HET SINGH Vs. ANAR SINGH

JUDGEMENT

(1.) This is a defendants' Second Appeal in a suit for injunction restraining the defendants from interfering with the plaintiff's alleged right to irrigate their fields from the well situate in the defendants' land. The right was claimed by way of a prescriptive right of easement acquired by more than twenty years uninterrupted user.

(2.) The trial Court found that the plaintiffs had such right in respect of plot No. 221, but not in respect of plot No. 222. The lower appellate Court has found that the plaintiffs had that right in respect of both the plots Nos. 221 and 222. The well was situate in plot No. 223. There is no dispute that the land and the well belonged to the defendants. The finding is that the plaintiffs have been irrigating their fields by taking water from the well in dispute for more than twenty years.

(3.) Without going into the merits of that finding and accepting it as a fact that the plaintiffs had been irrigating their fields by taking water from the well in dispute for more than twenty years, the question that arises in this Second Appeal is whether a right to do so by way of an easement could be acquired by prescription in view of the provisions contained in Section 17 of the Easements Act which is to the effect that a right to underground water not passing in a defined channel cannot be acquired as an easementary right by prescription under Section 15 of the Act. A right to draw water from a well is surely a right to underground water and it is not the case that the plaintiffs' right to enjoy water from their well was interrupted by something done by the defendants to the source of water in the well which was through a defined channel, by doing something, such as drawing an excessive supply of water from their own well from the same underground source.