1. Defendants 2 and 11 to 13 are the appellants in this appeal and there are various questions raised as to the rights of several ayacutdars holding wet lands under a tank-as to how the rights to take the water to the several fields are to be regulated. The plaintiffs filed the suit for a declaration that they had the right of taking the water of the tank which is the source of irrigation to certain wet fields which bear S. Nos. 2757, 2759, 2760 and 1147. A plan was prepared by a Commissioner appointed by the Court which was marked as Ex. C and this plan will be referred to in my judgment. A reference to Ex. C shows that the fields owned by the plaintiffs are all to the east of a channel shown as the surplus channel. The appellants are the owners of Sections No. 2765 which is situate to the west of this surplus channel. There are two tanks known as Karisalkulam tank or Pudu tank and Sengulam tank or Lakshminarayanapuram yeri. As regards the lands which are situate to the west of the surplus channel, the slope of the land is from south to north and from west to east. There is a channel shown with the letters L-M-P-O-N, N being the point of the junction of the channel with the surplus channel already mentioned. Plaintiffs' claim is that all the water which came on to the southern portion of 2765 was after irrigating that portion finding its way into the surplus channel and that sometime before 1917 the channel L-M-P-O which was till then existing was extended to the point N so that O-N also came into existence and that the water on the southern portion of 2765 used to find its way into O-N and discharge itself into the surplus channel. The plaintiffs claim that with the water flowing into the surplus channel, they were irrigating the fields which are mentioned already. The channel which took off the surplus water of the tank is the irrigation channel for the plaintiffs' fields. The right of the plaintiffs to take such water as is flowing into the surplus channel is not denied. The point of dispute between the parties is whether the plaintiffs are entitled to insist upon the defendants keeping O-N in the state in which it was for sometime before the disputes arose or whether the appellants through whose lands L-M-P-O-N passes are entitled to make certain alterations which they did in or about the year 1987 with the main object of leading the water which came on to the southern portion to the northern portion as well. The appellants say that the whole of the field 2765 is also registered as wet ayacut under the very same tanks Karisalkulam and Sengulam and that they are entitled to irrigate the whole of the field before letting off the water into the surplus channel. It is primarily the duty of the Government which levies wet rate from both the plaintiffs' and from the defendants' lands to regulate the water supply so as to ensure an adequate supply to both the lands. It is unfortunate that in this case in spite of an attempt made by plaintiff 1 and others the revenue authorities remained indifferent and that attitude has led to this litigation.
2. Water flowing through the tank sluices is ordinarily intended to irrigate the lands classified as wet under a tank. There is no separate supply channel taking off from the sluices leading water to the plaintiffs' lands. The surplus channel is mainly designed to take off the surplus from the two tanks. Normally, it is only when there are heavy rains that the tanks will surplus and surplus water as such will get into this channel only then. It is obvious that if that water is all that the plaintiffs are entitled to take, their lands may not get an adequate supply of water. Plaintiffs say that the mamool or the practice obtaining in this village is what is known as field to field irrigation. Under this system each wet field is not provided with a separate irrigation channel. The tank water is led through a big channel taking off from a sluice and there are smaller channels leading off from the main channel taking the water to the various fields. Even these field channels as they are called do not reach every wet field and in several cases after irrigating one field, the tank water flows over the ridge of that field or by percolation or by a cut or vent in the ridge of the upper field into the lower field. Even in cases where there are no supply channels leading to every field, it is not invariably a out or vent that is made. Particularly in cases where the wet fields are manured and that with artificial manures, it is obvious that if a vent or cut is made, all the essence will get on to the lower field and very serious injury will be caused to the owner of the upper field. It is not therefore possible to lay down the rights of the owners of the upper fields and lower fields which will be of general application and Courts have to guard themselves against laying down any principle which might in other cases work very great hardship. It looks to me after having heard elaborate arguments from the learned advocates on either side, that the solution of such a question must depend upon the practice obtaining in each village or under each tank. Even in cases of two tanks in the same village the practice may differ according to the exigencies of the situation.
3. The primary duty of regulating water supply to all the fields registered under the ayacut of a particular tank is on the proprietor or zamindar or the Government. In the case of ryotwari areas, the Government has got a primary duty of regulating the water supply and of indicating the source of supply. They may substitute one source for another and a ryot holding ryotwari lands under the Government has no right of complaint if instead of one source he is asked to take water from another source provided an adequate supply of water for his lands is ensured by the new source of supply. No doubt the Government will not be entitled to interfere with the old source of supply until a new and equally efficient source of supply is provided. Various interesting questions have been argued at the Bar. Whether in a case where the tank water after coming through an irrigation channel spreads itself over a field which is irrigated by it and then flows over the field ridge on to another field or into an intermediate channel which in turn irrigates another field, the right of the lower owner in such a case is really a right to insist upon water from an artificial water source being always ensured to him, whether it is surface water in the strict sense of the term that the owner of the lower field is claiming. If it is the one or the other, difficult questions will arise because except in a very extraordinary case, the lower owner may not be entitled to insist upon the surplus being allowed to flow on to his field, though by continuous user for over the statutory period, the upper owner may acquire the right of discharging his surplus water on to the lower field. The right of the owner of the upper field to drain off his water into the lower field has nothing to do with the claim of the owner of the lower field to insist upon the surplus always being allowed to flow into his field. Cases which deal with the former may not be of use in dealing with the latter question.
4. That rights can be acquired in artificial water course is well settled. The Judicial Committee had to consider in Rameshwar Pershad Narain Singh v. Koonj Behar Pattik (1979) 4 Cal. 633, a case where after filling the tank of the defendants, water used to flow out through an artificial channel and fill up a tank from which water was taken to the plaintiffs' lands. The defendants prevented this flow of water and diverted it by cutting an opening and otherwise bunding up the channel which took off the surplus water from the defendants' tank at a point between the defendants' tank and the tank irrigating the plaintiffs' lands. The defendants' tank was an artificial water course. So also was the channel that led the water from the one tank to the other. The Judicial Committee laid down the law thus:
The right to water flowing to a man's land through an artificial water course, constructed on a neighbour's land, must rest on some grant or arrangement, proved or presumed, from or with the owner of the land from which the water is artificially brought, or on some other legal origin. Such a right may be presumed from the time, manner and circumstances under which the easement has been enjoyed.
On page 637 they said:
There is no doubt that the right to the water of a river flowing in a natural channel through a man's land, and the right to water flowing to it through an artificial water course constructed on his neighbour's land, do not test on the same principle. In the former case, each successive riparian proprietor is, prima facie, entitled to the unimpeded flow of the water in its natural course, and to its reasonable enjoyment as it passes through his land, as a natural incident to his ownership of it. In the latter, any right to the flow of the water must rest on some grant or arrangement, either proved or presumed, from or with the owners of the lands, from which the water is artificially brought, or on some other legal origin.
If, for instance, there was a mill on the upper land and in the working of the mill water was let out and was received by the lower owner, the lower owner cannot acquire a right to insist on the water being let out to his fields even though the water was being so let out to his land for a very long time. But if as in the case before the Judicial Committee, the defendants' tank was of a permanent nature and the construction of the tank lower down and of the channels connecting the two and taking off water from the two to the respective fields all indicate a permanent and connected system of irrigation under the two tanks beneficial to both estates, the result would be that the owner of the lower tank would be entitled to insist upon the water being let down to it from the upper tank and a presumption of a lost grant can be made. To the same effect is the decision of this Court in Rayappan v. Virabhadra('84) 7 Mad. 530.
5. Then the mere fact that the water coming to the plaintiff's lands flows over the defendants' land over the whole surface does not conclude the question. It would depend upon the circumstances proved in each case whether even in such a case, the owner of the lower field would not be entitled to acquire a right by easement. The decisions in Ramasami Naicker v. Rasi Naicker A.I.R. 1915 Mad. 852 and Husain Sahib v. Subbayya A.I.R. 1926 Mad. 449 deal with the rights of the upper owner to let off the water which he does not want on to the lower land. It is laid down that an owner of an upper agricultural land is entitled to let his water flow in its natural course without any obstruction by the owner of the lower land and that the owner of the lower land is not entitled to raise any bund on his land which will have the effect of seriously interfering with the upper owner's cultivation. In the latter case, this rule was held to be applicable not only to lands situated in the country but also in towns and an earlier decision that for the towns a contrary rule prevails was overruled. The right of the owner of the upper field extends not merely to rain water which comes naturally on it but also to water which comes in carrying out agricultural operations; the owner of the lower field is bound to receive the water. In the former case it is termed a natural right and in the latter case a customary right: see Kasia Pillai v. Kumaraswami Pillai : AIR1929Mad337 where their Lordships say on page 431:
In these circumstances, we have no doubt that the appellant is entitled by custom to discharge into the respondent's lands the water coming into his land for ordinary agricultural operations and he has a natural right to discharge the surplus rain water also into the plaintiff's lands. He can exercise this right by opening vents in his bund so long as no damage is caused to plaintiff.
To the same effect is the decision of Venkata. ramana Rao J. in Nagaratna Mudaliar v. Sami PillaiA.I.R. 1936 Mad. 682 where the learned Judge points out that the right to let out the water brought on to his land for agricultural purposes may be viewed as one to be based upon the presumption of a lost grant and he also pointed out that if for a sufficiently long time water brought on to the upper land by artificial means for agricultural purposes is allowed to pass without interruption by the proprietor of the lower land into it, one can easily infer a custom and that the customary conditions of the locality require such user. The learned Judge also said that the doctrine of a lost grant can be invoked in aid of the inference of such a custom. There are very few decisions which deal with the converse case of the right of the owner of the lower field to insist upon water being let down to his land. The decision of the Judicial Committee in Rameshwar Pershad Narain Singh v. Koonj Behar Pattik (1979) 4 Cal. 633 and the decision in Rayappan v. Virabhadra (1984) 7 Mad. 530 have already been referred to. They deal with cases where water was flowing in a well defined course from the upper tank into the lower tank. The channel connecting the two was interfered with and the right of the owner of the lower tank was established as it was found that the tanks, the channels and the user all indicated more or less a permanent state of things and not temporary in character.
A number of English decisions were cited, but before referring to them it is necessary to bear in mind the essential difference between the conditions prevailing in England and those prevailing in this country. As pointed out in Basavana Gowd v. Narayana Beddi A.I.R. 1931 Mad. 284 by Wallace J.
Although both sides have to a certain extent relied upon English cases, my considered view is that conditions in England are so different to those in the District of Bellary that I deprecate calling in aid English law on this subject and confess that I do not myself find it of any assistance here. In the first place, irrigation rights such as have been set out above to supply of water for irrigation from recognised Government sources are unknown in England, and such rights are therefore unknown to English law. Secondly, the running of a river current down its natural bed in the dry season a few inches below the sandy surface is a phenomenon unknown in England. The underground water to which the English cases apply is usually water between layers of subterranean rock or clay so hidden that no one can guess what their course is. In this country, it is fairly safe to say that the under current of a river is probably flowing down the river bed and that its course is defined in the sense that one will probably be able to tap it somewhere in the river bed, and the water thus is found in, and has not left, the recognised irrigation source, namely, the river. Finally, the English cases are usually contests between owners of the surface property under which the subterranean water originally was and the owner of the surface under which it was subsequently found and the crucial question was whether the ordinary rights of ownership extended to such water.
Krishnan Pandalai J. says this on p. 815,
Finally, I share with my learned brother, doubts about applying the doctrine of percolating water flowing underground in undefined channels as settled by English decisions to the water carried in the sandy bed of an Indian river in the dry months between monsoon and monsoon. This feature of our rivers is due to the physical features of the country and other natural causes. The monsoons produce floods and torrents of a rapidity not known in Western Europe. The tropical heat produces rapid evaporation. But after the floods have subsided and the sands dried up in the scorching sun, the cunning river still saves up in her sandy mantle, ample store of life-giving water which only requires the thin covering to be pushed aside to come to the relief of the thirsty villager and his crop. Some of these rivers have no flow at all in the dry weather. More frequently there is a straggling, thin stream winding along the bed. Shall we say that all water under the river sand is percolating water flowing in undefined channels? Or shall we say that the river remains an underground 'stream' covered with a coating of sand -the flow being still continuous though slow and invisible__a body of water still flowing within the defined channel of the river bed? The distinction between the two cases is not whether the water is found above or below the ground or whether the movement of water particles is or is not scientifically to be ascribed to percolation; but the distinction is whether the water can as a whole be reasonably spoken of as moving in one direction within a definite and unknown channel. Having regard to the description of a stream given by Lord Watson and Lord Halsbury in McNab v. Robertson (1897) A.C. 129, I respectfully submit that the question is not capable of a general answer applicable to all conditions to be found on the globe, and that the doctrine of percolating water being publici juris must be applied to Indian rivers with due regard to the reason of the rule-which is ultimately one of convenience.
On pages 818 and 819 the learned Judge pointed out the various points of departure of the Indian law from the English law on the law of waters. As pointed out by one learned Judge, water which is regarded as a common enemy in England is in India regarded as a common friend. It is said that the water which is the subject of dispute in this case is surface water and that therefore no rights can be acquired in regard to such water. It is enough to refer to the decision in Adinarayana v. Ramudu A.I.R. 1914 Mad. 507 where this question is elaborately discussed and where it is pointed out that if water comes from a recognised course, flows in a defined channel, then spreads itself out over a field or over a particular area, and then after leaving the field irrigates another 'field direct or flows into a channel which in turn irrigates another field, it is not a case of surface water as is understood in English law in regard to which no rights could be obtained. On page 309 the reasons why no right can be obtained over surface water are dealt with. A quotation from the decision of Parke B. is set out to the following effect:
This is the case of common surface water rising out of springy or boggy ground, and flowing in no definite channel, although contributing to the supply of the plaintiff's mill. This water having no defined course, and its supply being merely casual, the defendant is entitled to get rid of it in any way he pleases.
The observation of Platt B. in another case is to the following effect-'The plaintiff could not insist upon the defendant maintaining his fields as a mere water-table.' Lastly the judgment of Lord Hatherly L. C. in Grand Junction Canal Co. v. Shugar (1871) 6 Ch. A. 4830 was referred to where the Lord Chancellor said this:
Wightman J. there laid down the law very plainly in giving the opinion of the Judges upon the subject, and the distinction was there drawn-and, I should have thought firmly established - between water which comes no one knows exactly whence, and flows no one knows exactly how, either underground or on the surface, unconfined in any channel, either as rainfall or from springs of the earth, which may vary from day to day, or sprung up from beneath the surface in a direction which no one knows between that species of water and water once confined in a regular channel.
Then Sundara Ayyar and Sadasiva Ayyar JJ. said this:
His Lordship's description is quite inapplicable to water flowing into a field from a known channel and passing along the field onwards into another field, though not over a confined tract in the former field but along its whole area....When the flow of water on one person's land can be identified with that on another, there is no reason why a right to such flow should not exist although the water may flow along an intervening piece of land. 'A mere right of a drainage over the general surface of land is very different from the right to the flow of a stream or brook across the premises of another. . . .In each case, the question whether or not particular water is surface water is one of fact to be determined by the circumstances attending its origin and continued existence. If the water is spread out and flows sluggishly over the surface, losing itself by percolation and evaporation, it is surface water, although it has its source in springs. But the mere fact that the water spreads out at some places, and flows sluggishly without sufficient force to form a channel for itself, does not make it surface water if the flow has sufficient force to maintain itself, and it is subsequently gathered together into a channel so as to form a water-course. The chief characteristic of surface water is its inability to maintain its identity and existence as a water body.... Well defined existence arising from an ascertained course appears to be the real test in coming to a conclusion against any body of water being regarded as merely surface water.
In the present claim it is no answer to say that the water spreads itself over the field of the defendant, i. e., over a considerable portion of S. No. 2765. Nor can the rule of rights not being ordinarily acquirable in regard to water coming through an artificial water course, be applied, because the facts of this case are similar to the case in Rameshwar Pershad Narain Singh v. Koonj Behar Pattik (1979) 4 Cal. 633 and Rayappan v. Virabhadra (1984) 7 Mad. 530. Here is a system of irrigation; tank channels take off from the tank and irrigate the lands of the plaintiffs. If all that the defendants can postulate is that the water claimed is from an artificial channel or that it spreads over the whole area of a particular field, before it reaches the surplus channel which irrigates the plaintiffs' lands, the defendants would fail and the plaintiffs' suit would have to be decreed. But the point for decision in the present case is this : whether the defendants are entitled to irrigate the whole of 2765 which is a single field registered as the ayacut under this very tank before the water is allowed to go on to the surplus channel which directly irrigates the plaintiffs' lands. It is said that for several years the lower portion of 2765 which is to the south of M.-N.-O.-P. was in such a state that water which irrigated that portion of the field flowed into the surplus channel and that that water was not taken to the northern portion of the field. What was done by the defendants in 1937 or thereabouts was to raise the level of the whole bed of the channel from M to N along its course M-P-O-N and introducing an undervent at the point 'O' to lead the water which left after irrigating the lower portion of S. No. 2765 to the northern portion of 2765. Though India is mainly an agricultural country and cultivation of lands under tanks is a normal feature in several parts of it, even in the twentieth century we find that several portions of land irrigable under a tank are not completely brought under wet cultivation. Agricultural operations still go on reducing the level of one part of the land which till now has been in a higher level and levelling up the whole field so as to enable the water from the tank to reach the whole of the field. If an entire field is irrigable under a tank and a part of it situated in a higher level was not till now irrigated by the water from the tank, does that fact preclude the owner of that field from carrying on the agricultural operations and from levelling the land in such a way as to irrigate the whole of the field from the tank? In such a case if till such operations are carried on and the level reduced to a common level or something of the kind, water irrigating a low portion of his land was after irrigating that portion of it finding its way into another field or into a channel which irrigates another field, can the owner of the lower field insist upon the higher portion of the upper field being kept in the same state as before and to prevent the owner of the upper field from irrigating the whole of his field before letting out the water into the lower field or to the surplus channel? It is here that I find great difficulty and neither side has been able to help me with any authority which is of any help on this question.
6. In 1886 it is clear that the channel O-N was not in existence. The channel L. M. P. stopped with 'O.' O-N must have come into existence subsequent to that date and before 1917 as it is found in the survey plan of 1917. But it is not possible to say when exactly it came into existence. O-N was interfered with by the defendants in between 1920 and 1928. There was litigation about it and after 1928 the channel has not been in existence for over 20 years before the date of suit. The suit was filed in 1939. Hence it is not possible to rest the plaintiffs' case upon any right by prescription. The way in which their right is put is that their fields 2757, 2759, 2760 and 1147 are all included in the ayacut of the tanks. The surplus water of the tanks is not ordinarily sufficient for the irrigation of their fields and for ever so long it is only the water that got into the surplus channel after irrigating the lands to the west of it that has been irrigating the plaintiffs' lands and therefore the plaintiffs are entitled to a continuance of that state of things. Expressed thus in general language, the proposition advanced by the learned advocate for the plaintiffs-respondents is not open to any serious objection. But the trouble comes in seeking to apply that rule to a case where the owners of the lands situate to the west of the surplus channel claim to irrigate the whole of the lands before the water is allowed to get into the surplus channel. They say that their land also is included in the ayacut and that therefore they are also entitled to irrigate the whole of their field with the water of the tank. For the appellants it is pointed out that except by some such arrangement as the one which they introduced in 1937, it is not possible to irrigate the northern portion of their land. The fact that it was not till now cultivated with the water coming on to the southern portion of the field, they say, is no answer to their right to take to the northern portion the water which comes on to the southern portion of the field. They are willing to concede that the mere fact that the water spreads over the whole surface of the southern portion is no answer to the plaintiffs' claim. But what is said is that the northern portion of the field is entitled to be irrigated by the tank water and that once the tank water comes to any portion of their field, they are entitled to take it to the whole of their field before letting it down into the surplus channel. On the other hand the respondents' advocate points out that along L-M-P there are branch channels going northwards into the northern portion of the field and that they are sufficient to irrigate the northern portion. But this is disputed. It is said that the appellants are not anxious to take the water to the northern portion unless it is necessary through a sub-vent at point 'O.' They say that the channels branching off L-M-P are not enough. The respondents rely upon the fact that till 1937 the northern portion was being irrigated either by the branch channels leading off from L-M-P-0 or from the main channel flowing along the western side of 2771, 2775 and 2765 and marked with letter 2776 and that the appellants cannot claim to an increased water supply. But I am not inclined to agree with this view. It may be that there is a channel flowing along the western side of the northern portion of the field and that some portion of the northern field may be irrigated from the water flowing along the channel in 2776 and that some other portion also may be irrigated by the channels leading from L-M.P-O. But the question is whether these channels were irrigating the whole of the fields and for this question there is no answer. There are assertions on the one side and denials on the other. The plaintiffs assert that it is enough and the defendants say that it is not. It is unfortunate that the revenue authorities did not intervene though requested to do so. As pointed out by Krishnan Pandalai J., in Basavana Gowd v. Narayana Reddi A.I.R. 1931 Mad. 284 it is the duty of the Government to supply enough water for irrigating all the lands which are registered as wet under a particular tank. Wallace J. says this on p. 797:
The general law of this Presidency governing the right to water as against Government of a ryotwari wet land holder is well settled and admits of no doubt. The ryot is entitled to be given such supply of water as is necessary and sufficient for the irrigation of his registered wet fields. He must accept that supply from the irrigation source approved by Government as the source of supply for his fields, and he must accept the method or machinery by which Government supplies that water. He has no right to insist that his supply shall come in any particular source or any other source than that recognised by Government or that it shall come by any particular channel, nor can he prescribe against Government for such right by user otherwise for any length of time. It is open to Government to alter at any time the manner and method by which it supplies the necessary water to him and he has no grievance or cause of action thereon. It follows that between him and Government there is something in the nature of a contractual obligation under which Government undertakes to regulate, distribute and furnish to him his necessary supply in the manner authorised by it as the proper and usual manner until and unless Government has provided him with another, equally efficient....Government by undertaking the obligation to supply him with water also undertakes that it shall be at his disposal by the usual and customary method, that is by channel constructed either by Government or by the ryot or both, until and unless some other method is adopted...In the view I have taken that the subsurface water of the river bed is the Government source of supply, it is clear that Government cannot shelve its duty of seeing to the equitable distribution of this supply, and that the Revenue Divisional Officer was not justified in his refusal to interfere, when the ryots of Malyam approached him with complaints of shortage of water.
Krishnan Pandalai J. after laying down the right of a ryotwari proprietor in similar terms said this on page 810:
Whatever the legal character of the right, it is now settled that Government themselves cannot interfere with the accustomed mode of supply unless and until they substitute another and equally efficient mode, and if they do, will be legally liable to the injured ryot....and that third parties like other ryots similarly interfering will be likewise liable...The rights of ryotwari land-holders to water for their holdings is an incident of ryotwari tenure whether it be regarded as having a contractual or proprietary origin. 'Whether ryots may by prescription or otherwise acquire a right against Government to more water or to take it in a particular way does not arise in this case. Therefore there is no question in this case of dominant and servient heritage essential to easements. Nor is the right of ryots to enjoyment of their rights of water undisturbed by other ryots and easement as against the holdings of those ryots. But it is the ordinary right of all who have rights to the undisturbed enjoyment of those rights, undisturbed by acts which the doers have no right to do. The plaintiff therefore was subjecting himself to an erroneous and gratuitous limitation when he founded his claim on prescription as apparently his advisers did in the lower Court, as the language of issue 1 shows...The Government being bound by law to furnish water to the appellants for their cultivation and to substitute another sufficient source of supply before interfering with the registered source customarily in use, which ex hypothesis is the water percolating into the Malyam channel, would be presumed to have bound themselves not to do anything to interfere with the existing source of supply till they had found the substitute.
Even taking all that the Subordinate Judge says to be correct and that the alterations complained of were brought about in or about the year 1937 and that for a long time prior to 1937, water was collecting in the lower part of the defendants' field 2765 and that after irrigating that portion was finding its way into the surplus channel, I am of opinion that the plaintiffs cannot insist upon that state of things continuing and that the only remedy of the plaintiffs is to approach the Government and to request that their lands also receive an adequate supply of water. If the Government which has got the right of superintendence and the right of regulating the supply of water to all the wet fields ensures an adequate supply of water to the defendants' land S. No. 2765 they might as part of the same arrangement direct the defendants to let out water through O-N or through some other channel for some days in the week or for some hours in the day as was suggested by the respondents' counsel. All this is for the Government but not for the Court. As things stand at present, this Court can only say that the defendants have a right of irrigating the whole of their land before being obliged to let out the water into the surplus channel.
7. In the result the plaintiffs' suit will have to be dismissed holding as I do that the defendants-appellants are entitled to have the whole of their field irrigated before the water that comes on to their field is allowed to flow out subject of course to the undoubted right of the Government to regulate the water supply consistent with the rights of the parties as declared herein. Any rights which defendant 4 may have under any contract which he might have made with defendant 1 are of a course not affected by anything said in this judgment. The appellants -will have their costs in this Court from the plaintiffs-respondents. In the two lower Courts the parties will bear their own costs. No leave.