LODHA, J.—These two appeals by the defendants can be conveniently disposed of by a common judgment as they raise an identical question.

2. Both the suits out of which these two appeals arise were instituted by Bhagwandas, who died during the pendency of the suit and is now represented by his son Makhandas. His case was that he owned Khasra Nos. 460, 461 and 462 in village Machadi, District Alwar, and rain water coming down from the hills and the forests after passing through the fields of the defendants used to flow into his field so that the crop in is field was irrigated by this rain water. It was alleged that the defendants in both the cases constructed Dolies in their respective fields and thereby stopped the flow of rain water through their fields to the plaintiffs fields with the result that the plaintiff was deprived of the use of the rain water in respect of which he had acquired a right of prescriptive easement. It was, therefore, prayed that an injunction may be issued against the defendants for demolishing the Dolies constructed by them and for restraining them perpetually from stopping the flow of the rain water to the plaintiffs fields through their fields.

3. The defendants in both the cases denied that the rain water ever passed through their fields to the plaintiffs fields. They also pleaded that the Dolies constructed by them had been existing for a very long time. It was stated by them that the plaintiff had not acquired any easement of using the rain water flowing through their fields.

4. After recording the evidence produced by the parties the learned Munsiff, Rajgarh dismissed both the suits though by separate judgments, but the findings given in both the cases were identical. It was held that the plaintiff had acquired a right of easement to irrigate his fields with the rain water flowing down from the hills and passing through the fields of both the defendants. He also found that some time in the year 1958 the defendants had raised a sand wall (Doli) in each of the two fields which had obstructed the passage of the rain water to the fields of the plaintiff. However, he came to the conclusion that the rain water did not pass through a defined channel and thus the plaintiff did not acquire a right to surface water which was not flowing in stream and was not permanently collected in a pool or tank or otherwise. In this view of the matter he came to the conclusion that under S. 17 of the Easements Act no right of easement could be acquired by prescription in respect of surface water not flowing in a stream.

5. Dissatisfied with the judgments and decree of the trial court the plaintiff filed appeals in both the cases in the Court of District Judge, Alwar, who transferred the same to the Court of Addl. District Judge, Alwar for decision. The learned Addl. District Judge, however, came to the conclusion that the rain water comes from hills and forests in a defined channel to the defendants fields and flows further on to the plaintiffs fields after irrigating the defendants fields since times immemorial and the flow of the water to the plaintiffs fields has been obstructed by the defendants by raising Dolies. He held that the rain water coming to the plaintiffs fields does not partake nature of the surface water. In this view of the matter he set aside the judgments and decrees of the trial court and decreed the plaintiffs suits. In these circumstances the defendants have field second appeals to this Court.

6. The only point urged in support of these appeals is that the water which used to pass through the defendants fields to the plaintiffs fields did not flow in stream and was not permanently collected in a pool, tank or otherwise. It has been argued that under S. 17 of the Easements Act no right to surface water not flowing in stream can be acquired by prescription. Learned counsel for the respondent has no quarrel with the legal proposition stated by the learned counsel for the appellants but his submission is th

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