Nos. 4711 and 4712 by using a pumpset. The 1st defendant further got the tunnel and khani filled up with stones, sands and loose earth to enable free trickling of water from the river and started lifting water from the tank to irrigate his areca garden in Sy. Nos. 4711 and 4712 by using a pumpset. When the 1st defendant was informed that his action was adverse to the inter- esfts of the plaintiffs and others, he closed the tank. Anangallt parari katta was completed in the year 1965 on 25. 12. 1965 and about 15 days prior to that the 1st defendant had again dug up the well and was intending to lift the water to irrigate his areca gardens. The defendants had no right to tap the river water in the manner described as a result of which the gardens of the plaintiffs were bound to suffer. As the 1st defendant did no,t heed to the plaintiff's requests to close the well and stop percolating the water to his tank the plaintiffs were left with no other choice but to file the suit, and filed O. S. 55/76 in the Court of the Munsiff, Bellhangadi, d. K. , seeking a mandatory injunction against the defendants to close the tank and also a permanent injunction restraining them from digging a tank in sy. No. 47j2. ( 5 ) THE said suit was resisted by the defendants (3rd defendant) substantially admitting the averments of the plaint but denying that the defendants are drawing water from the reservoir formed in the river by erection of the katta as mentioned in the plaint. The defendants contended that their areca garden was nearly 45 years old and they have a right to irrigate the areca gardens by the tank or the well dug in their own land. They have further denied that they had dug any tunnel or khani connecting the river and their tank. They also denied that they had closed the well earlier as alleged in the plaint in 1965. The defendant contended that the tank was widened in 1965 and a pumpset was installed. It was their further contention that the tank was independent and there was no connection between tjie tank and the river. They also denied that they had closed the well earlier as alleged in the plaint in 1965. The defendant contended that the tank was widened in 1965 and a pumpset was installed. It was their further contention that the tank was independent and there was no connection between tjie tank and the river. It was further asserted by the defendants that they were upper riparian owners and as such entitled to the use of the water of Mundaje river to the lands abutting the same, so far they had not tapped the river water. They have not interfered with any mamool rights of the plaintiffs and that they have their own right to water in their own lands. The plaintiffs are not entitled to the prayer of any mandatory injunction or permanent injunction against the defendants for closure of the well, and restraining the defendants from using the. well water for their irrigation purposes. ( 6 ) IT is necessary here to state that in the very first instance a Commissioner was appointed to give a report in regard to the location of the well,- katitas the flow of the river, situation of the lands of the parties to the suit. The report given by the Commissioner was not marked as an exhibit. However, later on, another Commissioner was appointed who produced his report to the Court along with a sketch prepared showing the river, the location of the lands of the plaintiffs and the defendants, the location of the village, the location of Anekats as well as the well in Sy. No. 4712, The latter sketch of the Commissioner is marked as Ex. P5 in the trial Court. ( 7 ) ON the above pleadings, the learned Munsiff framed as many as six issues which are as follows: (1) Whether the tank 't' is a new or and old one? (2) Whether the lifting of water by means of a pump set affects the plaintiff or not ? (3) Whether the defendants are entitled to lift the water of Mundaje river near about the tank as upper riparian owners or because they are owners of the land in which the tank is situated? (4) Are the plaintiffs entitled to the mandatory injunction prayed for? (5) Are the plaintiffs entitled to the permanent injnuction prayed for? (6) what reliefs? (3) Whether the defendants are entitled to lift the water of Mundaje river near about the tank as upper riparian owners or because they are owners of the land in which the tank is situated? (4) Are the plaintiffs entitled to the mandatory injunction prayed for? (5) Are the plaintiffs entitled to the permanent injnuction prayed for? (6) what reliefs? additional Issues: (1) Whether the source of waiter for the tank 't' is from Anangajli Parari katta as alleged by the Plaintiffs? (2) Whether there will be diminution of water in the Anangalli Parari katta if 'the defendants lift water from the tank 't' ?the above two additional issues were framed subsequently after deletion of issue No. 2 framed originally. ( 8 ) SIX witnesses were examined for the plaintiffs and one for the defendants and five documents were marked for the plaintiffs. On appreciating the evidence on record and after hearing the parties, the learned Munstff found that the tank was a newly constructed tank and that the water in the tank flowed from the eastern side of Anan- galli Parari katta. But, however, came to the conclusion that as a result of such flow there would not be diminution of water in the katta if the eastern side wall of the tank of the defendants was cemented. He further held that the defendants were not entitled to lift the water of Mundaje river. He declined to grant the permanent injunction sought for by the plaintiffs. But, however, issued a mandatory injunction against the 3rd defendant to cement the eastern side wall of his well. Thus the suit was partly decreed and in other respects-was dismissed. ( 9 ) AGGRIEVED by the judgment and decree of the learned Munsiff, both the plaintiffs and the defendants preferred appeals to the Prl. Civil Judge, mangalore in R. As. 17/71 and 20/71 respectively. The learned Civil Judge clubbed the appeals together and disposed of them by a common judgment holding that the mandatory injunction granted by the Munsiff was not justified on the material evidence in the case and therefore allowed the appeal of the defendants and set aside the order of the trial Court in that behalf. He concurred with the Munsiff that the plaintiffs were not entitled to the permanent injunction. He concurred with the Munsiff that the plaintiffs were not entitled to the permanent injunction. ( 10 ) IN this appeal the only two points urged before me by Shri U. L. Narayana Rao, learned Counsel for the plaintiffs are that: (1) the lower appellate Court ignored the material evidence in coming to the conclusion that the plaintiffs did not prove their allegation that the defendants had dug up a khani and had concealed the same, in as much as it overlooked the finding of coconut and arecanut palm leaves by the Commissioner when he dug a trial pit between the river bank and the tank to find out if there war, concaaled khani connecling the well and the river. (2) the lower appellate Court as well as the trial Count did not correctly appreciate the case" law cited before them and thereby committed an error of law in not applying the law decided in those cases one of which at least was binding on the Courts below. ( 11 ) IT is difficult to accede to the contentions advanced before me. I see from the judgment of the lower appellate Court, each and every aspect of the evidence of the five witnesses of the plaintiffs has been discussed in detail and rejected as not worthy of credence. The learned Judge has pointed out the various contradictions and short-falls in the oral testimony of the witnesses and has come to the conclusion on the material placed before him that the plaintiffs had failed to prove by specific evidence the existence of a khani or a channel connecting the river and the tank in the defendants' land. However, in regard to the finding of coconut and arecanut palm leaves by the Commissioner while digging the trial pit, he accepted the plausible explanation offered by the defendant's Counsel that in a land having arecanut garden and coconut palms, it was not unusual to put the leaves of coconut as well as arecanut palm to prevent the soil erosion on account of the proximity of the river. ( 12 ) MR. Narayana Rao, strenuously contended that it was not open to the learned 1st appellate judge to accepit such an explanation without any evidence in that behalf. This in my opinion is really begging the question. It is not for the defendants to prove that there was a channel dug. ( 12 ) MR. Narayana Rao, strenuously contended that it was not open to the learned 1st appellate judge to accepit such an explanation without any evidence in that behalf. This in my opinion is really begging the question. It is not for the defendants to prove that there was a channel dug. It was for the plaintiffs to prove that such a channel was dug. If they failed to prove that by cogent oral or other evidence, the mere finding by the commissioner of palm and coconut leaves as described earlier would not lead to any legal inference that a lunnel or Khani was concealed and those leaves must have been laid by the defendants in order to conceal the underground khani for drawing the wa'er from the river as alleged by the plaintiffs. Nothing prevented the plaintiffs who were present with their counsel on the numerous occasions the commissioner visited the spot to ask him to excavate further the trial pit to prove that there was continuity of such khanis or channel connecting the well and the river. Having failed to do so the plaintiffs now cannot contend that an inference should be drawn in their favour. The allegation in para IV (a) and IV. (e) of the plaint were required to be proved direcitly by the plaintiffs and they are as follows: para IV (a):"in about the end of november, 1965, the first defendant got dug up a tank in about the central portion of S. No. 47/2 of Mundaje village only about 30 feet removed from the Mundaje river flowing in s. No. 4611. The tank was dug up to a depth of 131/2 feet to ensure that the bed of the tank was at a lower level than the bed of the Mundaje river. The first defendant also got a tunnel and khani dug up to connect the tank with the river and got the tunnel and khani filled with stones, sand and loose earth to enable free trickling or flow of the water from the river the plaintiffs personally visited the first defendant and convinced the first defendant of the fact that the river water was freely flowing into the tank and warned the first defendant against tapping of the river water. . . "x para IV (e)". . . . . . "x para IV (e)". . . . Sinking a tank very near to the reservoir of the anangalli Parari katta and diverting 'he water collected in Anangalli parari katta by means of a tunnel and khani, of course filled up and loosely is against the mamool rights of the agriculturists. " ( 13 ) IF the plaintiffs failed to prove the allegalions by oral or other evidence, it will not be open to a Court of law to presume by mere presence of coconut and arecanut leaves in a pit dug between the river and the well, the existence of any khani or underground channel. ( 14 ) IN any event, the conclusion reached by the lower appellate Court is very much based on the report of the Commissioner supported by sketches. It is (seen from the report of the commissioner'that the well is dug 30 feet away from the bank of the river on the western side (right bank ). It is also seen that Sy. No 47/2 extends and runs along the bank of the river to a considerable distance. It is pointed out in the report as well as Ex. P5 one of the sketches accompanying the commissioner's report that the well is only 24 feet x 20 feet and that it has eight springs from the bed of the well which was emptied within abou 15 minutes by use of a pump installed there.- It is also seen from the report that there is some seepage from. the eastern wall of the well and that the well is about 6 to 7 feet deep. It is further stated in the report that on finding the respective levels of the well and the river it was found that the difference was only about 2 links or it feet. It is reasonable to presume that if eight springs are on the bed of the well and" there is seepage on the the eastern wall, then the two may be unconnected and the springs must be the natural result of waiter pressure elsewhere showing up in the well and not necessarily through the alleged khani or channel. It is reasonable to presume that if eight springs are on the bed of the well and" there is seepage on the the eastern wall, then the two may be unconnected and the springs must be the natural result of waiter pressure elsewhere showing up in the well and not necessarily through the alleged khani or channel. In any way this is a finding of fact accepted by the Courts below and the High Court in this second appeal under S. 100 CPC cannot interfere with that finding unless it is perverse or based on no evidence at. all for this reason the first of the contentions is rejected. ( 15 ) IT is now in regard to the of the contention tha' certain cases site were not followed, it is necessary to briefly notice the cases cited. ( 16 ) IN the case of Babnji Ramalina, gurav v. Appa Vithavja Sutar (AIR 1924 Bom. 154) a division Bench of the Bombay High court interpreting S. 7 of the Indian easements Act has held that tapping at a distance of 14 feet from source, knowledge and direction of the spring should be presumed and that where the obstruction by defendant of wader began only fourteen feet from the sources of the springs, there was clear justification for presuming under S. 114 of the Indian Evidence Act that there was a direct and defined channel known to defendant by which the water sought to be tapped found its way to the adjacent springs and to such cases s. 7 did not apply. ( 17 ) I am unable to see how that ruling with which it is difficult to disagree, is of any assistance to the plaintiffs in this case. The learned Judge in the case essentially relied upon two English cases in Chasemore v. Richards ( (1859) 7 HLC 349 (1895) AC 587) and mayor and Co. of Bradford v. Pickles ( (1895) AC 587) wherein it had been held that the first principle on which water percolating through the soil under the surface is unknown or undefined channels cannot be subject of an easement was clearly laid down in Action v. Blundell ( (1843) 12 M and W324 ). " ( 18 ) ON the facts of this case, it is undisputed that the well is situated within the land belonging to the 3rd defendant. " ( 18 ) ON the facts of this case, it is undisputed that the well is situated within the land belonging to the 3rd defendant. The flow of the river water admittedly is north to south. It is not the case of the plaintiffs that the defendant interfered with the flow of water by obstructing the same in the river bed. It is common knowledge that in a year where there is more than 200" of rainfall during monsoon, surface water normally does not stay in the river bed but flows out to the sea,. It is only in the lean months alter monsoon that water collecting tends to raise the level of the underground water. Where there is some storage of water in the river bed underground water on the lands adjoining the banks must also rise. This is a natural phenomenon. By such inundation, percolating water through underground terrain is bound to benefit the land owners owning land on the banks of the river. Such a natural phenomenon cannot in any way affect the rights of the land owners to dig wells or tanks and derive the benifit of such percolating water. To hold otherwise would be denying the right of the land owner to enjoy his land underground without justifiable reasons. In any event, the facts brought out in the Commissioner's report suggest that the percolating water does not have the effect of diminishing the water in the katta. This must be a continuous and constant occurrence of nature from the upper reaches of the river towards the lower terrain all along the river bed. Water always finds its level. ( 19 ) IN the case of Karthigundi Kesh- ava Bhatta v. Sunnanguli Krishna bhatia ( AIR 1946 Mad. 334 ) a learned single Judge of the Madras High Court has held that as a general rule a land owner has got a natural right to the water that percolates or flows in undefined channels within his land even if this causes damage to his neighbour by abstraction of water from his land. 334 ) a learned single Judge of the Madras High Court has held that as a general rule a land owner has got a natural right to the water that percolates or flows in undefined channels within his land even if this causes damage to his neighbour by abstraction of water from his land. As an exception, that in drawing subterranean water from the adjoining land a man cannot draw off water flowing in a defined surface channel through that adjoining land ( 20 ) THIS again is not of any assistance to the plaintiff on account of the reason already given by me above in as much as the surface flow of the river water is north-south and not east-west and it is nobody's case that defendants have diverted the water of the river by an open khani (surface ). ( 21 ) VERY strong reliance was placed by the learned Counsel for the plaintiffs on the decision of this Court in the case of Gundila Manjappa Shetty v. Manjakke Shedthi (AIR 1961 Mys. 268 ). Even in that case Somnath Iyer, J. , as he then was, held that it was firmly established principle that if a stream of water flows in a known or defined channel, the right to have it run in its natural course is an incident of property. It was further held that the ordinary rule was that although a land owner had a right to the water that percolates or flows from a channel into his land, it would not be lawful for him to draw or abstract or tap water flowing in a definite over-ground channel by a direct act, whether it be by deepening his own land or by making an artificial cutting or otherwise. ( 22 ) THIS ruling again is not of any assistance to the plaintiffs in as much as the finding of fact in the case is that the well is fed by natural springs on account of terrain and not on account of any artificial device. The law on the subject is clear. ( 22 ) THIS ruling again is not of any assistance to the plaintiffs in as much as the finding of fact in the case is that the well is fed by natural springs on account of terrain and not on account of any artificial device. The law on the subject is clear. Adjacent owner must have knowledge of the flow whether on surface or in sub-terrain in respect of its direction and by an act of the adjacent owner the direction of the flow should be obstructed or diverted to the detriment of the lower riparian or land owner towards whose land the natural flow of water exists. If these ingredients are not proved, defendants such as these cannot be penalised. ( 23 ) IH the result there is no merit in this appeal. Therefore, the same is dismissed and the judgment of the lower appellate court is confirmed. ( 24 ) THERE will be no order as to costs in this Court. --- *** --- .