Judgment :- 1. The appellants in this second appeal are the plaintiffs in a suit for mandatory injunction to direct the defendants to remove the construction made by them across the Nochipully amsom and for a permanent injunction to restrain them from constructing any dam across the said stream at the site or at any other place so as to injuriously affect the plaintiffs' rights in respect of the supply of water from the said stream for the irrigation of their lands. The plaintiffs are the owners of certain paddy lands which lie adjacent to the which at the site flows from east to west. The water from this thodu was being used for irrigation of the paddy fields of the plaintiffs, and it is the case of the plaintiffs that without such facilities for irrigation from the said thodu it is not possible to cultivate paddy in their paddy fields. They claim the right for continued supply of such water from the stream without interruption or obstruction or even any diminution in the volume of supply. The first defendant is cultivating certain lands belonging to the second defendant lying in the left bank of the above stream. The land of the defendants lies at a higher level and the stream flows down from that point to where it touches the plaintiffs' property. According to the plaintiffs, first defendant, in spite of the protest of the plaintiffs, attempted to construct a granite dam across the stream at a spot about 60 yards higher up the stream from the plaintiffs' dam and the effect of such construction would be to impede the free flow of water from the higher reaches of the stream to the portion of the stream lower down adjacent to plaintiffs' property. The plaintiffs have themselves constructed a dam at the point where the stream flows adjacent to their property so as to collect and divert water for the purpose of irrigation of their paddy fields. The action of the first defendant in attempting to put up a granite dam and thereby impede the free flow of water to the lower reaches of the stream is characterised in the plaint as wrongful and illegal and therefore liable to be restrained by an order of injunction. A mandatory injunction is prayed for removal of the obstruction already caused. A mandatory injunction is prayed for removal of the obstruction already caused. The first defendant is the main contesting defendant, the second defendant adopting the contentions of the first defendant. In his statement the first defendant denies the case of the plaintiffs that there was a granite dam in existence for many years adjacent to plaintiffs' property as contended by the plaintiffs and contends that the defendants were not putting up any new construction by way of a dam across the stream as contended, that at that point there was already a dam and what was being done was only to strengthen that dam since temporary dams are liable to be washed away seasonally, that the construction of a dam at the point where the first defendant was constructing was necessary for the purpose of irrigating his own paddy fields, that such diversion was being resorted to in all the previous years and that the plaintiffs have no cause of action against the defendants. After trial the court found that the dam said to belong to the plaintiffs situated across the stream adjoining his paddy fields was in existence for many years, and that the first defendant had made considerable progress in the construction of a granite dam as alleged. The court also found that the plaintiffs were badly in need of water from the stream for successfully raising each crop and that defendants also required the water from the stream for the purpose of irrigation of their properties, that the 1st defendant as a higher riparian owner can resort to any particular method of diversion of water but only without materially diminishing flow of water along the stream and that the dam in question which the first defendant had constructed adversely affected the plaintiffs to a considerable extent. In view of this the trial court gave a decree to the plaintiffs restraining the first defendant and his men from diverting the water from the dam or any other mode of diversion which would injuriously affect the plaintiffs' right to the water in the stream and also issued a mandatory injunction directing the first defendant to remove the construction of the dam, so far as made, across the I may mention here that during the course of the trial a commissioner after visiting the spot filed three reports Exs. C1, C2 and C3. C1, C2 and C3. These indicate the progress of the work of construction of the dam on the relevant dates the commissioner visited the spot. The last report Ex. C3 indicates that at that time the construction of the dam was practically over. The height of the dam at the centre was 4'1" and at the two sides 4'9" and 4'11". He further found that on this masonry construction temporary dam was also put up to collect water and the height of the temporary construction so put up over this masonry dam was 2' 2". Possibly this was necessary because the paddy field of the defendants was at a very much higher level than the stream bed and going by the evidence in this case it would appear that it was about 5 ft. above the level of the stream bed. If so, it would appear that the only way of taking water which was resorted to by the defendants was of raising the dam so high as to get water collected above the level of the properties of the defendants. That apparently is the reason why the dam had to be raised further above the masonry construction which at the middle was already 41" high. 2. The first defendant who was aggrieved by the decision of the trial court granting injunction against him appealed to the Subordinate Judge's court and that court modified the decree of the trial court by directing that the first defendant should be allowed to divert water from the thodu at the dam site constructed by him for three days a week, on Saturdays, Sundays and Mondays, by putting up a temporary dam made of mud, twigs and leaves on the granite construction made by him and that the temporary dam so put up was to be opened up by him and the water allowed to flow out fully and freely on the remaining days of the week. In making this direction the court below was influenced by the fact that the decree passed by the trial court practically placed the first defendant at the mercy of the plaintiffs. The lower appellate court also, no doubt, agreed with the trial court that the dam of the plaintiffs had been in existence at least before the year 1937 and water was being taken from this dam site for the cultivation of the plaintiffs' property. The lower appellate court also, no doubt, agreed with the trial court that the dam of the plaintiffs had been in existence at least before the year 1937 and water was being taken from this dam site for the cultivation of the plaintiffs' property. It was also found that there was no dam at the place where the first defendant had constructed the basement of the new dam. 3. Before me the plaintiffs' counsel has seriously challenged the decree granted by the lower appellate court on the ground that it is quite unworkable. No doubt, such an arrangement as that envisaged by the court in its judgment was in force during the pendency of the case as an interim arrangement. But according to counsel though it may be workable for a limited period of time it cannot certainly be worked as a perpetual arrangement. I see considerable force in this contention and if it is possible I think that the direction as now found in the judgment of the lower appellate court should certainly not be sustained. The decision in the case was not based on the respective rights of parties. 4. In support of the case of the parties, pws.1 to 3 were examined on the side of the plaintiffs and Dws.1 and 2 were examined on the side of the defendants. The only documentary evidence which may have to be referred to are the reports Exx. C1, C2 and C3 which I have already adverted to. These reports show that if the dam as now constructed with the temporary construction over it is allowed to stand water can reach the lower reaches of the stream only by overflow or if the first defendant lets out water through any sluice. I am referring to this because the plaintiffs have a case that in the stream temporary bunds are put up by owners of the properties, but only at fairly long distances of about 2 to 3 furlongs, but the distance between the plaintiffs' dam and that which was put up by the first defendant was only 296 ft. If there is a longer distance between the two dams water from natural springs in between the dams may also serve as the source of supply to the lower dam. But that may not be the case where the distance between the two dams is not considerable. If there is a longer distance between the two dams water from natural springs in between the dams may also serve as the source of supply to the lower dam. But that may not be the case where the distance between the two dams is not considerable. Therefore, the plaintiffs can expect water only from the overflow or that let out by the first defendant, if plaintiffs are to have water for their own use. Before I go further into this question I would consider the rights of riparian owners in regard to water flowing through natural courses abutting on the lands of such owners, since this case will have to be decided ultimately on an application of the law on this question to the facts of this Case. 5. The plaintiffs as well as the defendants are riparian owners, the properties of defendants being adjacent to the stream at the higher reaches. The water in such a natural course is open to use by the riparian owner for all primary purposes, irrespective of diminution in the quantity of water resulting from such use. Domestic use, use for cattle, and such other purposes are primary purposes. But in diverting water for secondary purposes such as for irrigation or for running a mill the use by the riparian owner is subject to the restriction that such use shall not cause material diminution in the supply in the stream to other riparian owners. The rights of the other riparian owners should not be sensibly injured. Any riparian owner who seeks to use the water of a natural stream must use it reasonably keeping in mind that he is not entitled to exclusive user of the water of the stream and that the fundamental consideration is that the user by the other riparian owners should not in any way be prejudiced by the way he diverts the resources to his own purposes. S.7 of the Indian Easements Act recognises this right of every owner of immovable property. S.7 (b) recognises the right of every owner of immovable property to enjoy, without disturbance by another, the natural advantages arising from its situation subject to any law for the time being in force. S.7 of the Indian Easements Act recognises this right of every owner of immovable property. S.7 (b) recognises the right of every owner of immovable property to enjoy, without disturbance by another, the natural advantages arising from its situation subject to any law for the time being in force. One of the natural advantages that is enjoyed by an owner of property which is situate adjoining a stream is to exploit the water of the stream for his own purposes subject to the limitation to which I have already referred. Illustration 0) in S.7 runs as follows: "The right of every owner of land abutting on natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land, and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners." In the former part of this illustration the primary use is referred to. There is no limitation in the matter of the primary use. In the latter part of the illustration the secondary use is referred to. But that is qualified, that qualification being that no material injury to other like owners be caused. What exactly would be material injury to other riparian owners is the question which would than arise. As I said earlier, material injury would be caused to other riparian owners if their right to use the water of the natural stream, whether for primary or for secondary purposes is in any way materially affected. It would be materially affected if there is perceptible diminution in the supply of water to them. Such injury may arise by reason of the volume of the water diverted by the upper riparian owner and also the mode employed by him to divert such water. 6. The Privy Council in the decision in Debi Pershad Singh v. Joynath Singh (ILR. 24 Cal. 865) considered the question of the right of a riparian proprietor to divert and use water for the purpose of irrigation. 6. The Privy Council in the decision in Debi Pershad Singh v. Joynath Singh (ILR. 24 Cal. 865) considered the question of the right of a riparian proprietor to divert and use water for the purpose of irrigation. Their Lordships held at page 874: "The right claimed by the appellants in the first conclusion is not less broadly asserted in the body of the plaint, and is neither more nor less than a right on the part of an upper proprietor to dam back a river running through his land, and to impound as much of its water as he may find convenient for the purposes of irrigation, leaving only the surplus, if any, for the use of proprietors below. In the absence of a right acquired by contract with the lower heritors, or by prescriptive use, the law concedes no such right. The common law right of a proprietor, in the position of the appellants, is to take and use for the purpose of irrigation, so much only of the water of the stream as can be abstracted without materially diminishing the quantity which is allowed to descend for the use of riparian proprietors below, and without impairing its quality. What quantity of water can be abstracted and consumed, without infringing that essential condition, must in all cases be a question of circumstances, depending mainly upon the size of the river or stream, and the proportion which the water abstracted bears to its entire volume." In order to divert water to one's own use a riparian owner who diverts water in the upper reaches of the stream may have to erect bunds. That is one of the ways by which, in this country, water is diverted for the purpose of primary as well as secondary use. The question in each case would be whether the bund erected at any particular point is of such a character as to injuriously affect the riparian owners in the lower reaches of the stream. The High Court of Madras in the decision reported in The Secretary of State v. Ambalavana Pandara Sannadhi Avergal (AIR. 1914 Mad. 552) had occasion to consider the question of the propriety of erection of a bund or dam in a natural river course. The High Court of Madras in the decision reported in The Secretary of State v. Ambalavana Pandara Sannadhi Avergal (AIR. 1914 Mad. 552) had occasion to consider the question of the propriety of erection of a bund or dam in a natural river course. Discus-ing the question the court held: "The plaintiff is a riparian proprietor; he has a natural right to use the water of the stream for irrigating the lands of his Adangarkulam village, provided he does not thereby cause any material injury to the other riparian proprietors. What quantity of water he is entitled to take and how he is to take it for irrigating the lands must depend upon the circumstances of each case. Erecting a dam or bund across the bed of the river when it is low to arise the water to a sufficient height to divert it into an artificial channel for irrigation is one of the common methods in this Presidency of using the water of a stream by a riparian proprietor. That a dam may be erected when it is reasonably required for the use of stream water is recognised by the Judicial Committee: see Minor v. Gilmour (1859) 12 M. P. C. 131= 7 W. R.328 - 3 L. T. 98) and Debi Parshad Singh v. Joynath Singh ( (1897) 24 Cal. 865 - 24 I. A. 60 (PC.))." Referring to the case of McCartney v. Londonnerry and Lough Swilly Railway Company (1904 A. C. 301) the Privy Council in the decision reported in Secy. of State v. Sannidhiraju Subbarayudu (AIR. 1932 PC. 46) considered a case of diversion of the entire water of a stream as against a case of diversion of only part of the stream. When only part of the stream is taken and that for purpose of irrigation, the Privy Council held that "the only limitation is that the amount taken shall not be so much as to hurt the right of the inferior owner to have the stream passed on to him practically undiminished." The earlier decisions on this question were reviewed by the Madras High Court in Sethuramalinga Ayyar v. Anand Padayachi (AIR. 1934 Mad. 583 (2)). 1934 Mad. 583 (2)). Dealing with the contention by the counsel for the appellants that injunction shall be ordered to prohibit anything in the nature of a dam being put up by the defendants apart from any question as to whether or not it materially affects or diminishes the flow of the water in the stream, Justice Varadachariar held: "It seems to me that it is not safe to lay. down as a general or absolute proposition that under no circumstances can an upper riparian owner resort to particular methods of diversion irrespective of the question whet her such method of diversion materially diminishes the flow of water or not. The very case in 1932 PC. 46 (Secy. of State v. Subbarayudu), to which Mr. Krishnaswami Ayyar drew attention also recognizes the possibility that under certain circumstances and provided no material injury is done water may be diverted by the upper riparian owner for the purpose of irrigation subject to the limitation that the amount taken shall not be so much as to hurt the rights of the inferior owner to have the stream passed on to him practically undiminished: see pp. 277 and 278. In these circumstances, I think it will be best not to make any reference in the decree either by way of authorization or by way of prohibition to erection of a dam or other method that may be employed by the upper riparian owner. The rights of the upper and lower riparian owners are respectively declared in Ills. (j) and (h), S.7, Easements Act, in the light of the rights no declared, I think it will be best to frame the decree in the following terms: "Declare that the defendants are entitled to such rights in the suit stream as belong to an upper riparian owner and that the defendants were not entitled to put up the dam complained of in the plaint and restrain them, their agents and servants by an injunction from interfering with the suit stream in such a manner as materially to diminish the flow of the stream." More recently the Bombay High Court summarised the principles that could be deduced from the decisions bearing on this question in the decision reported in The State of Bombay v. Lexman Sakharam Pimparker (AIR. 1960 Bom. 490). 1960 Bom. 490). The following propositions which were so laid down is in Para.11 of the judgment: "(1) A riparian owner, in the exercise of his right to use the water of the stream for extraordinary purposes such as agriculture, can impound and divert water to irrigate his land adjacent to the stream. (2) The right is not an absolute or exclusive right. He cannot abstract water ad libitum for his right is conditioned by the similar right of other riparian owners who have co-extensive rights to the water of the stream. It is limited but only by rights of persons in similar position having lands abutting both sides of the stream. The crucial condition is that the user of the stream by him must be a reasonable use and not capricious or such as would inflict sensible injury on others similarly situated. (3) This standard of reasonableness applies to the volume of water that he can divert, to the purpose for which he can utilise it as also to the mode or method that he may adopt for impounding and channelling such water. (4) There is no rule exclusive or inclusive which defines the mode or specific methods or manner of diverting that water for that must depend on a variety of factors including for instance geographical and natural features of the lands of the riparian owners upstream and downstream, the terrain, and the magnitude of the stream. (5) A normal and usual mods or method of diverting water adopted in many parts of the country and more so in rocky or hilly terrains is that of putting up in the stream Kachha or Pakka Bandharas (dams). In case of such terrains and principally in higher reaches of a small river or rivulet this is the most practicable and economical method and it is too fate in the day now to throw doubt on the reasonableness of this ancient system. It is incidental to the right itself. But the Bendharas must be such that they permit the flow of the water down stream and without diverting the natural course of the stream. (6) The riparian rights of lower owners is to have the water of the stream transmitted to them continuously and in a manner which does not materially affect their enjoyment of the right. But the Bendharas must be such that they permit the flow of the water down stream and without diverting the natural course of the stream. (6) The riparian rights of lower owners is to have the water of the stream transmitted to them continuously and in a manner which does not materially affect their enjoyment of the right. An upper riparian owner who puts up a Bandha must, therefore, take care to see that the stream continues to flow without interruption and without any substantial diminution in volume." It is useful to extract what Justice Dessi had said in that judgement at Para.10: "Every owner of land adjacent to water running in a defined natural course whether higher riparian owner or lower riparian owner has a right arising jure naturae to the accustomed flow of water both as to quantity and quality. His right to the ordinary or primary use of water flowing past his land extends to domestic purposes including purposes of his cattle. This he can exercise without regard to diminution of supply of lower owners. His right to extraordinarily or secondary user can, however, be exercised only within limits. We may incidentally mention that this natural right of a riparian owner is recognized in Illustration "J" to S.7 of our Easements Act. This right may be exercised by diverting the water for other purposes such as agriculture but subject to the crucial condition that his user is reasonable. Reasonable use must always be a matter of degree and the true rule of the matter would seem to be that his user must not deprive lower owners of their accustomed flow of water by interrupting the natural course and regular flow of the stream." The principle that the injury to a riparian owner by an upper riparian owner taking water from a natural course should not be sensible and that every riparian owner is entitled to have the flow of running water without sensible diminution in quantity or sensible alteration in quality has been accepted in the decision of this Court reported in Rama Bhatta v. Krishna Bhatta (1962 K.L.J. 45). In a recent case of the Gujarat High Court reported in Collector of Panchmahala v. Desai Keshavlal Panalal (A. I. R.1969 Gujarat 276) this question is considered with reference to S.7 of the Indian Easements Act, and the principles which have been summarised in the decision of the Bombay High Court in A. I. R.1960 Bom. 490 have been adopted as laying down the correct law. 7. What I have stated above is sufficient for the purpose of this case Mo doubt, an upper riparian owner can claim that to irrigate his own paddy fields he is entitled to supply of water from the river or stream. He can even put up a bund across the course of the river for the purpose of diverting water for his fields. But one thing that must be remembered is that his acts should not in any way injure the other riparian owners who depend upon the water from the same stream and who have a right to expect water from the stream to irrigate their own lands. The stream must continue to flow without sensible diminution. In the present case I will refer to the evidence keeping these matters in view. pw. 1, the first plaintiff swears that by the construction of the dam put up by the defendants he would not get water to his dam site as he used to do, and that the riparian owners at the lower reaches of the stream would not get water for their agricultural use. The case of the plaintiffs is that till the first defendant began the construction of the dam, which is now sought to be restrained, he was diverting water for his paddy fields from the dam site at the adjoining property of one Velayudhan.1st plaintiff also swears that by the construction of the dam very little water was being received at the lower reaches of the stream. pw. 2 is a person who is cultivating paddy fields near about the plaintiffs' paddy fields. He categorically swears that due to the construction of the dam by the first defendant the plaintiffs will not get any water from the stream and that he too had been depending upon the water from the stream. pw. 2 is a person who is cultivating paddy fields near about the plaintiffs' paddy fields. He categorically swears that due to the construction of the dam by the first defendant the plaintiffs will not get any water from the stream and that he too had been depending upon the water from the stream. Though not a riparian owner by courtesy of the plaintiffs he too was using the water from the stream, but now he was not able to have the second crop for two years consecutively because of the construction of the dam by the first defendant. He further swears that if water is to be received at the lower reaches of the stream it can be only by the overflow at the point where the first defendant has put up the dam. The first defendant who has been examined as Dw.1 in a way admits to what has been spoken to by the first plaintiff and his witness pw. 2. According to him by the construction of the dam there will be no obstruction to the flow of the water down stream and he explains it by saying . He also says that if a dam is constructed water will accumulate there and Therefore it is very clear from the evidence is the case that if the masonry dam now constructed with the temporary construction on top of it is allowed to remain then the only expectation of water to the lower reaches of the stream would be by the overflow or in case the first defendant lets out water through any sluice. Thus the plaintiffs and the other riparian owners would be completely at the mercy of the first defendant for the supply of water to their stream. The first defendant as an upper riparian owner is not entitled to put the plaintiffs to such a plight. He is no doubt entitled to take water for his agricultural purposes. But it would be possible to do so if he is allowed to retain his masonry dam which stands up to a height of 4' 1" in the middle over the stream bed. That would be sufficient for collecting water for his use. No doubt, directly he will not be able to take water. But it is up to him to devise appropriate methods to utilise the water so collected. That would be sufficient for collecting water for his use. No doubt, directly he will not be able to take water. But it is up to him to devise appropriate methods to utilise the water so collected. Keeping in view the fact that his rights are subject to the rights of other riparian owners it is not possible to allow him to put up a temporary construction over it, the effect of which would be, to practically deprive the other owners of the use of the stream except occasionally and at the will of the 1st defendant. 8. Taking into account all these circumstances I think the proper course would be to allow the masonry dam so far constructed which it is seen from Ex. C3 report is 4'1" height at the middle, to remain. It need not be demolished. But the first defendant or any one under him will not be permitted to put up any temporary or any other construction over such masonry dam or to prevent the flow of water above the masonry dam. An injunction will issue restraining the first defendant either by himself or through his agents from in any way obstructing the flow of water subject to what I have stated above about the dam which is now in existence. I think such an injunction will be sufficient to dispose of the suit. 9. In the result, I allow the second appeal subject to the directions contained above, but direct both parties to suffer their costs. Allowed.