1. The Subordinate Judge has found that the channel in dispute was newly dug, that appellant's statement that an old channel had existed is not proved, that the diversion of water from the Pathatharam channel caused a material diminution in the supply necessary for the cultivation of plaintiff's lands and that actual damage was sustained in consequence in Fasli 1295. Upon these facts it is clear that the order of the Sub-Collector was in excess of the powers possessed by him for the regulation of the supply of water for irrigation purposes among ryots holding under Government. As observed in Kristna Ayyan v. Vencatachella Mudali, 7 M. H. C. R 60, the Government has an undoubted right to distribute the water of Government channels, but that power does not include the power to disturb existing arrangements to the prejudice of any tenant during the continuance of the tenancy. This is also the view taken by the Bombay High Court in The First Assistant Collector of Nusik v. Shamji Dasrath Patil I. L. R., 7 B. 209.
2. As regards the direction that appellant should pay the costs of the 2nd defendant (the Collector) in the Court of First Instance, we cannot disturb the same as appellant did not make him a party in the Lower Appellate Court.
3. The appeal fails therefore and is dismissed with costs (two sets).