1. The question in this appeal relates to the rights of the parties to the use of the natural stream called Kattar or Pedukulam.
2. The stream rises in, and Hows through, Government lands, before it empties itself into the Pedukulam tank, which is situated within the zamindari of the plaintiff.
3. The defendants Nos. 1 and 2 are persons who hold land under Government, which land is now partly irrigated by a channel taken off from the said stream within the limits of the Government land above the zamindari.
4. The third defendant is the Secretary of State for India in Council.
5. Plaintiff sues to establish his exclusive right to the waters of the stream and for an injunction to restrain the defendants from in any way interfering with that exclusive right.
6. This claim to exclusive right to the water was put forward before the Forest Settlement Officer in 1886, and was by him disallowed after due enquiry under Act V of 1882 (The Madras Forest Act).
7. The plaintiff did not appeal against that decision, and it therefore became final.
8. The Subordinate Judge, therefore, hold that the plaintiff was precluded from re-agitating the question in this suit.
9.The plaintiff, as appellant before us, contends that the Subordinate Judge was in error, on the ground that the Forest Settlement Officer had no jurisdiction to give an adjudication on the question. The appellant's argument is that the exclusive right which he now claims over the. water is not one of those rights which are specified in Section 10 or 11 of the Act, and in regard to which alone the Forest Settlement officer had jurisdiction. We cannot accopt this contention. As a mere riparian proprietor the plaintiff could only have a right to the lawful use of the water flowing through his land subject to the similar rights of other riparian proprietors, but his claim to the exclusive use of the water shows that he claimed more than tho rights of a riparian proprietor. Now a claim to use the water of a natural stream in a manner not justified by natural right is undoubtedly a claim to an easement. (Gale on 'Basements,' p. 20, 6th edition).
10. In other words, the right claimed by the plaintiff was, in the language of Lord WATSON in Dalton v. Angus L.R. 6 App. Cas. 740 'a right of property in the owner of the dominant tenement--not a full or absolute right--but a limited right or interest in land which belongs to another whose plenum dominium is diminished to the extent to which his estate is affected by the easement.'
11. It seems, therefore, clear that the right claimed by the plaintiff was a right in respect of water flowing in a defined channel on Government land, that is, of a water-course, and, therefore, within the jurisdiction of the Forest Settlement Officer under Section 11.
12. It is contended by the appellant that the rights of way, pasture and forest produce referred to in Clauses (a), (c) and (d) of the Section are rights to bo exercised on the land itself, and that, by analogy, the right to a water-course referred to in Clause (b) must be of a similar restricted kind. There is, in our opinion, no ground for such a limitation, but even if it were otherwise, the right which the plaintiff claims was such as falls within the words 'a right in or over any land' in the first line of the Section, and was, therefore, a right in respect of which the Forest Settlement Officer had jurisdiction to adjudicate under Section 10.
13. In a word, the right claimed was one on which the Forest Settlement Officer had a right to adjudicate either under Section 10 or Section 11, and in either case, the appellant's objection that he had no jurisdiction tails. The result is that on this ground alone the decree of the Subordinate Judge dismissing the suit must be upheld.
14. It was, however, urged that even if the plaintiff had not an exclusive right to the water of the stream, he had a right as a lower riparian proprietor to obtain an injunction to restrain the defendants from using the channel inasmuch as such user was in excess of the third defendant's right as a higher riparian proprietor. In regard to this we observe that neither in the plaint, nor when framing issues, did the plaintiff rely on his rights as a riparian proprietor, or raise any issue as to whether the defendants had used the water in a manner not justified by their riparian rights, and the question has not been tried. Considering how long the matter has been in dispute we do not think we should be justified in allowing the plaintiff to raise at this stage a fresh issue of fact which he might and ought to have raised in the lower Court.
15. We must, therefore, dismiss the appeal with costs.