1. This is an appeal by plaintiffs 1, 2 and 5 complaining of the form in which the injunction has been framed by the learned Subordinate Judge. The plaintiffs brought the suit as lower riparian proprietors complaining that the defendants had put up a bund higher up thereby interfering with the flow of water in the stream. They asked for three reliefs, viz., declaring (1) that the defendants have no rights to use the water of this river for irrigation purposes at all; (2) directing the demolition of the dam already put up, and (3) prohibiting the defendants by means of a permanent injunction from ever putting up any dam across the river higher up the Komarapalayam anicut. The defendants in their written statement did not plead any special right based upon contract or custom but they contended in para. 4 that
the use of the water of a river by putting an ordinary dam across it is one of the commonest methods adopted in this presidency. These defendants are entitled to put a dam across the aforesaid river within their 'mittah' limits and divert the water for irrigation of their lands adjoining.
2. And in para. 5 they added
the use of the water of the river in the aforesaid manner is common, reasonable and cannot prejudice the plaintiffs or any other riparian owners lower down.
3. It is obvious from the written statement and from the judgments of the Courts below that the defendants rested their case only on their rights as upper riparian owners and not on any special tights founded on contract, custom or prescription. Issue 2 raised the question:
Are the defendants entitled to put up any dam and if so to what extent?
and issue 3 raised the question:
Do the plaintiff sustain any damage or injury by reason of the defendants putting up a dam and are they entitled to maintain an action?
4. The learned District Munsif granted an injunction prohibiting the defendants 'from ever putting up any dam above the Komarapalayam first anicut across the Perar or Koraikoil river.' The Subordinate Judge modified the form of injunction and expressed it in the following; words, viz., that the defendants are prohibited
from putting up such a dam as will cause diminution to the flow of water to which the plaintiffs could be entitled on this date, inasmuch as the defendants are entitled to take water to their fields by putting up a dam or otherwise for irrigating their land abutting the stream.
5. It is obvious that neither of these injunctions is correct in law or satisfactory as to their terms. The particular dam of which the plaintiffs complained in their plaint had admittedly been removed and no mandatory injunction for its removal is at present necessary. The only matter that remains for consideration is as to the form of the declaration of the rights of the parties and the form of the preventive injunction to be issued. The plaintiffs do not maintain the extreme position embodied in prayer (a) in their plaint, viz., that the defendants have no right to use the water of this river for irrigation purposes at all. The respondents do not maintain here the position taken up by the Subordinate Judge that the plain, tiffs' right should be measured with reference to the flow of water or to their rights as on the date of the appellate decree. Nor is the statement in that decree that 'the defendants are entitled to take water to their fields by putting up a dam or otherwise' an accurate statement in that unqualified form because it does not even import the well-known limitation that there should be no material injury to the flow of water down the stream.
6. Mr. T. M. Krishnaswami Ayyar, for the appellants contends that the injunction to be issued in the case must in terms prohibit anything in the nature of a dam being put up by the defendants apart from any question as to whether or not it materially interferes with or diminishes the flow of water in the stream. Mr. Venkatachariar however contends that there is no such absolute restriction recognized in law and that so long as the flow of water in the stream is not materially prejudiced or interfered with an upper riparian owner may have a right in certain circumstances to divert water for the irrigation of his lands even by the putting up of a bund. He relies in this connexion upon certain observations in the case in Debi Prasad Singh v. Goynath Singh (1897 24 Cal. 865 and Sheo Narayan Singh v. Chandrathal (1911) 10 I.C. 181. In another case Secy. of State v. Ambalavana Pandara Sannadhi 1914 Mad. 552, the learned Judges referred to the possibility of the exercise even of riparian rights by the putting up of a dam. In the case in Narasimha Sastrial v. Secy. of State (1891) 1 M.L.J. 167, the facts show that a dam had been put up and the learned Judges in the High Court did not make that by itself an objection. It seems to me that it is not safe to lay down as a general or absolute proposition that under no circumstances can an upper riparian owner resort to particular methods of diversion irrespective of the question whether such method of diversion materially diminishes the flow of water or not.
7. The very case in Secy. of State v. Subbarayudu 1932 P.C. 46, to which Mr. Krishnaswami Ayyar drew attention also recognizes the possibility that under certain circumstances and provided no material injury is done water may be diverted by the upper riparian owner for the purpose of irrigation subject to the limitation that the amount taken shall not be so much as to hurt the rights of the inferior owner to have the stream passed on to him practically undiminished : see pp. 277 and 278. In these circumstances, I think it will be best not to make any reference in the decree either by way of authorization or by way of prohibition to erection of a dam or other method that may be employed by the upper riparian owner. The rights of the upper and lower riparian owners are respectively declared in Clauses (j) and (h), Section 7, Easements Act, in the light of the rights so declared. I think it will be best to frame the decree in the following terms:
Declare (that the defendants are entitled to such rights in the suit stream as belong to an upper riparian owner and that the defendants were not entitled to put up the dam complained of in the plaint and restrain them, their agents and servants, by an injunction from interfering with the suit stream in such a manner as materially to diminish the flow of the stream.
8. The memorandum of objections is dismissed without costs. The appellant shall get their costs of this second appeal from respondents 1 and 2.