The right to water flowing in known and defined channels whether upon or below the surface of the ground, do not apply to water whether under or above ground, having no certain course or defined limits, such as that merely percolating through the strata of the earth, or that diffused over its surface, such water not being subject to law of Water Courses.

M. SESHACHALAPATI, J.

( 1 ) THE question that arises for determination in this Second appeal is whether the plaintiffs are entitled to irrigate their lands by getting water from the lands belonging to the defendants.

( 2 ) THE plaintiffs are the owners of the land S. No. 108/b in the village Komarica in the District of Nellore. The defendants had recently purchased S. No. 109/a belonging to one Thota Lakshamma and adjoining to S. No. 108/b. The plaintiffs filed O. S, No. 479 of 1951 on the file of the District Munsifs Court, Nellore for a declaration of their right to have their lands irrigated through S. No. 109/a. The case of the plaintiffs is that for several generations past then lands which are 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. The defence to the action was that there was no such right, that there was neither prescriptive title as a right of easement or a lost grant, that the plaintiffs have a separate source of irrigation, that if the water is allowed to flow to S. No. 108/b through S. No. 109/a, the defendants would suffer great injury, as there will 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.

( 3 ) ON these pleadings, the learned District Munsif framed appropriate issues. The first issue reads as follows : "whether the plaintiffs are entitled to irrigate S. No. 108/b through the defendants lands in S. No. 109/a as pleaded in the plaint?" The evidence on the question in issue was mainly oral. Five witnesses were examined on behalf of the plaintiffs and six for the defendants. The learned District Munsif, appears to have made local inspection. The notes of inspection, however, had not been kept as part of the record, and on this circumstance considerable comment has been made by the learned counsel for the appellants, which I shall deal with later. On the evidence, the learned District Munsif came to the conclusion that the testimony of the witnesses on behalf of the plaintiff is true, that even according to the defence witnesses, the alternative source of irrigation of S. No. 108/b is not adequate, 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 o water from 109/a belonging to the defendants. He therefore, granted a decree in terms prayed for.

( 4 ) IN appeal A. S. No. 48 of 1954, on the file of the Subordinate Judges Court, Nellore, the findings of the learned District Munsif were affirmed. The learned Subordinate Judge held that the alternative source of irrigation pleaded in the written statement by the defendants, namely, through Juttuwadi Kalva cannot irrigate the entire extent of the respondents lands covered by S. No. 108/b, and that there is no other source except the one claimed by the plaintiffs, and established by the Commissioners report, the oral evidence in the case and other probablising circumstances upon which reliance was placed by the trial Court. As to the injury and inconvenience that was pleaded by the defendants if the water is allowed to flow from their field to that of the plaintiffs, the learned Subordinate Judge held that they were only imaginary.

( 5 ) THE_ Courts below have therefore, found (i) that the plaintiffs have proved that for long number of years prior to the action they were getting water for the cultivation of their lands in S. No. 108/b. through the lands of the defendants in S. No. 109/a, (ii) that the alternative source suggested in the written statement is not enough to cultivate the entire area comprised in S. No. 108/b, and (iii) that the injury pleaded by the defendants in case the plaintiffs are allowed to take the water is unreal and imaginary. These are concurrent findings of

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