1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.724 OF 2006 Prabhakar Gopal Narvankar & Ors. .... Appellants Vs. Smt.Ranjana Anant Rohidas .... Respondents Machekar & Ors. Mr.P.S. Dani, Advocate for Appellants. Mr. B.G. Tangsali, Advocate for respondents. CORAM : Smt. R.P. SondurBaldota, J. Date : 18th July, 2009 P.C. : 1. The appellants who are original defendants no. 2 to 5 file this Second Appeal to challenge the concurrent decisions of both the courts below declaring right of easement claimed by respondent no.1 and granting the consequential relief. 2. Appellants no.1 to 4 and respondents no.2(a) to 2(f) are the owners of land at survey no.23, Hissa no.5. They have agreed to sell the land to appellant no.5. Respondent no.1 is the owner of the adjoining land at survey no.5, Hissa No.3/1 and 3/2. There exists a well on the land of the appellants. There is a canal running east-west from the well to a distance of 12 ft. upto the boundary, then running north-south to a distance of 30 ft. ending at an open space for running the water to the land of respondent no.1. 2 Respondent no.1 claims that she has been receiving water from the well through the canal continuously from the time of her forefathers. She has been using the water for household purposes as well as for agricultural purposes. According to her earlier there was also a place on the wall left open for drawing water by bullocks. This easementary right of respondent no.1 to draw water from the well was never disputed by respondents no.2(a) to 2(f) and appellants no. 1 to 4. But appellant no.5 who has agreed to purchase the land has raised disputes over her right and threatened to stop the canal water. He is also alleged to have damaged the canal. She therefore filed suit for declaration of easementary right and consequential injunction. 3. After receipt of the suit summons, appellants no. 1 to 4 and predecessor of respondents no.2(a) to 2(f) failed to file written statement. The suit was contested by appellant no.6 alone. He alleges that respondent no.1 has been drawing water not from the suit well but from the well of one Govind Shetye. He however was content to cross-examine respondent no.1 and her witness and did not lead any evidence. 4. The trial court considered the evidence of respondent no.1 and three witnesses examined by her to hold that 3 respondent no.1 has established continuous unchallenged use of taking of water from the well of the defendants for atleast more than 40 years. Before the lower appellate court, the appellants contended for the first time that the right of easement claimed by respondent no.1 was hit by Section 17(d) of the Indian Easements Act,1882. The appeal court rejected both the contentions and dismissed the appeal. 5. Mr.Dani, the learned counsel of the appellants relying upon the decision of Allahabad High Court, in the case of Het Singh and ors. vs. Anar Singh and ors. reported in AIR 1982, Page 468 urges that the right to draw water from a well is a right to underground water and hence is hit by Section 17(d) of Indian Easements Act. The provision of Section 17(d) reads as follows : 17.Rights which cannot be acquired by prescription. --Easements acquired under Section 15 are said to be acquired by prescription, and are called prescriptive rights. None of the following rights can be so acquired : (a) ...... (b) ...... (c) ...... (d) a right to underground water not passing in a defined channel.” 4 6. The provision relates to the underground water which flows in defined known channel as a natural watercourse. Each owner of the land has a right to the advantage of the stream flowing it’s natural course under his land. Such water if it is obstructed can give rise to an action but not where there is no defined channel to the water. The reason for the underground water running in different stream is not subject of prescription is that there cannot be any visible means of knowing the extent to which the supply to the water of the other side would be affected by the water percolating in and out of the adjoining land. In my considered opinion, the provision of Section 17(d) cannot be applicable to well water. It cannot be said that right to draw water from a well is a right to underground water. Once the water is captivated in a well, it ceases to be water not passing in a defined channel. The water percolating in the well has a definite place. It would also be no more underground water i.e. water not available for direct drawing irrespective of the difference in the level of water from the ground level. Therefore in my opinion the provision of Section 17(d) is not applicable to the facts and circumstances of the present case. 5 7. Mr.Dani next submits that the appellate court is completely silent as regards the essential ingredients of the rights claimed by respondent no.1 and to that extent the judgment is defective. There is no doubt that the judgment of the appellate court does not discuss the evidence led before the trial Court on the prescriptive right of drawing the water by the appellants. However, perusal of the judgment of the trial Court shows that there has been sufficient evidence before the court to establish the right. Hence, the appeal is dismissed. (Smt.R.P. SondurBaldota, J.)