( 1 ) THE appellant was the defendant in OS. No. 97/ 1961 on the file of the district Munsiff at Puttur. Against the decree passed therein, he preferred as. No. 99/1962 before the Civil Judge of Mangalore, who modified the judgment of the trial Court and against this decree and judgment the defendant has preferred this Second Appeal. ( 2 ) THE respondent-plaintiff and the defendant are owners of lands lying adjacent to a stream known as Perlampady Halla, running from south to north. The plaintiff is the lower riparian owner, while the defendant is the upper riparian owner. As the lower ,courts have done it would be useful to refer to the plan Ext. A-16 prepared by the Commissioner appointed in the lower Court. The plaintiff is the owner of lands bearing, Nos. 216/2, 216 3 and, 216/1 which lie to the west of the stream. The plaintiff purchased these properties under a sale deed dated 5-10-1938 marked Ext. A-6. The defendant is the ownerof S. Nos. 219,1, 219/4 and 391/2 which are to the east of the. stream. He purchased these properties under the document dated 16-5-1957. After these respective purchases, the plaintiff and the defendant have been extending cultivation of their lands making use of the water of the streamas also feom the tanks near the lands in question. The plaintiff's allegation is that for the purpose of irrigation of S. Nos. 216/1, 216/2 and 216/3 a mamool katta is put up every year at the point D-1. . It is stated that it is a mamool ancient katta and that all the water impounded in that katta or dam is led by means of a diversion channel marked K. 2 in the plan and it is used for the irrigation of all the lands of the plaintiff. By the use of the water of the tank it is alleged that the plaintiff has been raising three crops in S. No. 216/2 and a portion of S. No. 216/1 and he has subsequently raised areca gardens in portions of S. Nos. 216/2 and 216/3. ( 3 ) THEY are said to be over 20 years old. By the use of the water of the tank it is alleged that the plaintiff has been raising three crops in S. No. 216/2 and a portion of S. No. 216/1 and he has subsequently raised areca gardens in portions of S. Nos. 216/2 and 216/3. ( 3 ) THEY are said to be over 20 years old. It is also alleged that the plaintiff has been using the water of the dam for over the statutory period and by reason of such exclusive use of the waters in the katta he has acquired a prescriptive right for using all the water in the katta for raising three crops in the wet lands and for the areca gardens laid therein. The plaintiff claims a vested right for the exclusive user of all the waters of the said katta for cultivation of the properties without interference in any manner. It is alleged that the defendant who is an upper riparian owner has been cultivating his lands only using the waters of the tank T, that neither he nor any of his predecessors in interest ever used the waters impounded in the dam. The complaint of the plaintiff is that in about Aug. 1959 the defendant started extending and raising extensive new areca gardens in S. No. 219/1 and also in portions of S. Nos. 218/2, 366/1 and 391/2. He is said to have installed an oil engine pump in December 1959 at the point P-1 to the west of his properties and that he has been drawing the waters impounded at the mamool katta, for the purpose of irrigating his new plantations as well as the old bits. Such user of the water by the defendant has resulted in the diminution of water supply to the plaintiff from the dam at point D-1. It is stated that though the plaintiff objected to the user of the waters by the defendant, the defendant has been persisting in it and the level of the water in the katta dropped down considerably and the plaintiff has been driven to the necessity of using kaidambes also to bale out water from the katta into the channel k-2 to lead water to his properties. This diminution of water has also resulted in the plaintiff's suffering acute shortgage of water to his areca gardens and even the kolke crops did not grow well for want of sufficient water. Thus he has suffered great injury and loss. Therefore, the plaintiff prayed for a decree- (a) for a declaration that the plaintiff is absolutely entitled to the exclusive user of all the waters that are impounded in the plaintiff's mamool katta known as Ganesh Gundi katta that is at point D-1in the plan and that the defendant has no manner of right to use or divert any of the waters impounded in the said katta to any of his properties; and (b) for a permanent injunction against the defendant restraining him from using any of the waters impounded in the said katta in the said stream by lifting any of the said waters by means of any pump or otherwise in any manner diverting any of the said waters for the use of his properties. " (Sic. ). The defendant denied the exclusive use of the water pleaded by the plaintiff. He contended that some of the lands of the plaintiff were merely two crop fields and now they have been converted into areca garden. In some of the lands of the plaintiff only one crop was being grown annually. Formerly the plaintiff had no areca garden. It is stated that the planitiff has other sources of water to his lands. It was contended that formerly the katta was not at the place shown in the plaint, but it was actually put up at D-1as the plaintiff proposed that the - katta may be put up lower down, because larger quantity of water would be impounded at that place. It is alleged by the defendant that till 1957 no katta water was being led to the plaintiff's fields and it is only in 1957 that the katta was put up by agreement of parties and it is by such agreement of parties that the defendant put up an oil engine pump for baling out the water from Perlampady thodu in November 1957 as he thought it would be easier and cheaper in the long run than baling out water by means of piccotas for his areca gardens. The defendant denied the allegation that there has been any diminution of water resulting in the plaintiff's garden suffering from shortgage of water. It is contended by him that the plaintiff who had no right to take the water from the katta gets an additional right by virtue of the agreement. It is submitted that the plaintiff has no prescriptive right as pleaded by him and it is not true that the plaintiff's lands have suffered in any manner. ( 4 ) THE lower Courts held that there was a mamool katta at the point d-1 marked in Ext. A-16. The trial Court held that the plaintiff is entitled to the exclusive use of all the waters impounded therein for the irrigation of his lands. The appellate Court took a contrary view on the finding that the plaintiff is entitled to exclusive use of all the waters from the katta. The lower Courts held against the defendant in regard to his plea that the katta at D-1was constructed in the year 1957. The trial Court held that the defendant was not entitled to take water from the katta and therefore the installation of the pump at point P-1 by the defendant for drawing water from the katta is unauthorised and lessens the water in the katta and materially affects the water supply to the plaintiff's lands. The lower appellate Court held that the plaintiff can only get a declaration that he has a right to put up a katta at D-1 and take water from the stream to his fields through channel K-2 and the defendant is liable to be restrained from causing such diminution of water at the katta D-1 as would obstruct the free flow of water in the channel K-2 by drawing water through oil engine pump at P-1. Thus the decree passed by the trial Court totally prohibiting the defendant from making use of water impounded at the katta D-1 was modified by permitting the defendant to make use of water but preventing him from drawing water by an oil engine pump. It is against this judgment and decree of the learned appellate judge that the defendant has preferred this appeal. It is against this judgment and decree of the learned appellate judge that the defendant has preferred this appeal. ( 5 ) NOW that the plaintiff has not preferred any appeal against the appellate decree, there is a conclusive finding against him that he is not entitled to the exclusive use of water and that the defendant is also entitle to make use of the water, but he could do so only without causing material injury to the plaintiff. So, the question that Sri K. R. Karanth, the learned counsel for the appellant, has addressed himself to mainly is, whether there is material injury caused to the plaintiff. He submits that there is no evidence in the case to establish that there has been a diminution of water in the dam so as to materially affect the raising of the crops by the plaintiff. It was submitted that there is evidence in the case which bears out that the lands of the plaintiff are well fed with water and that they are in good condition. With regard to the rights of the riparian owners of the lands, Sri Karanth invited my attention to S. 7 of the Easements Act, sec. 7, Illustrations (h) and (j) give a clear idea as to the rights of such riparian owners. Illustrations (h) and (j) are as follows:"s. 7. Illustration (h)-The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by the other persons to flow within such owner's limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner's limits without material alteration in quantity or temperature. Illustration (j)-The right of every owner of land abutting on a 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. "illustration (h) refers to the rights of lower riparian owners to get water, without material alteration etc. There is no prohibition for the use water bv the higher riparian owner for irrigation purposes by altering the method of. such user. It is not necessary that the ancient method of lifting water should be adopted even now, when improved methods of lifting water have been invented and when water could be lifted with greater ease and speed. This right to lift water by the upper riparian owner is circumscribed bv the limitation that he should not cause material injury to the lower riparian owner. Sri Karanth invited my attention to the decision in Abbasali v. S. K. Munir, AIR 1963bom 305 which proceeds on the basis that there could be no objection for the use of water through channels or by artificial contrivances, without which in these days it is difficult to make water available even to the lands which are actually situated on the banks of the stream. In other words, it would be impossible to exercise even the natural right of a riparian owner. It is contended by the respondent's Counsel, Sri Mohandas Hegde. that this decision does not definitely recognise a different mode of enjoyment. As I have stated before, a different and more sophisticated mode or method of enjoyment is not prohibited. Even the respondent's Counsel was unable to maintain that the use fo sophisticated mode or method of lifting water is prohibited under all circumstances. In State of Bombay v. Laxman, AIR 1960 Bom. 490 . with refence to the rights of a ripariarr owner, certain propositions are laid down, as follows: " 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. " ( 6 ) THIS proposition is not disputed in this case as the right of the plaintif to put up the dam or katta at the point D-1 has been recognised by the courts below and it is not the case of the defendant that a bund should not be put up. " ( 6 ) THIS proposition is not disputed in this case as the right of the plaintif to put up the dam or katta at the point D-1 has been recognised by the courts below and it is not the case of the defendant that a bund should not be put up. The crucial condition for the use of water by the riparian owners is that the use of the stream by them must be a reasonable use and not such as would inflict a sensible injury on the others similarly situated. ( 7 ) IT is also stated in the said decision that:"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. " ( 8 ) THEREFORE, the test that has got to be applied in this case is whether there has been any sensible injury caused to the plaintiff by the use of the water lifting the same by the aid of an oil engine pump, by the defendant. In Secy, of State v. Subbarayudu, AIR. 1932 PC. 46. the rights contemplated in Sec. 7. Illustrations (h) and (j) have been reiterated. It states that:"a riparian owner is a person who owns land abutting on a stream and who as such has a certain right to take water from the stream. His right to the use of the stream does not depend upon the ownership of the soil of the stream and he can take water first of all for domestic use and then for other uses connected with the land of which irrigation of the lands which form the property is one. . . . . . " ( 9 ) MY attention is invited by Sri Karanth to a decision of this Court in rsa. No. 551/1962, RSA. No. 551 of 1962. which was a case similar to the one in question. In the said decision the learned Judge observes:"from what has been said above, it follows that the defendant who is a riparian, has a right to take water from the said channel for irrigating his lands in S. No. 48 4b and 78/2c. No. 551/1962, RSA. No. 551 of 1962. which was a case similar to the one in question. In the said decision the learned Judge observes:"from what has been said above, it follows that the defendant who is a riparian, has a right to take water from the said channel for irrigating his lands in S. No. 48 4b and 78/2c. As already noted, both the Courts below have found that as a result of the defendant's user of the water, water level in the channel has not been materially affected. In other words, the Courts below have found that because of the user of the water by the defendant no material injury has been caused to the plaintiff. " ( 10 ) IT is clear that what is most relevant in this case is whether material injury has been caused to the plaintiff by the use of water by the defendant. With reference to the improvement of the lands or the raising of the second or the third crops, the learned Judge in the above cited decision states:"but that does not take away his right to make a reasonable use of the water from the channel for irrigation purposes which includes raising a second or a third crop, in his lands, if by doing so he does not cause material injury to the plaintiff. "the same reasoning holds good even in respect of converting wet lands to areca gardens. The learned Counsel for the appellant invited my attention to the decision in Karuppa Gounder v. Muthuswami Counder, (1968) 1 MLJ. 397 . which supports the observations made earlier. In the said case it is observed that:"it cannot be said that the co-owner's act in the installation of a pumpset and using the same for taking and drawing water and irrigating the lands is an unreasonable user or enjoyment of his right. Each co-owner is entitled to enjoy the common property in the best and most advantageous manner so long as there is no invasion or infringement of the rights of the other co-owner or co-owners. " ( 11 ) IT is further observed that: "it is not open to the plaintiff, to dictate to the defendant as to how best the defendant is to enjoy his right to take water from the well, of which he is a co-owner, having half share therein. " ( 11 ) IT is further observed that: "it is not open to the plaintiff, to dictate to the defendant as to how best the defendant is to enjoy his right to take water from the well, of which he is a co-owner, having half share therein. " ( 12 ) WHAT is stated with reference to co-owners, applies equally well to the riparian owners. The said decision is also helpful to the defendant to support his contention that the plaintiff has not placed adequate data to come to the conclusion that there has been a diminution in the water supply as to cause him material injury. The plaintiff has to prove what quantity of water he was getting, what extent of land he was cultivating and what cultivation he was adoptino and how all these are affected by the defendant's user of water by altering the mode of lifting the water. The observations in the Madras case are very pertinent to the facts of the case on hand. It is observed therein as follows:"further, I am of opinion that without adequate data about the extent of the lands irrigated, the dimensions of the well, the nature of the sorings and the quantity of water available during rainy season and the rest of the year, it is not possible to impose any restriction or give any indications as to how the plaintiff and the defendant should enjoy their right to take water from the well. It may be that even if the defendant uses the pumpset all throughout the week, there may still be enough water left for the plaintiff to irrigate his lands, or it may be that the lands which the plaintiff irrigates may be far less in extent than the lands which the defendant is irrigating with the use of the water from the well. The position may be vice versa. As observed earlier, it depends upon very many factors about which there is no pleading, no evidence. " ( 13 ) SO, as contended by Sri Karanth, the Courts have to investigate as to whether in this particular case the plaintiff has placed enough data to come to a conclusion that any material injury has been caused to him and whether there has been any diminution of water. " ( 13 ) SO, as contended by Sri Karanth, the Courts have to investigate as to whether in this particular case the plaintiff has placed enough data to come to a conclusion that any material injury has been caused to him and whether there has been any diminution of water. Sri Mohandas Hegde, the learned Counsel for the respondent contended that the upper riparian properietor has no right to divert the water by installing a pump. He placed reliance on a decision in Manjappa Shetty v. Manjakka Shedthi, AIR. 1961 Mys. 268=1962 Mys. L. J. Supp. 6. The facts of that case are distinguishable. The second appeal there arose out of execution proceedings wherein a permanent injunction was made against the judgment debtor restraining hir from interfering with the right of the decree-holder to take water from the water course, which was the subject matter of the suit. The complaint made by the decree-holder was that the judgment-debtor had impeded the flow of water in the water course and brought about a diminution in the supply of water to the decree-holder's land. It was a case where the judgment-debtor diverted the free flow of Water in the water course by making it percolate into his land, which he was not entitled to do. This decision does not deal with the natural right of a riparian owner to make use of the water of the stream. With reference to the decision in S. A. No. 551/1962 (4) of this Court, it was submitted that there was no reference in it to the decision of this Court in Manjappa Shetty v. Manjakke Shedthi,. It appears to me that it was unnecessary in the circumstances of the case to make a reference to the said decision. The decision in S. A. No. 551/1962 (4) lays down the law as recognised under the Easements Act and also in the several decisions which have been cited before me. ( 14 ) THE respondent's Counsel submitted that he relies on category No. 4 in state of Bombay v. Laxman, which I have referred to earlier. So, it remains to be examined whether in this case the defendant was justified in adopting the method of lifting the water by an oil engine pump. I shall advert to this aspect a little later. Debi pershad Singh v. Joynath Singh, ILR. 24 Cal. 865. So, it remains to be examined whether in this case the defendant was justified in adopting the method of lifting the water by an oil engine pump. I shall advert to this aspect a little later. Debi pershad Singh v. Joynath Singh, ILR. 24 Cal. 865. recognises the right of a riparian owner. It recognises that his common law right is, to take for the purpose of irrigation so much water only as can be abstracted without arially diminishing what is to be allowed to descend. What quantity of water can be abstracted and used without infringing that essential condition must in all cases be a question of the circumstances, depending mainly upon the size of the stream and the proportion which the water taken bears to its entire volume. In Secretary of State v. Ambalavana pandora Sannadhi, ILR. 37 Mad 369. the Court recognises the right of a riparian owner to, put up a bund or dam and observes:"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 a river when it is low to raise 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. " ( 15 ) FROM these observations it follows that how the water is taken depends upon the circumsances of the case. Similarly whether by the use of such water by the upper riparian owner any material injury is caused to the other riparian proprietor depends upon the facts of the particular case. Sri Mohandas Hegde, invited my attention to a decision in chenchuraghava Reddy v. State of Madras, 1961 (1) An. W. B. 247. where the installation of an oil engine was prohibited. Sri Mohandas Hegde, invited my attention to a decision in chenchuraghava Reddy v. State of Madras, 1961 (1) An. W. B. 247. where the installation of an oil engine was prohibited. I have already referred to the several decisions which lay down that the method of lifting water for the purposes of irrigation may vary, depending upon the circumstances of each case. In the case cited above, the prohibition was to instal an oil engine for pumping water only with reference to the facts of that case. In the course of the judgment, the Court expresses the opinion that there is considerable force in the contention that the picota or the gudalu system should not be perpetuated when it is open to the party to take water by an easier or cheaper method viz. , by installing an oil engine. By the advance of science it is open to substitute other better methods of taking water and that it is not necessary always to stick to the old methods of lifting water. It was found that it was not possible to permit the plaintiff to instal the oil engine inasmuch as by granting such permission he would pump out water to the prejudice of the other ayacutdars. ( 16 ) THEREFORE, in view of the several decisions that have been referred to above, the only question that requires to be considered is whether any material injury has been caused to the plaintiff. On this aspect the learned trial Judge merely states as follows: x x x x x x ( 17 ) IT is clear from this part of the Commissioner's report that the dam is nearly 60 feet in length and 61/2 feet in depth. There is a pit at the point K-2 8 feet in depth. The plaintiff has also made arrangements to dig a pit and collect water at the point K-2. It is also clear from the report that the height of P-1 from the river level is about 8 feet and the water for the defendant's land is to be lifted from the point P-1 from the river below. This enables one to infer that lifting up water from the picota is difficult, and therefore installing a pump to lift the water cannot be said to be unjustified. This enables one to infer that lifting up water from the picota is difficult, and therefore installing a pump to lift the water cannot be said to be unjustified. It is also made out from the Commissioner's report that the plaintiff's gardens PG3, PG4 and PG5 were well watered 3 or 4 days prior to his first visit. They were also well watered a day prior to his second visit. The garden which was irrigated by the water oi K-2 looked to be well maintained and d d not look to have suffered any scarcity of water. Therefore, it is clear mat the plaintiff's gardens have not suffered for want of sufficient water or for scarcity oi water. If the katta is full there is free flow of water to K2, otherwise it will have to be baled out into K-2. This does not mean that there is no water to plaintiffs' lands and they suffer. It may entail greater hardship to the plaintiff. But there is no material in this case to attribute this hardship to the pumping out of water by the defendant by the installation of an oil engine. I have considered the evidence of the parties and the report of the Commissioner in detail as the lower Courts have failed to do so, and as the parties have placed all the material before the Court. I have thought it appropriate to discuss the evidence and come to a conclusion on the question whether the plaintiff has made out a case of material injury, which is the most relevant factor to be established before any relief can be granted to the plaintiff. In view of my conclusion that the plaintiff has not suffered any material injury on account of the defendant taking water from the stream, harnessing an oil engine pump, the plaintiff is not entitled to any relief. ( 18 ) THE lower appellate Court was in error in restraining the defendant from drawing water by the use of an oil engine pump at point P-1. It has not attached due importance to this important consideration regarding material injury. It ought to have allowed the defendant's appeal in its entirety. Therefore, the judgment and decree of the lower apppellate Court are set aside. This second appeal succeeds and the plaintiff's suit is dismissed with costs throughout. --- *** --- .