Judgment :- 1. This is an appeal filed by the defendant from a decree in a suit instituted by the plaintiffs for an injunction to restrain the defendant from interfering with the plaintiffs' right to impound water from a stream described in plaint'B' schedule, by means of a dam put up by them, and to take the same through the artificial channel alleged to be in their possession to their lands described in the plaint 'A' schedule. 2. The allegations in the plaint were as follows: The plaint A schedule property belongs to the plaintiffs and they are in possession of it. There is a natural stream, described in the plaint B schedule, which takes its source from the hills on the south and flows along the east and then along the northern boundary of the A schedule property. About 11/2 furlongs from A schedule property plaintiffs' predecessors-in-interest had, about 50 years ago, put up an earthern dam across the stream to impound water. Their predecessors-in-interest were taking the water of the stream so impounded at the dam through an artificial chal dug in the properties lying to the south and east of the plaint 'A' schedule property to that property from time immemorial and as of right. The properties through which the chal runs were originally in the possession of the Kovilagam, the owner of these properties, and now they are in the possession of the defendant, and the chal was constructed when the properties were in the possession of the Kovilagam. The defendant who came into possession recently of those properties is attempting to improve those lands and for that purpose is making efforts to put up a bund across the stream higher up the dam to tap the water of the stream for the use of his lands. According to the plaintiffs this is an interference with their legal right and therefore, they have filed the suit. 3. According to the plaintiffs this is an interference with their legal right and therefore, they have filed the suit. 3. The contention of the defendant was that the stream belonged to him> that it was for the safety and security of the land in his possession that the dam mentioned in the plaint was constructed, that the chal runs through the properties in his possession, that the plaintiffs are taking water under the permission granted to them without prejudice to his right to take the water to his own lands, that he being in possession of the lands abutting the stream has the rights of a riparian owner and has the natural right to take water from the stream, that A schedule property lies away from the stream, that the dam mentioned in the plaint does not impound the water of the stream but is only a construction for the security of his lands, that with the water flowing from the stream through the chal he is only making bonafide attempts to cultivate his lands, and that the plaintiffs have no right to take the water through the chal to their property. 4. The trial court found that plaintiffs have the right to take the water from the natural stream to the plaint A schedule property and granted a decree. The defendant appealed from that decree. The appellate court dismissed the appeal. 5. In this second appeal, counsel for the appellant contended that the plaintiffs can acquire a right to take water from the natural stream only by establishing a grant from the Kovilagam, the admitted owner of the stream, and that since no grant has been pleaded, the lower appellate court was wrong in decreeing the suit on the basis of a lost grant in favour of the plaintiffs' predecessors-in-interest from the Kovilagam. That the plaintiffs and their predecessors have been taking the water from the stream through the chal for the past several years cannot be disputed in view of the evidence of pws.1 to 3. It is true that the plaintiffs not being riparian owners are not entitled to appropriate the water from the place where the dam has been constructed. It is settled law that it is not open to a tenant to prescribe for an easement as against his landlord. It is true that the plaintiffs not being riparian owners are not entitled to appropriate the water from the place where the dam has been constructed. It is settled law that it is not open to a tenant to prescribe for an easement as against his landlord. It is doubtful whether a tenant can prescribe for an easement as against another tenant under the same landlord. 6. There is no plea in the plaint of an express or implied grant by the Kovilagam to the predecessors-in¬interest of the plaintiffs or to the plaintiffs to take water from the stream. But if it is clear on a reading of the plaint that the allegations there, are sufficient to lead to an inference of a grant, then the court will be justified in presuming a lost grant if the allegations are made out by evidence. The allegations when read as a whole would amount to this; that the predecessors-in-interest of the plaintiffs and the plaintiffs were taking water from the stream through the chal to A schedule property, and that they have been doing it openly and peacefully for the last 50 years. 7. In Satyanarayana v. Venkatappayya AIR. 1953 SC. 195 it was laid down that a presumption of an origin in a lawful title may in proper cases be made to support a right quietly enjoyed for a long period, where no actual proof of the title is forthcoming even though there is no sufficient evidence or proof of the nature of the grant or the person to whom it was made. In Manohar Das v. Cham Chandra AIR. 1955 SC. 228 the Supreme Court pointed out the permissibility of ascribing a legal origin to possession and enjoyment of a property for a considerable period of time without challenge, in a case where on the facts a title by prescription could not be sustained. 8. As to when a 'lost grant' can be presumed, Cheshire in his 'The Modern Law of Real Property,' 8th Edn., page 475 says: "The 'lost modern grant', represents the second stage in the history of acquisition by presumed grant. 8. As to when a 'lost grant' can be presumed, Cheshire in his 'The Modern Law of Real Property,' 8th Edn., page 475 says: "The 'lost modern grant', represents the second stage in the history of acquisition by presumed grant. If easements which were fortified by long enjoyment, but for the grant of which no deed could be produced, were to receive the protection they deserved, it was soon seen that something must be done to turn the flank of the rule that a prescriptive claim at common law failed if it was shown that the easement must have come into existence at some time later than 1189. Stimulated by a determination to support ancient user at all costs, judicial astuteness in course of time evolved the very questionable theory of the lost modern grant. After actual enjoyment of an easement has been shown for a reasonable length of time, the court presumes that an actual grant was made at the tins when enjoyment began, but that the deed has been lost. The justification for this attitude is that if a claimant, despite his inability to prove enjoyment back to 1189 or to produce a deed of grant, has clearly exercised the easement for (say) the last 60 years, it is extremely probable that at some time an actual grant was mad; to the claimant or his predecessor, and that it was subsequently lost. Therefore since long enjoyment must be upheld, the only course open to the court is to leave it to the jury to presume that the grant was in fact made" Cockburn, C. J. in Bryant v. Food 1867-2Q. B. 161 said: "Juries were first told that from user during living memory or even during twenty years, they might presume a lost grant or deed, next they were recommended to make such presumption; and lastly, as the final consummation of judicial legislation, it was held that a jury should be told not only that they might but also that they were bound to presume the existence of such a lost grant, although neither judge nor jury nor anyone else had the shadow of a belief that any such instrument had ever really existed." So, the fiction of lost grant rested and still rests upon the basis of long user, and though in theory the user is merely presumptive evidence, in practice and effect it is decisive. At the present day it is the last expedient of a claimant who finds himself unable to rely upon prescription at common law or upon the provisions of the Limitation Act. The same kind of user must be shown as in the case of prescription at common law, so that if is vi clam or precario the doctrine will not be invoked by the court. Again, in accordance with general principles, it must be clear that there was some person or body of persons to whom the grant might have been made; that there was a fee-simple owner capable of executing the grant; and that the right claimed was one which might have been the subject-matter of a grant. Although there has been a difference of judicial view on the point, the better opinion seems to be that the presumption of a lost modern grant cannot be rebutted by evidence that no such grant was in fact made. The doctrine is plainly a fiction; it is a means to an end, and the end is that some technical ground may be found for upholding a right which has been openly enjoyed. (See Cheshire on'The Modern Law of Real Property' P. 476.) Tested in the light of these-principles, it is clear that the predecessors-in-interest of the plaintiffs and the plaintiffs have been enjoying the right to take water from the stream through the chal along the B schedule properties to A schedule property, and therefore, it may be presumed that the Kovilagam made the grant. 9. It was urged on behalf of the appellant that he being in the position of a riparian owner is entitled to take water from the stream by virtue of his natural right and that the plaintiffs cannot obstruct him from taking water by a claim under a lost grant. The grant in favour of the plaintiffs' predecessors-in-interest must be presumed to have been made when the Kovilakam was in possession of all the neighbouring properties. The defendant came into possession of the properties only recently, long after the presumed grant in favour of the plaintiffs' predecessors. So, his right to take water from the stream as riparian owner is subject to the grant made by the Kovilagam to the plaintiffs' predece-ssors-in-interest. The defendant came into possession of the properties only recently, long after the presumed grant in favour of the plaintiffs' predecessors. So, his right to take water from the stream as riparian owner is subject to the grant made by the Kovilagam to the plaintiffs' predece-ssors-in-interest. Lord Ellenborough said in Bealey v. Shafi 102 E.R. 1266: "For the general rule of law as applied to this subject is, that, independent of any particular enjoyment used to be had by another every man has a right to have advantage of a flow of water in his own land without diminution and alteration. But an adverse right might exist founded upon the occupation of another. And though the stream be either diminished in quantity or even corrupted in quality, as by means of exercise of certain trades, yet, if the occupation of the party so taking or using it has existed for so long a time as may raise the presumption of a grant, the other party whose land is below must take the stream subject to such adverse rights." 10. So, the right of the defendant to take water as riparian owner is subject to the right which the plaintiffs acquired under the Most grant'. I think, the view of the lower appellate court that the plaintiffs have obtained the right to take water from the stream under a lost grant must be upheld, and I do so. The appeal fails, and it is dismissed, but in the circumstances, I make no order as to costs.