1. The Subordinate Judge has found that the plaintiffs dug the channel in the bed of the Palar river, that with the permission of the Government they have been taking water to the Pundi tank along a channel which mostly run through Government poramboke lands and which during the remainder of its course passed through channel poramboke lands. He has also founded that up to 1862, the plaintiffs took both spring and fresh water to their tank through this channel but that after 1862 and till 1892, they have not been shown to have removed the silt so as to enable spring water to pass through it. The defendants' case is that the Government made a grant of the right to take water through this channel to their fields as the plaintiffs did not require it any longer. The Subordinate Judge has found against this case. Apart from the fact that Exhibits III and IV purport to be grants to certain individuals only of the right in question, there is Exhibit G which shows that these grants were not acted upon, even assuming that it was open to a Head Assistant Collector to make such grants.
2. In this Court Mr. Raja Aiyar based his contention upon the ground that his clients acquired a prescriptive right against the plaintiffs by taking the spring water thorn-selves through the channel to the exclusion of the plaintiffs. There has been no issue regarding this prescriptive right and we are at present unable to see how such a right could have been acquired. We have not been placed in possession of materials for arriving at a conclusion upon this point.
3. The next contention of the respondents' Vakil is that as his clients are in possession, the non-user by the plaintiffs disentitles them to ask for an injunction. We fail to see any; force in this contention. The fact that the grant by. the Government has not been availed of may enable the Government to revoke it, but so long as the grant subsists and the Government raises no objection to the intermittent use of the channel, we fail to see how the defendants who have no right either by grant or by prescription, can deny the right of the plaintiffs. The decisions in Achanna v. Venkamma 5 M.L.J. 24 and Kondapa Rajan Naidu v. Dwarakonda Suryanarayana 6 Ind. Cas. 266: (1910) M.W.N. 117 establish the proposition that as against a trespasser, a person having had enjoyment of an easement for less than the statutory period can obtain an injunction. In the present case, the position of the plaintiffs is very much stronger in that they have been continuously using the channel at least for taking flood water to their tank.
4. We are not able to follow the Subordinate Judge in regard to his classification of the easement claimed. We may observe that no question of easement really arises; but even granting that the right claimed is of that description, the right to take the spring water along the channel is not separable from the right to dig and take water from the bed of the river.
5. On the mateials before us we are unable to find any right in the defendants to interfere with the plaintiffs' use of the water.
6. We must, therefore, reverse the decrees of the Courts below and grant a decree to the plaintiffs restraining the defendants from in any way interfering with the plaintiffs in their enjoyment of the channel and of the water flowing in it. In the absence of the Government, we are not in a position to make a declaration regarding the right of the plaintiffs to the channel in question.
7. The defendants must pay the costs of the plaintiffs in all the Courts.