1. This is an appeal from a decree of the Subordinate Judge, Madura (West), dismissing the plaintiffs suit. The first plaintiff is a landowner of Madura who owns, among other villages, the inam village of Ananjiyur and the 4 villages, Koridagai, Thoothai, Pappangnlam and Karisalkulam, formerly attached to the Sivaganga Zamindari. Of Kondagai, the principal village, he is the Sub-Division Zamindar. Thoothai and Pap-pangulam are riparian villages. Karisalkulam, Ananjiyur and Kondagai are non-riparian but are directly or indirectly watered by small channels from the Vaigai. All the five villages are situated below Madura. On behalf of. himself and other riparian proprietors, the first plaintiff filed this suit early in 1901 together with a petition under Section 30, Civil Procedure Code (Act XIV of 1882), alleging the following causes of action:

(i) That the defendant had illegally and wrongfully constructed in June 1900 a work of a permanent and substantial character over the crest of the Peranai dam to the length of 9291/2 feet thus raising the height of the dam by 1 foot 9 inches in parts and 2 feet 3 inches in other parts and causing an obstruction to the natural flow of the water and materially diminishing the supply to the lower riparian owners.

(ii) That the defendant had about June 1866 illegally and wrongfully opened a new channel 100 feet wide in place of the old Vadagarai channel which was only 20 feet wide and thereby caused a larger volume of water to be diverted than he was customarily entitled to and thus also diminished the flow of water to the lower riparian proprietors.

2. He prayed for a declaration that the defendant had no right to increase the height of the dam or the width of the old channel, for an order for the removal of the obstruction on the dam, for the closing of the new channel and for a permanent injunction.

3. The defence was shortly as follows:

(i) That the defendant as owner of the bed of the Vaigai and the water flowing therein has by the customary law of India full power to regulate in the public interest the distribution of the water of a natural stream and consequently that even as riparian proprietors, the plaintiffs are not entitled to the undiminished flow but merely to the amount sufficient for their customary needs.

(ii) That as a fact the defendant had not diminished but increased the usual flow.

(iii) That, as the first plaintiff knew, the two works complained of had been executed by the defendant in order to utilise the large increased supply of water let into the stream by the defendant at a point 86 miles above the dam from what was known as the new Periyar reservoir, constructed by the defendant in the Travancore Hills after years of labour and at a cost of over a crore of rupees for the benefit of the district which was frequently affected by famine.

4. The Subordinate Judge who tried the suit framed 14 issues which will be found in paragraph 4 of his judgment. He gave a definite finding, however, only on the ninth issue which runs as follows:

Have the opening of the new channel and the construction of the new works at the Peranai injuriously affected or are they likely injuriously to affect the flow of water enjoyed by the plaintiffs before the introduction of the Periyar water into the river?

5. On this issue he found against the plaintiffs (on whom ho casts the burden of proof) and dismissed the suit.

6. For the purpose of this decision, the Subordinate Judge found (though this issue was not specifically raised on the pleadings) that the defendant was a riparian proprietor at the north end of the Peranai dam. He hold that there must be a permanent injury and not a prospective one or the suit was premature, that the defendant was entitled to take out the water that he put in 86 miles higher up the stream and lastly that no substantial injury had been proved.

7. It will be convenient to describle briefly the nature of the Vaigai river and the character of the irrigation works carri