Surface water cannot be the subject-matter of acquisition of easementary or prescriptive right as every land-owner has a natural right to deal with the surface drainage water as he chooses.

A. MISRA, J.

( 1 ) THIS appeal has been filed by defendants Nos. 1 to 8 and 10 to 14 against a confirming judgment.

( 2 ) PLAINTIFF-RESPONDENT No. 1 who was Chowkidar of village Anlajhari possessed 1. 75 acres of land divided into 11 fields as his jagir. The largest of these fields is locally known as Gada Kiari. After abolition of the chowkidari service, the jagir lands have been settled on him. Defendants Nos. 1 to 14 are residents of village garudabandi, while defendants Nos. 15 to 21 are residents of Anlajhari. The field gada Kiari on account of its favourable situation receives flow of surface water from other fields lying to its north and east. The land of Karuni Pradhan is situate to the adjacent west of Gada Kiari and the lands of other villagers of Garudabandi lie to the west of Karuni Pradhan's land. The lands of villagers of Anlajhari lie to the south of Gada Kiari. According to the plaintiff, during rainy season, on occasions of heavy shower water used to flow from Gada Kiari to Karuni Pradhan's land, though the latter never possessed any right to insist on such flow. In the year 1960, disputes arose between the villagers of Anlajhari and Garudabandi regarding the water flowing from Gada Kiari. This led to a proceeding under Section 147, Cr. P. C. in which the villagers of garudabandi claimed that Gada Kiari is a perennial water source having a spring from which water flows through some fields and ultimately feeds a tank of their village in a defined channel. In the said proceeding, the learned Magistrate declared the right claimed by Garudabandi people, and therefore, the present suit was filed by the plaintiff for a declaration that the defendants have no right whatsoever in respect of the water that accumulates in his field Gada Kiari and for a permanent injunction restraining them from interfering with his right to dispose of the said water in whatever manner he chose or interfered with the ridges of his field.

( 3 ) DEFENDANTS Nos. 15 to 21 who are villagers of Anlajhari supported the plaintiff's case while defendants Nos. 1 to 14 who belong to Garudabandi contested the claim. According to them, Gada Kiari has springs which form the source of a stream from which water flows in a defined channel to their lands lying to the west of Karuni Pradhan's field and feeds a tank of their village. They have been using this water for agricultural and other purposes since time immemorial, and as such, have acquired a right which cannot be interfered with. They further state that in recent past the residents of Anlajhari opened a channel on the southern side of gada Kiari and diverted the water by raising the ridge on the western side, and therefore, proceeding under Section 147, Cr. P. C. was started and ultimately decided in their favour. They also challenged the maintainability of the suit on the ground of non-joinder of parties and absence of title of the plaintiff to the field known as Gada Kiari after abolition of the chowkidari service.

( 4 ) THE trial Court decreed the plaintiffs suit on the following findings: (1) The State is not a necessary party as on abolition of the service the land Gada Kiari has been settled on the plaintiff; (2) the suit is not bad for non-joinder of parties; (3) the water accumulating in the field Gada Kiari is surface water in which no prescriptive or easementary right can be claimed; (4) the water does not flow in a defined channel to confer any rights on the defendants and (5) defendants Nos. 1 to 14 have not acquired any easementary right to the flow of the water. The lower appellate Court affirmed the judgment and decree of the trial Court holding that the water which accumulated on the field in question is only surface water as it is not derived from any stream, pool or tank; that it does not flow in any defined channel; that the accumulated water being surface water, plaintiff has absolute right of disposal in any manner he chose and that the defendants Nos. 1 to 14 cannot claim