1. Two portions of the argument addressed to us call for notice.
2. Firstly, the learned Subordinate Judge has dealt with plaintiffs' right to put up the disputed dam as a matter of limitation, relying on Krishna Aiyar v. Secretary of State for India 4 Ind. Cas. 1070 71and other cases to the effect that proof of twelve years' enjoyment will transfer the harden of proof to the defendant. But those are cases of limitation, not of prescription; and the latter is in question here with reference to an easement or customary right. There is no question of a plea of lost grant. The lower Appellate Court, therefore, had to find for sixty years' enjoyment if plaintiffs were to succeed. We must now call on it to submit a finding on the question, whether enjoyment of the alleged right to erect a dam has been established for that period.
3. Next, the District Munsif found that the removal of the dam caused no material diminution in the supply of plaintiffs' lands. This finding was disputed by plaintiffs in first appeal, but was not dealt with in the lower Appellate Court's judgment. We think that Robert Fischer v. Secretary of state for India 2 Ind. Cas. 325 governs the case and that a finding on the point is necessary before the lower Appellate Court's decision in plaintiffs' favour can be sustained. The lower Appellate Court must, therefore, find on the issue whether the removal of the dam caused material diminution in plaintiffs' supply.
4. No fresh evidence is necessary. Findings shall be due in six weeks. Ten days will be allowed for filing objections.
5. In compliance with the order contained in the above judgment, the Temporary-Subordinate Judge of Sivaganga submitted the following
6. I am directed by the High Court to submit findings on the following Issues:
(1) Whether enjoyment for a period of 60 years of the alleged right to erect a dam has been established by the plaintiffs?
(2) Whether the removal of the dam caused material diminution in plaintiffs supply?
2. 1st issue.--On a careful reading of the evidence, so far as it relates to this issue, and after hearing the arguments of both side Vakils, I have come to the conclusion that this issue must be found against the plaintiffs.
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8. 2nd issue.--It cannot be found also that the removal of the dam by the first defendant's subordinate did in any way diminish the supply of water to which plaintiffs were entitled. * * * *
7. This second appeal coming on for final hearing yesterday and this day after the return of the finding of the lower Appellate Court on the issues referred by this Court for trial, the Court delivered the following