1. The 'channel of water' referred to in the plaint has been found by both the lower Courts to be a natural stream as defined in the explanation to illustration (j) to Section 7 of the Indian Easements Act. This finding is not shown to be erroneous for any reason of which we can take cognisance in second appeal and we accept it.
2. It has also been found that the defendant does not take water 'for any tenement other than that which abuts on the suit channel, that there was no sensible diminution in the supply of water to the plaintiff's tank and that no loss was sustained by reason of the act of defendants.'
3. The Subordinate Judge, however held that the plaintiff had a cause of action as he apprehended that the use by the 1st defendant of the water of the channel for all the lands'-whether or not abutting on the channel-' would ripen into a right.'
4. On this ground the lower Appellate Court granted a declaration to the plaintiff that he was entitled to the water of the channel subject to the right of 1st defendant to put the dam B at A (1) and take water for the irrigation of the tenement abutting on the channel. In doing so it was argued before us that the learned Subordinate Judge must have proceeded under Section 35 of the Easements Act.
5. The plaintiff claims before us that the lower Appellate Court ought to have held, that diversion of more water than that which the 1st defendant was accustomed to divert before he leased the lands of the 2nd and 3rd defendants is actionable though no special damage was proved.' The 1st defendant on the other hand contends that on the facts found the suit should have been dismissed and that the plaintiff was not entitled to any such declaration as has been made by the lower Appellate Court.
6. On the facts found the rights of the parties must be governed by Section 7 of the Indian Easements Act. Clause (b) lays down the general 'right' of every owner of immoveable property 'to enjoy without disturbance by another the natural advantages arising from its situation'. One of the natural advantages is that referred to in illustration (j) which safeguards the right of every owner of land abutting on a natural stream to use and consume the water for irrigating such land, 'provided that he does not thereby cause natural injury to other like owners.'
7. The plaintiff's case may be put under three heads :
(1) that the 1st defendant is using the water for irrigating land not abutting on the stream :
(2) that the 1st defendant is not entitled to use more water from the stream than he has been found to have been using in the past, and that inasmuch as, prior to his leasing certain lands from the 2nd and 3rd defendants, the 1st defendant was in occupation of only a portion of the lands now occupied by him, the 1st defendant must be restained from using water in respect of lands other than those lastly referred to :
(3) that the 1st defendant does not fall within the terms of illustration (j) to Section 7 of the Indian Easements Act which refers to an owner of land whereas the 1st defendant is merely an occupier of it.
8. With reference to the first point, there is a finding against the appellant to which we have already referred. We accept the finding that the water has been used only in respect of the lands abutting on the natural stream.
9. The next point seems to us to proceed on a misconception of the way in which riparian rights have been defined. We have cited the relevant portions of the Indian Easements Act which show that such rights are defined by reference to the fact that no material injury is caused to other like owners. The method by which the plaintiff desires to have the 1st defendant's rights restricted is not open to him. It having been found that (a) the water is used for irrigating lands abutting on the natural stream and (b) that no material diminution is caused to the plaintiff, the second argument on behalf of the plaintiff must fail.
10. In conection with the apprehensions of the plaintiff which the learned Subordinate Judge considered sufficiently well founded to make him grant the declaration objected to by the 1st defendant, the following remarks of Baron Parke are pertinent-'This must depend upon the circumstances of each case. On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil, abutting on one part of the stream, could be permitted to irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose : on the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering pot into the stream in order to water his garden, or allow his family or his cattle to drink it.' Embrey v. Owen (1851) 6 Ex. 353 : 20 L.J. Ex. 212 : 15 Jur. 633 : 17 L.T. 79 : 86 R.R. 331.
11. The test adopted by the legislature, however, does not necessitate the determination with any great precision of how the water is utilized by the owner of land abutting on the natural stream. For the test is rather whether the owner uses more than a reasonable quantity, and for this purpose the user is not as a rule to be deemed unreasonable unless there is material diminution of water so as to affect the rights of other like owners.
12. Neither can the third head of argument on behalf of the plaintiff avail him. It is for him to make out a case for a decree in the terms in which he seeks it. The scheme of Section 7 of the Indian Easements Act precludes him from claiming as owner of lands abutting on the stream any rights extending beyond those that are given to him under illustration (j). The plaintiff could have come to the Court had the right safeguarded to him in the illustration, been disturbed. Is there, then, a disturbance of the right of the plaintiff by the 1st defendant on the ground that the 1st defendant is not entitled to take any portion of the water from the natural stream on which his land abuts The first defendant is an occupier of zemindari lands. It is true that the zemindar is often spoken of as the landowner and the occupier as the tenant. The rights of the occupier are however, of such a kind that, when the question is whether the occupier of the land or the zemindar is to be considered the owner within the terms of Section 7, illustration (j) of the Indian Easements Act, we feel that, in the circumstances of this case, the tenant may well be considered to be the owner of the land occupied by him and' not the zemindar.
13. For these reasons the Second Appeal No. 1326 of 1912 will be dismissed with costs and in Second Appeal No. 1537 of 1912 we will restore the order of the District Munsif dismissing the plaintiff's suit. The appellant will have his costs in Second Appeal No. 1537 of 1912.