1. This is an appeal preferred by the plaintiff who is the landholder of the village of Nedungal in the Salem district against the decree of the District judge of Salem in so far as it refused to the plaintiff landholder certain reliefs. The defendants are the ryots holding certain lands in this village which are classified as dry. There is a channel marked A-B-C in the-plaint sketch which is a feeder channel to the Nedungal tank and it branches from the river South Pennar. Both the tank and the channel are sources of irrigation to the ayacut nanja lands, i.e., the wet lands in the village. The defendants who are the owners of certain dry lands in the village claim to take water from the channel by means of certain baling stands shown in the plaint sketch. They are also mentioned as 1 to 5 in the Commissioner's sketch. The plaintiff as the proprietor of the village claimed a right to regulate the supply of water from the village tank and the supply channel which are both sources of irrigation for the wet ayacut of the village. He wanted an injunction preventing the defendants from using the water of the channel for their dry lands. The plea put forward by the defendants which has found acceptance with the lower Courts is that the defendants are entitled to have their dry lands irrigated with the water of the said channel by means of baling stands as the baling stands were ancient ones and not new ones. The defendants say that they have been baling water by using the said baling stands without any obstruction or hindrance from the proprietor and that they were taking water not only for their dry lands mentioned in the plaint but also for all their other dry lands situated in the locality.
2. The question is whether the owners of dry lands in a village are entitled to claim a right of taking water from a tank or a channel which is the admitted source of irrigation for the wet fields in the village. The very classification of lands as 'dry' and 'wet' shows that the dry lands are not ordinarily at any rate entitled to claim the water from the village tank or from the supply channel or from any other source in the village for their dry lands. These sources of supply--whether it be the tank or the channel--are intended primarily, at any rate, to supply the needs of the wet ayacutdars and as it is well known the wet ayacut under each tank or channel was fixed with reference to the capacity of the tank or the channel to supply enough water for a particular area. That being the way in which the irrigable area was fixed, it goes without saying that even the proprietor who owns these sources as the owner of the entire village, is not entitled to divert the water from these sources of supply to the detriment of the wet ayacutdars or to allow any other person the use of that water for his dry lands. Of course, if after supplying the needs of the wet ayacutdars with respect to the irrigable area there is surplus water, the proprietor may instead of allowing the water to go waste, allow that excess water being used by the owner of a dry field. But beyond this, the proprietor himself has no right. The term 'punja tharam nanja' which is very commonly employed in Salem, North Arcot and Chittoor Districts means no more than a land to which water may be allowed by the proprietor in the circumstances mentioned above, i.e., if the wet ayacutdars have had enough for their needs in respect of their irrigable area. Even if the owners of the dry lands had been taking the tank or channel water for several years continuously for the dry lands and the proprietor did not object to it, it must be taken that there was enough surplus water in those years and the owners of those dry fields cannot claim that they acquired a right by prescription against the proprietor himself or against the wet ayacutdars. Such user is not as of right and even by long user it cannot be damed by the owners of the dry fields either as against the proprietor or against the inamdar. Punja tharam nanja or punja mel nanja are no more than mere dry fields liable to pay ordinarily a dry assessment and are liable to pay an additional amount in the event of the dry field being cultivated with a wet crop, there being surplus water not needed by the wet ayacutdars. I cannot accept the contention that the owners of these dry fields can insist upon being allowed to take water to their dry fields as of right and against the wishes of the proprietor. At any rate, when the drawing of the water by the owners of the dry fields is likely to injure the wet ayacutdars, it goes without saying that there can be no such right recognised in the owners of the dry fields. In the particular case before me there is a distinct allegation in the plaint that the act of the defendants in taking water through the baling stands to the dry fields injuriously affected the rights of the wet ayacutdars. This averment is not denied at all in the written statement. All that is said is that these baling stands are not new ones but that they were ancient ones. Even if they were in existence for a long time, it does not mean that the tenants were taking as of right any water through those baling stands year after year to the dry fields, Mr. Champakesa Aiyangar asks me to say that it was not necessary to deny that averment in the plaint that the acts of the defendants in taking water to the dry fields through the baling stands in question affected the rights of the wet ayacutdars. But I cannot agree with him. There is the distinct averment in the plaint that the action of the defendants would and did in fact affect the rights of the wet ayacutdars and it was necessary to deny this averment and that plaint averment not having been denied, we must take it that there was no necessity to prove that allegation. We must take it that the act of the defendants did or would injuriously affect the rights of the wet ayacutdars. If so, there is no possibility of saying that they are entitled to do it as of right and they cannot acquire such a right as against the Zamindar or the proprietor to such user even if they had been taking water through the baling stands continuously for a number of years with or without the express permission of the landholder. We must take it that in the years in which water was taken to the dry fields there was or every one thought that there would be more water than what was needed for the wet ayacut and in such a case where water was taken to a dry field, it is a case of implied permission (where there is no express permission) and the user is not 'as of right'.
3. I reverse the decrees of the lower Courts which denied the relief of injunction against the defendants and I pass a decree restraining the defendants from taking water of the suit channel to their dry fields through the baling stands in question or by any other means.
4. If the defendants are the owners of any portions of the wet ayacut of the village, of course, they will, as the wet ayacutdars of an irrigable area, under the tank or channel, be entitled to take water along with the other ayacutdars of this village and this injunction which I grant in this decree will be confined to the dry lands (vis., punja or punja-tharam-nanja or punja-mel-nanja) in their holdings. The plaintiff will have his costs throughout from the defendants.