The right to irrigate lands by getting water from the lands of another can be acquired by prescription, even if the water is not flowing in a stream, provided that it flows in a defined course and its identity and existence as a water body is maintained.

P. CHANDRA REDDY, C. J.

( 1 ) THIS appeal under Clause 15 of the Letters Patent is filed against the judgment of our learned brothel Seshachalapati J. , in S. A. No. 914 of 1955.

( 2 ) THE point that falls for decision in this appeal is whether the plaintiffs in O. S. No. 479 of 1951 (District Munsifs Court, Nellore) are entitled to irrigate their lands by getting water from the lands belonging to the defendants. The plaintiffs are the owners of a land S. No. 108/b in the village, Komariva, Nellore, District. The defendants are the owners of the adjoining laud bearing S. No. 109/-A, having purchased it just before the suit. The plaintiffs filed the suit which has given rise to this appeal, in the District Munsifs Court, Nellore, for declaration of their right to have their lands irrigated through S. No. 109/a, averring thai for several generations past their lands, which were lower in level than the lands of the defendants, were being irrigated by the flow of water from the defendants lands. The action was founded upon immemorial right, custom and prescriptive title as a right of easement and under a lost grant.

( 3 ) THE suit was contested on the plea that there was neither prescriptive title as a right of easement nor a lost giant, that the plaintiffs had a separate source of irrigation and that if the water were allowed to flow to the plaintiffs land through the defendants land, the latter would suffer great injury as there would be a diminution of the supply of water for their cultivation and also the washing away of the manure of the lands of the defendants,

( 4 ) THE trial court came to the conclusion that the testimony of the plaintiffs witnesses was acceptable, that even according to the defendants witnesses the alternative source of irrigation of S. No. 108/b was not adequate and that till the purchase of S. No. 109/a by the defendants in 1951 there was no difficulty as the plaintiffs land was presumably being irrigated by the flow of water from S. No. 109/a belonging to the defendants. In the result, it granted the decree as prayed for.

( 5 ) ON appeal, the learned Subordinate Judge confirmed the decision of the District Munsif. The learned Judge found that the complaint of the defendants that the exercise of right by the plaintiffs would be detrimental to the beneficial enjoyment of their lands was more imaginary than real. The defendants carried the matter in second appeal to this Court.

( 6 ) OUR learned brother, Seshachalapati J. , dismissed the second appeal, concurring with the view of the courts below as to the right of the plaintiffs to get the lands irrigated by getting water from the field of the defendants. However, the learned Judge granted leave as some important questions of law arc involved in the case.

( 7 ) IN support of this appeal, three contentions are urged before us by Sri Rama Sarma learned counsel for the Appellants. (1) Plaintiffs could not acquire any prescriptive right in this behalf as the water in question was not flowing in a stream and as such the right of casement could not be acquired by reason of Section 17 of the Indian Easements Act, (2) Since the plaintiffs have an alternative source of irrigation, there is no question of an easement of necessity which alone could be enforced; and (3) Lastly, the right asserted by the plaintiffs would deprive the defendants of the beneficial enjoyment of their lands and hence there was no obligation cast on the defendants to let out water into the neighbouring field.

( 8 ) TO take up the first point, the argument of Sri Rama Sarma is that the water in question is surface water and so there could be no acquisition of prescriptive title in such a case. According to the learned counsel, since the water after getting into the defendants land spreads itself over the defendants field and does not get into any surplus channel before it comes to the plaintiffs field, it could not be regarded as a known and defined source of irrigation, in which case alone

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