1. This is an appeal from a decree of the Subordinate Judge, Madura (West), dismissing' the plaintiff's suit. The first plaintiff is a landowner of Madura who owns, among other villages, the inam village of Ananjiyur and the 4 villages, Koridagai, Thoothai, Pappangnlam and Karisalkulam, formerly attached to the Sivaganga Zamindari. Of Kondagai, the principal village, he is the Sub-Division Zamindar. Thoothai and Pap-pangulam are riparian villages. Karisalkulam, Ananjiyur and Kondagai are non-riparian but are directly or indirectly watered by small channels from the Vaigai. All the five villages are situated below Madura. On behalf of. himself and other riparian proprietors, the first plaintiff filed this suit early in 1901 together with a petition under Section 30, Civil Procedure Code (Act XIV of 1882), alleging the following causes of action:
(i) That the defendant had illegally and wrongfully constructed in June 1900 a work of a permanent and substantial character over the crest of the Peranai dam to the length of 9291/2 feet thus raising the height of the dam by 1 foot 9 inches in parts and 2 feet 3 inches in other parts and causing an obstruction to the natural flow of the water and materially diminishing the supply to the lower riparian owners.
(ii) That the defendant had about June 1866 illegally and wrongfully opened a new channel 100 feet wide in place of the old Vadagarai channel which was only 20 feet wide and thereby caused a larger volume of water to be diverted than he was customarily entitled to and thus also diminished the flow of water to the lower riparian proprietors.
2. He prayed for a declaration that the defendant had no right to increase the height of the dam or the width of the old channel, for an order for the removal of the obstruction on the dam, for the closing of the new channel and for a permanent injunction.
3. The defence was shortly as follows:
(i) That the defendant as owner of the bed of the Vaigai and the water flowing therein has by the customary law of India full power to regulate in the public interest the distribution of the water of a natural stream and consequently that even as riparian proprietors, the plaintiffs are not entitled to the undiminished flow but merely to the amount sufficient for their customary needs.
(ii) That as a fact the defendant had not diminished but increased the usual flow.
(iii) That, as the first plaintiff knew, the two works complained of had been executed by the defendant in order to utilise the large increased supply of water let into the stream by the defendant at a point 86 miles above the dam from what was known as the new Periyar reservoir, constructed by the defendant in the Travancore Hills after years of labour and at a cost of over a crore of rupees for the benefit of the district which was frequently affected by famine.
4. The Subordinate Judge who tried the suit framed 14 issues which will be found in paragraph 4 of his judgment. He gave a definite finding, however, only on the ninth issue which runs as follows:
Have the opening of the new channel and the construction of the new works at the Peranai injuriously affected or are they likely injuriously to affect the flow of water enjoyed by the plaintiffs before the introduction of the Periyar water into the river?
5. On this issue he found against the plaintiffs (on whom ho casts the burden of proof) and dismissed the suit.
6. For the purpose of this decision, the Subordinate Judge found (though this issue was not specifically raised on the pleadings) that the defendant was a riparian proprietor at the north end of the Peranai dam. He hold that there must be a permanent injury and not a prospective one or the suit was premature, that the defendant was entitled to take out the water that he put in 86 miles higher up the stream and lastly that no substantial injury had been proved.
7. It will be convenient to describle briefly the nature of the Vaigai river and the character of the irrigation works carried out by Government. The Vaigai is the chief river in the Madura district and drains the major portion of it. From its mouth, near Ramnad, to the source of its chief tributary, the Suruliyar (called the Vyravanar in its upper reaches), its length is about 200 miles. Nearly midway and on its south bank, lies the town of Madura. Some 20 miles above Madura and 40 miles below the junction of the Vaigai and the Suruliyar was an ancient 'anicut' called the 'Peranai' or the great dam. It crossed the river obliquely from south to north and was 1,319 feet in length. It conducted the water of the river without a head sluice down an old channel on the north bank called Vadagaran' which irrigated some 4,200 acres of Government land. The dam and channel were maintained by Government. Some 2 1/2 miles below the ' Peranai' was another dam called Chittanai,' or the small dam. This is also an ancient work maintained by Government which, by means of a similar channel called the 'Thengarai' irrigates a largo acreage on the south bank of the Vaigai.
8. The Vaigai is not a perennial stream throughout its course. At ordinary seasons the bed of the river contains a thin and shallow stream as far as the Chittanai dam. Below that point the river opens out into a wide bed of deep sand by which even moderate floods are absorbed before reaching Madura. For another 40 miles or so a subterranean flow can be detected, but at about the point where the river enters the Ramnad Zamindari, even this is lost. Below the Ckittanai the dams cease as the perennial surface flow has ceased but the flood waters are still abstracted by means of numerous channels having temporary dams run out in a slanting direction to midstream. The water thus captured is stored in tanks or reservoirs and the supply is supplemented where possible in the dry season by water drawn off from the underground flow. This underground flow is secured by digging channels in the sandy bed of the river (often for a considerable distance) in the hot weather and leading the water to the mouth of the channel it is intended to supply. It may be observed that as all the channels both above and below the Chittanai are primarily intended to intercept as much flood water as possible to store the reservoirs they are made much larger than would be the case if merely intended to convey the small normal supply. It must also be noted that the water is never utilised at the point of capture as it has to be conducted a considerable distance before it reaches land at a level capable of being irrigated by direct flow.
9. It is to be observed that it was no part of the original Periyar Project that the Peranai dam should be raised. After three years' experience with the Periyar water, however, it was found that the head of the new channel and the bed of the river above the old dam had silted up to such an extent that the bed of the stream was nearly level with the top of the dam. In India all the dams and channel heads in sandy river beds are liable to silt up in this way, though usually it is a result that it takes several years to produce. The obvious remedies are two. Either the silt must be removed or the dam has to be raised. There are, however, limits to the application of the latter remedy. If the banks of the river are low, as in this case, a few feet added to the height of the dam would result in the river carving out for itself another channel. On the other hand, the removal of silt is no / simple or easy matter. When a river has ' silted up so that its bed is level with the top of a six feet dam, it means that not merely the portion immediately in front of the dam has become silted up but that the whole length of the river through which a six feet fall has occurred has also been silted up, and this may necessitate the removal of silt for a mile or more of the river bed before tin original position of affairs can be restored. The usual practice, therefore, is, when the deposit of silt is not rapid, to apply both remedies at one and the same time to some extent. In the case of ordinary dams, this silting up being a very gradual process, it usually suffices at first to place turf along the top of the dam. A later stage is reached when this remedy no longer suffices and a permanent increase to the height of the darn has to be resorted to. There is evidence in this suit of the custom of Turing dams in general and this dam in particular, and it is shown that when the Chittanai adm was extensively repaired for the last time it was permanently increased in height. One fact must not be lost sight of, viz., that both these river dams, as originally constructed, were able to, and usually did, cut off the entire supply of water in the river except in times of flood. The only passage for water to pass below the dam at ordinary seasons was the sand sluice which will be referred to late. The mere raising of such a dam, therefore, does not in any way affect the customary flow of water in the river. When the river is in flood, the raising of the dam also makes no difference unless the dam be raised to a greater height than is necessitated by raise in the bed level of the river for when the same depth of water in the river is reached that enabled it to overflow the original dam it overflows the raised dam with equal facility.
10. So far we have merely dealt with the methods employed in restoring the 'status quo in the case when a dam has been silted up. A contrivance is also employed for preventing such silting up of the dam. All these river dams are supplied with what are called sand sluices. These are passages for water provided in the dam generally close to the mouth of the channel taking off from it, and capable of being closed at will. The sill level of such a sluice usually indicates the level of the bed of the off-take channel. In times of flood such sluices are opened with the result that the silt that would otherwise accumulate in front of the dam and the channel head is carried down the stream below the dam. The sluice can of course be utilised at other times also if the supply of water is in excess of the needs of the irrigation channel that the darn is intended to supply.
11. So far as the Peranai dam is concerned the conditions were as follows: The old dam was 1,319 feet in length and consisted of two portions with crests of different height and a sand sluice in between. The floor of the sand sluice was 619.19 feet above the mean sea level and the sluice had only three vents 3 1/2 feet square. The portion of the dam south of the sand sluice was 915 feet in length with an average height at the crest of 628.88 or 4.69 feet above the floor of the sand sluice. The portion of the dam north of the sand sluice was 375 feet in length with a height of 624.88 or 5.69 feet above the floor of the sand sluice. The upper portion of the old Vadagarai channel has ceased to exist and its width is disputed. The first plaintiff avers that it was only 20 feet wide. The real width, however, must have been about 40 feet. We may neglect the oral evidence as vague and discrepant. The fact is put beyond reasonable doubt by the following evidence. In 1882 when the Periyar Project was being investigated a plan was prepared. It is exhibit XIX and is drawn to scale. It shows the head of the old channel and the head sluice then proposed but not the one actually constructed. This plan shows that the head of the channel as it then existed was 40 feet wide and at the first bend it was about 70 feet wide. This evidence is corroborated by measurements taken after the commencement of the suit of the width of the channel at a point lower down its course where the 'Chakkarai Anicut,' a masonry work, still exists.[See the evidence of the defendant's eighth witness and, exhibits LXXI and LXXII] As already stated the old channel had no head sluice. As it was the object of the Periyar Project to divert the Periyar river into the Vaigai and withdraw the water so diverted at the Peranai dam a wider channel was required to carry the increased supply of water. To prevent an excessive supply of water being taken down the wider channel in time of flood (when the Periyar tunnel is of course kept closed to prevent waste) the new channel was provided with a head sluice. As the increased supply of water would naturally bring down more silt the sand sluice had to be enlarged. The old sand sluice was accordingly blocked up and a new sluice opened beyond the northern portion of the dam having 5 vents instead of 3 and with each vent 5 1/2ft. by 6 ft. instead of 3 by of. The sill level of the sand sluice was also lowered it being placed at 616.12 or more than 3 feet lower than the old sluice. As the sill level of the head sluice of the now channel was 617.12 feet the sand sluice was actually 1 foot lower than the bed of the channel at its head.
12. The circumstances in which, the suit came to be instituted were these. The Periyar water was first utilised for the cultivation season commencing with July 1896. By the middle of 1899 it was found that the dam and channel head had rapidly silted up in spite of the special arrangements made to prevent such an occurrence. It was then that the defendant raised the crest of the 915 feet portion of the dam, first by putting up a turf bund on it three or four feet high, and in 1900 when this was found ineffective in consequence of the turf bund being frequently washed away by floods, by erecting a more permanent structure in the shape of falling shutters with pillars in between for their support. The falling shutters wore 2 feet 3 inches high and were intended to fall flat in times of flood. The supporting pillars were 1 foot 9 inches. The northern portion of the dam was not raised. Now 1899 happened to be an unusually bad season and the first plaintiff who had not complained during the three preceding years, hearing of the turf bund on the dam, visited the spot in November of that year ' and made his first representation to the Collector-vide exhibit 0, dated 22nd November 1899. A perusal of that document shows that at that date his only objection was to the raising of the height of the dam. He complained of the turf bund erected on the southern portion and also alleged that the northern portion had been raised 1 foot by masonry. This latter complaint was apparently an erroneous surmise on his part as it was afterwards given up. He had not seen the dam before and was, therefore, not aware that that portion of the dam had always been 1 foot higher than the southern portion. He made no complaint of the width of the now channel. Exhibit E dated the 16th February 1900, his first notice of suit under Section 424, Civil Procedure Code, shows that at that date also the first plaintiff had discovered no other cause of complaint than the raising of the dam. It was not till August 1900 when exhibit F the second notice of suit was sent that the width of the new channel was also objected to. It may here be mentioned that at the present date the condition of affairs has entirely changed. The entire dam has now been removed and been replaced by a shorter structure with sluice throughout its length going across the river at right angles and carrying a road bridge. A temporary injunction to restrain the defendant from carrying out his new work pendente lite was refused.
13. From the foregoing statement it will be observed (1) that the mere raising of the dam could not effect the customary flow of water down the stream provided the dam was not raised to a greater extent than that justified by the deposit of silt (the plaintiffs did not allege that this had been done); (2) that the increased width of the channel did not diminish the flow of water -down the stream at ordinary seasons, for even in the pre-Periyar days the only water that flowed down the stream at such seasons was that which the defendant chose to allow to flow down through the small sand sluice and even this was intercepted by his own Chittanai dam 2 1/2 miles below; and (3) that in consequence of the regulator and head sluice constructed at the head of the new channel, the defendant had provided against the contingency of taking an excessive supply down the new channel in times of flood.
14. The first question we propose to consider is whether the defendant is a riparian owner at the site of the Peranai dam. The Subordinate Judge has considered the question at some length in paragraphs 15 and 15A and we agree with his decision that the defendant is riparian proprietor at the north end of the dam.
15. The Government village of Pillayarnattam has a river frontage from a few hundred feet above the dam on the north bank to a point some 6 furlongs below it and the plaintiff's case, with reference to this question, is based on the fact that at the time of the Survey of the Taluk boundry the whole width of the river was shown as outside the village. The Superintendent of the Revenue Survey explained the circumstance when in the witness box. Even if the entire river had been held by the Revenue Survey to belong to the opposite zamin village as alleged, and there is no ground for the supposition as there is no record of right as required by the Revenue Survey rules, it would still be no justification for the assertion that Pillayarnattain was not a riparian village. The plaintiff's assertion is based on the fact that the survey stones which demarcate the Pillayarnattam boundary leave a narrow strip of land a few feet wide between the village and the river. As pointed out by the Superintendent of Survey this is no indication that this strip belongs to the village on the opposite bank. The stones are so placed under the survey rules, which direct that in demarcating rivers, the stones shall be placed on the bank above the reach of floods.
16. The next question we propose to consider-and this, as it seems to us, is the crucial question in the case-is, was the Subordinate Judge right in holding that the burden was on the plaintiffs to prove damage or sensible injury and that they failed to do so. We will deal with the question of the burden of proof when we come to discuss the law. As regards the question of damage, we agree with the Subordinate Judge's finding of fact that the plaintiffs have not sustained damage or sensible injury by reason of the works which have been carried out by the defendant. It is not necessary to discuss the voluminous evidence at any great length as we have no doubt that the Subordinate Judge has correctly appreciated it. On the plaintiff's side there is nothing that, in our opinion, can be regarded as trustworthy evidence. They did not claim damages and they omitted to produce any village accounts. The latter omission is not satisfactorily explained. They appear to rely chiefly on the argument that their rights must necessarily have been injured by the defendant's acts and seek to support their arguments by inferences drawn from the defendant's own register and statistics. On the other hand, the defendant, in our opinion, has proved that the plaintiffs cannot have been injured in any way. It is proved, and Mr. Fischer himself could not deny the fact, that whereas in the pro-Periyar days the 'Vaigai river was dry for ten months in the year opposite the town of Madura (where the Kondagai channel takes its rise) it now has a flowing stream for all but three or four months. The defendant has produced the accounts of numerous villages depending on the channel below the Chittanai as well as the Thehgarai channel itself and these accounts show that in fact the villages below the Chittanai, and, therefore, outside the scope of the Periyar Project, have benefited considerably though of course not to the same extent as those that the project was designed to benefit. Amongst the accounts produced are those of two villages actually dependent on the same channel as Kondagai itself as well as those of other villages dependent on channels adjacent thereto. An examination of the account shows that the effect of the Periyar Project has been to largely increase double crop cultivation and to render the lands practically safe from savi (withering of crop for want of water) unless the season is exceptionally bad as was the case in 1899. Even the figures for 1899-1900, however, show that the villages suffered less in that year than they did in the equally bad season of 1892-1893. There is also evidence to show that lands in these villages certainly have not fallen in value. The evidence in fact would seem to indicate a considerable rise in value of land. But the evidence is not so clear as it might have been on this point. It is probable that, now that the Periyar water has been utilised for a dozen years, evidence on the question would give more definite results. The largely increased flow of water opposite Madura is accounted for in two ways. The Public Works Department registers maintained at the Peranai dam when reduced to the same formula as was employed fomerly at the Chittanai dam show that there is an increase of about 47 per cent. in the quantity of water now passing down towards Madura. To this must be added the drainage from the large area now cultivated on the north bank under the new Periyar channel. Four out of the six drainage channels from this area discharge into the Vaigai at or above the Madura bridge. In reply to these facts the plaintiffs aver that though the total supply in the river may have been increased, it does not come at the same season as heretofore and that the small hot weather freshes have been cut off and cultivation retarded. It seems to us the contrary is proved. The Periyar tunnel is closed for 2 or 3 months each year and when it is closed the channel is usually also closed for removing silt and other repairs. At other seasons the bed of the river being left wet by the Periyar water the freshes that come down no longer waste their substances in filling the sandy bed and, therefore, water goes further than it formrely did. It was admitted by Mr. Fischer (first witness for the plaintiffs) and also by his expert witness Mr. O' Shaughnessy that heavy freshes were not appreciably affected by the new channel. In view of the fact that there are some 60 channels drawing off water between he Chittanai dam and the first plaintiff's Karisalkulam channel it is doubtful if the early freshes which were generally slight ever reached the first plaintiff's lands. The dam registers and exhibits LXVIII, CXVI, CXVIII and CXIX show that the early freshes have been more frequent since the Periyar tunnel was opened.
17. There is no evidence to justify the assertion that the defendant has ever drawn off through the now channel more water than he was entitled to take from the normal river supply. When the river is in flood the Periyar tunnel is left closed. The new channel irrigates over 11,000 acres of land that was formerly dependent on river channels. Of these about 4,200 acres were dependent on the old Vadagarai channel and 7,500 acres on 10 smaller channels that existed between the Chittanai dam and the Madura bridge on the north bank. By two independent methods of calculation it can be shown that the various channels supplying these 11,000 acres used to draw from the river at every fresh about 1,750 cubic feet per second (called cusees) of water. It was shown that the 10 smaller channels had an aggregate drawing capacity of about 1,000 cusees and the old Vadagarai channel one of about 750 cusees assuming it to be 40 feet wide and capable of carrying water to a depth of 4.9 inches. Another calculation shows that 1,800 cusees would be the quantity of water required to cultivate the area given if the water was taken only when freshes occurred, say, for 52 days in the year.
18. Now the evidence of the eighth witness for the defendant shows that the head sluice of the Periyar channel will not pass more than about 3,000 cusees and that the new channel will not carry more than 1,839 cusees because within a mile of its head the channel is supplied with an inlet which returns to the river through an under tunnel the surplus water if the water is more than 6 feet in depth. The Peranai dam registers show that as a fact the actual supply passed down the new channel has never approached even this limit.
19. It was urged that the defendant is not entitled to take at the Peranai dam and through the new channel, water that was formerly taken below the Chittanai, i.e., the water for the 7,500 acres mentioned above.
20. The lands of the contesting plaintiffs are below the points at which the 10 channels formerly took off and it cannot possibly effect them whether the water is now drawn off at the same points as before or at a single point still higher up. It was also urged on behalf of the plaintiffs that the defendant's own registers showed that the water supplied from the Periyar tunnel was much less than was anticipated while the area brought under cultivation under the main channel was larger than expected and, therefore, on his own calculation it must necessarily follow that more water was being appropriated from the natural supply of the river than formerly. The Subordinate Judge has discussed the question at length and the evidence was carefully gone into in this Court. We consider it would be a waste of time to discuss speculations of this character in face of the fact that, explain it how one may, the river at Madura is now far better supplied than in the pre-Periyar days. It will suffice to say that the evidence proves in our opinion that Mr. Pears' measuring of the weir below the tunnel was an unsuccessful experiment and that the discharge of the tunnel was much under-estimated until Mr. Chat-terton made his more accurate experiments. Mr. Chatterton showed that the channel discharge over drop No. 1 was over-estimated for reasons he explained So long as no one outside the department had any interest to question the statistics of the department these errors were of no great consequence and were not detected, as the methods formerly applied though inaccurate gave a sufficient approximation for the purposes of the department. By adopting Mr. Chatterton's figures, by substituting the results of practical experience for the estimates regarding evaporation and absorption, by making due allowance for the fact that a very large percentage of the land now classed under the Periyar Project was formerly irrigated land with a local supply of its own, which has not been cut off, and by adopting a reasonable figure for the duty of water (the text books show how enormously the duty of water varies under different conditions) it is not difficult to show that the existing condition of affairs can be explained without assuming that the defendant has made an unfair demand on the natural supply of the Vaigai to the prejudice of those having rights to water lower down the river. Lastly the assertion that the cultivation season has been set back in the lower reaches of the Vaigai to the prejudice of the land there situate has not been proved. Again in. the absence of any account on the plaintiffs' side we have to rely on those furnished by Government. As the Subordinate Judge points out the accounts do not support the averment. What does appear from the accounts is that in certain villages the cultivation season has changed but with advantage to the cultivators. In the pre-Periyar days there was usually one certain crop (the Kalam crop) and this was sown in September and reaped in January. If the season was good and the supply of water sufficient a second or Kodai crop was raised at considerable risk on some lands from February to May. Now, in consequence of the perennial flow in the river from May or Juno to the following February or March, the Kodai crop is sown not after the Kalam but before. The Kalam, crop consequently cannot be sown till a little later than formerly as it has to wait for the Kodai crop to be harvested. The result in practice is that two good crops are now obtained in place of one good one and one uncertain one. The appellants' pleader said: 'We sometimes suffer for want of water even now, but the lands under the Periyar Project never do.' He overlooked the fact the plaintiffs' lands suffered even more in the past than they do now.
21. We are of opinion that the plaintiffs have failed to show that they have sustained injury. On the contrary it seems to us that the defendant has proved that what he has done has benefited the plaintiffs.
22. This case has raised the broad question- and it is a question of first importance-as to whether Government have power by the customary law of India to regulate, in the public interests, in connection with the collection, retention and distribution of waters of rivers and streams flowing in natural channels and of waters introduced into such rivers by means of works constructed at the public expense and in the public interests for purposes of irrigation, provided that they do not thereby inflict sensible injury on other riparian owners and diminish the supply they have hitherto utilised. The question was formulated as stated above by the Advocate-General in the Court below. (See the judgment of the Subordinate Judge on page 1273 of the printed pleadings.) Our finding of fact upon the evidence is that it has not been established that sensible injury has been inflicted on the plaintiffs, and that the supply of water which they formerly utilised has been diminished by the works which have been carried out by Government.
23. The plaintiffs sue as lower riparian proprietors and on behalf of other lower riparian proprietors alleged to have the same interest as the plaintiffs. Although some of the plaintiffs are the owners of lands which abut upon the right bank of the river, it would seem that the water which they or some of them use for irrigation purposes is outside the area of their riparian tenements since the channels by which the water is diverted to some of the lands are of considerable length. It is a question whether in a case of this sort the plaintiffs can sue in a representative capacity, since the cause of action of each plaintiff is distinct, and, if proof of damage, is necessary, it was necessary for each party, who alleges damage, to prove it. In this connection it may be observed that the lessees of the Siva-ganga Zamindari who came in as plaintiffs in the suit are not parties to this appeal. We assume, however, for the purposes of this judgment that the water has been used by the plaintiffs, or some of them, for the purpose of their riparian tenements and that the order which was made under Section 30 of the Civil Procedure Code, was rightly made. It was contended on behalf of the defendant that Government have a paramount or sovereign right to regulate the distribution of water for purposes of irrigation subject to the limitation mentioned, namely, that they should not injure riparian owners or diminish the supply which they have been accustomed to utilize, It cannot, at this time of day, be contended that it is not one of the duties of Government to maintain and carry out works of irrigation. Sir Subramania Iyer, J., in his judgment in Sankaravadivelu Pillai v. Secretary of State for India in Council 28 M. 72 on page 78 observes that it is among the most important functions of the Government of this country to construct now works of irrigation and to maintain old ones according to means and circumstances.' Irrigation works on an extensive scale wore carried out by the ancient rulers of India. This historical fact, however, affords us small assistance in dealing with the question of law raided in this case. The question we have to consider is the rights of the parties under the law as it stands to-day. There is, one fact, however, which is material and which is beyond the range of controversy, and that is, that the Peranai anicut in the Vaigai river was originally constructed by former rulers for the purpose of diverting the water of the natural stream into the Vadagarai channel. There is also another fact beyond the range of controversy and that is, that Government in discharging the duty which rests upon them in connection with works of irrigation have exercised the right of diverting the waters of natural streams. And in this Presidency, at any rate, we think, we are right in saying, it has never been held that in so doing they had violated the rights of private owners of land, unless the party who alleged himself to be aggrieved was able to prove that the amount of water which he had been accustomed to utilise had been diminished. To go no further afield than the Vaigai river itself, a report made by the District Engineer of Madura to the Collector in January 1859, exhibit Y, shows that the Engineer being of opinion that water was wanted on the south bank instead of being wasted on the north bank took steps to remedy this state of things by having vents of the sluices of the Peranai dam kept open for three days in each week. A further exercise of this right of control is shown by the report of the Engineer to the Collector in October 1861, exhibit Z, and an order of the Collector to the Tahsildar in the same month. It is scarcely necessary to point out that, in exercising this right of control, Government have always claimed and exercised the right to carry water to non-riparian tracts of country. The very object of diverting water by means of dams has been to enable them to do this. It could not, of course, be suggested that, for the purpose of exercising their right of control, Government would be warranted in committing an act of trespass; but no question of this sort arises in the present case.
24. The lights of Government with regard to controlling the water of a natural stream stand upon a different footing from their rights to interfere with the water of artificial channels, in which easement rights have been acquired by third parties. The distinction is pointed out by Innes J. in Ponnusawmi Tevar v. The Collector of Madura (1869) 5 M.H.C.R. 6. In referring to the channel which in that case the plaintiff alleged had been obstructed to his detriment, the learned Judge observed (page 29): 'If this were a natural stream, the right to which the plaintiff lays claim to receive a flow of water unobstructed would be natural right and not an easement.' The judgment of both the learned Judges in that case proceeded on the view that the evidence established that the plaintiff had acquired rights by way of easement against the Government. It is further to be observed that in Ponnusawmi TevarThe Collector of Madura (1869) 5 M.H.C.R. 6, the result of the diversion had been to cause damage to the plaintiff. Mr. Rangachariar on behalf of the appellants relied on a passage in the judgment of Sir Colley Scotland, C.J., in the case to which we have just referred on page 19. ' The arbitrary power claimed for the Government in the 9th paragraph of the first defendant's written statement has been rightly held by the Civil Judge not to be maintainable. However lawful the exercise of such a power may be in regulating the distribution of water amongst ryotwary villages held immediately of the Government or to the lands of proprietors or their tenants, whose enjoyment of it is simply permissive, there can be no doubt that the right to an easement in the flow of water through an artificial watercourse is as valid against the Government as it is against a private owner of land.' It seems to us that all that the learned Judge here laid down was that easement rights may be acquired against Government in the waters of an artificial stream. In the same case in dealing with natural channels, Innes, J., observed on page 29: 'I quite admit that the Government of this country has at all times assumed to itself and has the right in the interests of the public to regulate the distribution for use of any portion of the water flowing in the natural channels in which rights have not as yet been acquired, and to this extent the claim of the first defendant on behalf of the Government in the 9th paragraph of his written statement cannot be gainsaid.'
25. We do not find anything in the judgments in the case in Ponnusawmi Tevar v. The Collector of Madura (1869) 5 M.H.C.R. 6 in conflict with the proposition advanced by the Advocate-General that, in this country, a riparian owner has no higher rights as against the Government in regard to works of irrigation carried out by the Government in connection with a natural stream than that of not being damaged by any diminution in the supply of water which he has been accustomed to utilise.
26. In Kristna Ayyan v. Vencatacliella Mudali (1871) 7 M.H.C.R. 60 the question that arose was with reference to rights in artificial streams. There it was held that the rights of the plaintiffs were limited to the beneficial enjoyment of the water for the irrigation and other necessary purposes of their tenancies as heretofore enjoyed and an injunction was refused on the ground that no right of the plaintiffs had been invaded, no damage had accrued and no case of prospective damage had been made out. We find in the judgment of the Privy Council in Madras Railway Company v. Zemindar of Carvetinagaram 1 14 B.L.R. 209 an authority for these two propositions: 1. Maintenance of works of irrigation is a duty cast upon Government. 2. Bights and liabilities of Government in connection with irrigation works are not governed by the same principles as those which regulate the rights and liabilities of private individuals. In this case the rights and liabilities of Government had devolved upon the defendant. Sir Robert Collier observed on page 385: 'The rights and liabilities of the defendant appear to their Lordships much more analogous to those of persons or corporations on whom statutory powers have been conferred and statutory duties imposed.' See also the judgment in Ambalavana Pandara Sannathi v. Secretory of State for India in Council 28 M.k 539. The principle that the Government in connection with the upkeep and extension of irrigation works are in a position analogous to that of persons and corporations acting under statutory powers was developed by Sir Subramania Aiyar, J., in a passage in his judgment in Sankaravadi-velu Pillai v. Secretary of State for India in Council 28 M.k 72 in which in dealing with the question of the position of Government as analogous to that of persons acting tinder statutory powers the learned Judge observed (page 79): 'The task of arriving at a conclusion as to the permissive or imperative character of an authority in a given case being by no means free from difficulty even where it depends solely on the words of a statute, that must obviously be the more so where the conclusion has to be arrived at with reference to unrecorded custom and practice very rarely brought up for discussion and decision before Courts and with reference to which only the rights and obligations of the State in this country in regard to public irrigation have to be postulated. Having regard to all the considerations bearing on the question, the only correct conclusion would seem to be that so far as the construction of new works is concerned the authority is but permissive, while as regards the maintenance of works once completed so as not to interfere with the existing rights of other persons, the authority of the Government is imperative.'
27. In Sankaravadivelu Pillai v. Secretary of State for India in Council 28 M. 72 the plaintiffs sustained material damage and this, in our view, was sufficient to give them a cause of action. This being so, it is not necessary for us to consider whether the distinction which the learned Judge drew between 'permissive' and 'imperative' authority is well-founded or whether the analogy to statutory powers should be developed as the learned Judge developed it.
28. The plaintiffs' contention that any interference by Government with the waters of a natural stream in the course of carrying out irrigation works, even though it does not affect the amount of water which riparian owners have been accustomed to utilise, is an invasion of certain natural rights in them does not seem to be sustainable under the law of this country. The case of Aiyavu Mooppan v. Sawminatha Kavundan 28 M.l 236 where the question arose between private riparian owners is not in conflict with the proposition put forward by the Advocate-General. The same observation applies to the case of Rama Odayan v. Subramania Aiyar 31 M.k 171. Further in the case last cited it is obvious that the total blocking up of the channel must necessarily have caused damage to the plaintiff. The decision in the case of The First Assistant Collector of Nasik v. Shamji Dasrath Patil 7 B.k 209. was based on the special ground that there was evidence in that case to raise the presumption of an original animus dedicandi in favour of the plaintiffs' village. But it was not disputed in that case that the amount of water coming to the plaintiffs' village had been diminished. The learned Judges without expressing any opinion assumed for the sake of argument that the Government have the right to regulate in the interest of the public the enjoyment and benefit of water. This case is certainly not an authority for the contention that the interference by Government without causing damage gives a right of action.
29. The rights of Government as distinguished from the rights of private individuals are recognised by the Legislature in Section 2 (a) of the Indian Easements Act, 1882, which provides: 'Nothing herein contained shall be deemed to affect any law not hereby expressly repealed; or to derogate from (a) any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation.'
30. A further argument urged on behalf of the appellants was that when the Ramnad and Sivaganga Estates were permanently settled, the proprietary rights in streams were granted to them by Government subject to certain easement rights in the parties who had been previously supplied with water from the old Vadagarai channel, and that it was one of the incidents of the grants that there should be no interference with the waters of the Vaigai. It seems to us that the grant was subject to the paramount rights of Government to control the water of the stream for the purpose of irrigation subject to the limitation mentioned. It was also contended that the rights of Government to control the irrigation furnished by the waters of a natural stream, subject to the limitation that they invaded no acquired rights and did no damage to individuals, depended on their ownership of the bed of the stream. We are prepared to hold that the paramount right of Government under the law of this Presidency is independent of the ownership of the bed of the stream. We also think that no distinction can be drawn between cases where the interest said to be affected is that of ryotwary tenants and where the interest which is said to be affected is that of holders of proprietary estates. We also think that where the plaintiffs allege that their rights have been infringed by reason of irrigation works carried out by Government the onus is on the plaintiffs to show that they have sustained damage. Even assuming that the onus is on the defendant to show that the plaintiffs have not been damaged we are of opinion that the evidence adduced by the defendant is sufficient to discharge the onus. We are of opinion that the proposition of law, as formulated by the Advocate-General in the Court below is well-founded.
31. In the view we take as to the rights of Government, it is unnecessary for us to consider the rights of the plaintiffs and the obligation of the defendant, treating the case as though it had been an action brought by a lower riparian owner against a private upper riparian owner. The case, however, was elaborately argued from this point of view and it seems desirable to state the conclusions at which we have arrived. There are difficulties in the way of regarding either the plaintiffs on the one hand as entitled to certain rights as against upper riparian owners, or the defendant on the other hand as entitled to certain rights as against lower riparian owners, since the defendant has admittedly used the waters of the Vadagari channel for the benefit of non-riparian tenements and the plaintiffs have likewise, as it seems to us, used the waters of the stream for the benefit of non-riparian owners.
32. The plaintiffs allege (see paragraph 8 of their plaint), that their natural and easement rights have been infringed. Appended to Section 7 of the Indian Easements Act or illustrations of the rights of which easements are restrictions. Illustration (h) refers to the rights of a lower riparian owner as against an upper riparian owner in these terms: 'The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel, shall be allowed by other persons to now within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons, to remain within such owner's limits without material alteration in quantity or temperature.' We think here 'interruption' means such interruption as results in material alteration in quantity. This is borne out by the wording of illustration (j), which refers to the rights of an upper riparian owner against a lower. The illustration is in these terms: 'The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners.' In our view the evidence shows that the plaintiffs' easement rights (if any) have not been infringed.' If the plaintiffs' natural rights are wider than any rights which they have acquired by way of easement or could acquire by prescription, these rights are, in our opinion, subject to the paramount right of Government which would otherwise be altogether nullified.
33. Viewing the case as between a lower, and an upper, riparian owner, the Advocate-General's proposition was that where the water had been diverted by the upper riparian owner for riparian purpose, the lower riparian owner had no cause of action unless he could prove damage and he contended that this was the law of England and also the law of this country. He conceded that under the law of England, where the water had been diverted by the upper riparian owner for non-riparian purposes, it was not necessary for the lower riparian owner to prove damage in order to establish a cause of action.
34. In Kensit v. Great Eastern Railway Co. (1883) L.R. 23 Ch. D. 566 Baron Pollock with reference to a passage in Kent's commentaries which he cites at length observes (page 571): 'That seems to me to be perfectly clear, and to be quite sufficient to express what are the rights of the parties in the present case. Taking that judgment of the Court in Wood v. Wand 3 Ex. 748 and again in Emrbey v. Owen 6 Ex. 358; I find that doctrine very clearly established, and I certainly find no countenance in any of the judgments by any of the learned Judges in those cases for the proposition, that an action will lie by a riparian proprietor if there has been no diminution in quantity or purity of the water.' This case was affirmed on appeal in Kensit v. Great Eastern Railway Co. (1834) L.R. 27 Ch. D. 122. The principle that there must be actual damage was recognised in Baily & Co. v. Clark; Son and Morland (1902) 1 Ch. 649. 71 where the Court of Appeal, reversing the decision of Byrne, J., being satisfied that the abstraction of water by the upper riparian owners had not been such as to cause sensible injury to the lower riparian owner, held that the defendants ought not to be restrained from abstracting water. The judgment of the House of Lords in John White & Sons v. J. & M. White (1906) A.C. 72 does not conflict with the principles of the decision in the case last mentioned. In Debi Pershad Singh v. Joynath Singh 24 C. 865 a case decided by the Privy Council, the right claimed by the upper riparian owner was to dam up as much of the stream as he pleased and it is difficult to see how the exercise of such an alleged right could fail to cause damage to the lower riparian owners. We do not find anything in the judgments of the House of Lords in Swindon Waterworks Co. v. Wilts and Berks Canal Navigation Co. L.R. 7 H.L. 697. which is in conflict with the proposition advanced by the Advocate-General. The Lord Chancellor said on page 707: 'There was, therefore, upon the filing of the bill, as it appears to me, a case clearly established, that the supply of water for the canal, arising out of the stream, was deficient and was made deficient by, or at all events partly by, the acts of the present appellants 'Lord Selborne said (page 714): 'It is plain, upon the evidence, that this diversion of the water had (as it necessarily must have had) the effect of sensibly diminishing the supply of water necessary for the navigation at the very time when it was most wanted.' In McCartney v. Londonderry and Lough Swilly Railway (1904) A.C. 301 : 73 L.J.P.C. 73 Lord Lindley says on page 314 that in the Swindon Waterworks case L.R. 7 H.L. 697 the lower riparian owners were not in fact damaged by the defendants' operations; but this does not appear to have been the view of the learned Judges who decided the earlier case. In Mc Cartney v. Londonderry and Lough Swilly Railway (1904) A.C. 301 : 73 L.J.P.C. 73 where no substantial injury was shown, the upper riparian owner had made use of the water for purposes unconnected with his riparian tenement. Again in Roberts v. Gwyrfai District Council (1899) 2 Ch. 608 the diversion by the upper riparian owner was for a purpose unconnected with his riparian tenement. Moreover in the case the effect of the interference had been to give the plaintiff more water at one season and less at another-a state of things which might well result in damage to the plaintiff. As regards BicKett v. Morris L.R. 1 D.A.C. 47 the actual decision in that case was that as between the owners of the opposite banks of a river, neither owner was entitled to use the river bed in such a manner as to interfere with the natural right of the stream. In commenting upon Bickett v. Morris L.R. 1 D.A.C. 47 Cotton, L.J. in his judgment in Kensit v. Great Eastern Railway Co. (1834) L.R. 27 observes: 'Then it is said that Bickett v. Morris L.R. 1 D.A.C. 47 establishes this proposition, that when there is any interference with the bed of the river, this, although not causing any injury to an opposite owner or to the lower riparian owners, is ground of action. That, I think, was not the real meaning of Bickett v. Morris L.R. 1 D.A.C. 47. Lord Westbury disposed of that proposition by suggesting that if that were so the building of a boat-house on a stream would give a right of action to all lower riparian owners. What was decided was that what interferes with the channel of the river was a matter which would be actionable unless the Court were satisfied that there would not be any injury resulting from it either, then or at future time : and in such a case as the flow of water, which is so difficult to deal with, it would be a difficult case to determine whether what had been done would or would not produce any injury. If there was a reasonable prospect that it would produce any damage to the opposite or lower riparian owners, then that would give a right of action, although no actual injury was shown to have resulted from it.' With regard to the contention that the plaintiffs assuming them to have not been actually damaged are entitled to prevent the acquisition of prescriptive rights against them [see the observations of Lindley, J. in McCartney v. Londonderry and Lough Swilly Railway (1904) A.C. 301 it seems to us that any prescriptive right which the defendant might acquire would be a right to divert so as to damage the plaintiffs and this right would only begin to accrue when damage began to be done.
35. The English authorities, therefore, would seem to establish the proposition advanced by the Advocate General and to show that proof of damage is necessary where the use by the upper riparian owner is a use for the purpose of his riparian tenement, but not necessary where the use is for a purpose unconnected with his riparian tenement. If the English law is applicable and if the defendant in this case has no higher rights than those of an upper riparian owner, inasmuch as the defendant has used the diverted water for purposes unconnected with his riparian tenement, proof of actual damage would not, in our opinion, be necessary in order to give the plaintiffs a right of action. But, as we have pointed out, the rights of Government in this case, in our opinion, are higher than; those of a private upper riparian owner.
36. In America where the physical conditions approximate much more closely to the conditions which obtain in this country than to English conditions the doctrine of 'appropriation' by an upper riparian owner, which is unknown to the English law, has been recognised to a considerable extent (see Kinney on Irrigation-Appropriation of waters). Further the law of America would appear to differ from the law of England with reference to the question of proof of damage where water has been diverted for a non-riparian purpose. In Farnham on Waters, page 1648, it is stated that give the lower owner a ground of complaint, the quantity taken to the non-riparian land must be sufficient to inflict a perceptible injury on. him.'
37. The question whether the American doctrine is applicable in this country was elaborately discussed by Mookerjee, J., in Belbhadar Pershad Singh v. Sheikh Barkat Ali 11 C.W.N. 85. The American authorities were fully considered by the learned Judge and the effect of his decision would seem to be that in Bengal the doctrine of appropriation cannot be accepted as part of the law. The learned Judge held that the use of the water for purposes of irrigation was artificial or extraordinary even when it was found that the country was dry, rooky and parched and that it was absolutely necessary that the lands which were paddy lands, should be irrigated from the watercourse in order to produce paddy and that a mandatory injunction should be granted to compel the restoration of the watercourse to its natural form. It has to be observed, however, that in that case the upper riparian proprietor had erected a bank across the watercourse, the effect of which was to cut off completely the supply of water to proprietors lower down. The ground on which Mookerjee, J., based his conclusion was 'that the total consumption for irrigation by one riparian owner of the water of the stream, so that other proprietors are entirely deprived of the use of the water, must be regarded as an unreasonable use' (see page 99). Rampini, J., after referring to a passage in Angell on Watercourses, Section 121, in which it is pointed out that according to the Supreme Court of Illinois in and climates water for irrigation is referred to the class of natural wants' observes :'Whatever may be the law or the future developments of the law in other countries than this, I can only say that no such rule has yet been laid down in this country.'
38. Although this question is one of great interest and importance, we do not feel called upon in this case to express any opinion with regard to it.
39. The question whether an upper riparian owner is entitled to divert water, provided the amount diverted does not exceed the amount which ho has himself by artificial means put into the stream, does not appear to have received much discussion in England.
40. In Kinney on Irrigation, page 253, the law of America is thus stated: 'Where water from an artificial ditch is turned into a natural watercourse and mingled with the natural waters of a stream, whether the same is the stream from which it was originally taken or not, for the purpose of conducing it to another point lower down, to be there used by the original appropriator, it is not thereby abandoned, but may be taken out and used by the parties thus conducting it, provided that they do not in so doing diminish the quantity of the natural waters of the stream by taking out more than their share, to the injury of those who have previously appropriated such natural waters,'
41. We are of opinion that the defendant as a riparian owner was entitled to divert so much of the water as he put into the stream before it reached the lower proprietor, if in so doing he did not injure a lower riparian owner.
42. As we find the plaintiffs did not sustain damage by reason of the works carried out by Government in the exercise of their rights of control over works of irrigation, we hold that the suit was rightly dismissed by the Subordinate Judge and we dismiss this appeal with costs.