A right of easement cannot be acquired over surface water till it is collected in a pool or a tank, and no rights are acquired over the collecting of the same.

Bhave, J.

1. In the Letters Patent Appeal there was difference of opinion be- tween Justice Shiv Dayal and Justice Singh who heard the apoeal. The case has, therefore, been referred to me.

2. In the village in question Khasra No. 165 is a village tank, bounded on all sides by embankments. Immediately to the southern side of this tank is situate Khasra No. 164, belonging to the defendant. In an area of 3.32 acres which is sort of a depression rain water used to collect. This portion has no embankment. The excess rain water in this area used to flow in the tank Khasra No. 165. This area of Khasra No. 164 is known as "Munda tank", not having embankments on all its sides. In the village papers it is recorded that the cultivators having their fields towards the eastern side of the tank Khasra No. 165 and the Munda tank in Khasra No. 164 have a right to use the water collected in those tanks for irrigating their fields. The natural slope in the village is from west to east, As a result of this geograhpical condition, excess rain, water from the hills, the abadi and the lands towards the western portion of Khasra Nos. 165 and 164 has a tendency to flow towards Khasra No. 164 and thus some water is collected in the depression, referred to above.

3. In the year 1956 the defendant purchased Khasra No. 164, having an area of 5.32 acres, out of which an area covering 3.32 acres is the depressed area. Soon after his purchase the defendant constructed embankments, running north-south one on the western border of Khasra No. 164 and the other near the depressed portion. He had also constructed embankments, running east-west, joining the two embankments. The plaintiffs' case was that as a result of this construction of embankments the quantity of water which used to be collected in the depressed portion of 3.32 acres of Khasra No. 164 was reduced and the flow of excess water in the tank Khasra No. 165 was also prevented which substantially affected the right of irrigation of the plaintiffs. They, therefore, brought the suit for injunction permanently restraining the defendant from obstructing the flow of water in Khasra No. 164 and Khasra No. 165 and for damages amounting to Rs. 2,300/-

4. Both the Courts below came to the conclusion that the water coming from the hill side over the abadi and other intervening fields was 'surface water' over which no right of easement could be claimed and the defendant was free to utilise that water in any manner he liked or to throw it out from his field. As to the entry in the wazib-ul-arz it was held that the plaintiffs had a right to irrigate their fields from Khasra Nos. 164 and 165 to the extent any water was collected therein but they had no right to prevent the defendant from impounding the water coming to Khasra No. 164 or diverting it otherwise. In this view of the matter, the plaintiffs' claim was negatived in toto.

5. In second appeal the then Chief Justice (Shri Bishambhar Dayal) did not dis- turb the finding of the Courts below that what reached in Khasra Nos. 164 and 165 was surface water. The learned Chief Justice, however, felt that the Courts below misapplied the law of surface water to the facts of the case. The learned Chief Justice felt that such a right was capable of acquisition both as a matter of local custom recognised by Section 18 of the Indian Easements Act and entered in the Wazib-ul-arz and that it was also capable of acquisition under section 15 of the Easements Act. It was held that in the particular case the water permanently collected in the pool or tank from which the plaintiffs used to take water for irrigation and thus the plaintiffs had acquired a right both under local custom as well as by prescription. Having come to the conclusion that such a right was acquired, the learned Chief Justice came to the conclusion that the defendant could be restrained from so using his own land as to prevent water reaching the tank. The learned Chief Justice was of the view that i