( 1 ) THIS is a plaintiffs' appeal against the dismissal of their suit for a declaration that they have a right to divert sufficient water of a nala through artificial channels by constructing temporary dams across the nala to irrigate some 60 acres of their land, for a permanent injunction restraining the defendants from doing any act calculated to diminish the quantity of water thus required and for Rs. 4,000/- as damages for the loss caused to them by the wrongful interference of the defendants in the year 1963-64.

( 2 ) IT is common ground that the plaintiffs were proprietors of village Zinda where they held 60 acres of sir and khudkast lands as detailed in paragraph 1 of the plaint. These lands are now held in Bhumiswami rights. Through the village area courses from south to north a nala called Belia Nala. It is not now disputed that at point EFGH, the State Government constructed in the year 1950-51 a regulator across the nala in pursuance of a scheme for providing irrigation under small projects. By means of this regulator, water used to be impounded towards the close of the rainy season by blocking the gates with wooden planks and earth. Admittedly, the plaintiffs have not used the water of this nala for irrigating their lands from 1963-64.

( 3 ) THE plaintiffs' case, shortly stated, was this. For the last 75 years, the plaintiffs and their ancestors have been putting up every year a kacha dam across the nala at point JKLM and then taking water of the nala through the artificial channel knop to their land described in para. 1 and irrigating it. In this way, they had acquired a right to use the water of the nala in that manner by prescription or lost grant. But, for the first time in December, 1963, the defendants fully closed the gates of the regulator down below with the result that the impounded water rose in level and prevented construction of the kacha dam or use of water for irrigation through the channel KNOP. According to the plaintiffs, they suffered on this account a loss of Rs. 4,000/ in the year 1963-64. On the basis of these averments, the plaintiffs claimed the various reliefs indicated in the opening paragraph.

( 4 ) THE defendants denied that the plaintiffs had acquired any right, either by prescription or by lost grant, to use the water of the nala in the manner alleged. According to them, the State Government had absolute right to construct a pucca dam at the place EFGH and it could not be questioned by the plaintiffs. Further, the regulator constructed in 1950-51 was in use ever since then and the plaintiffs had in that year taken water from the regulator and paid the tax prescribed for it. Ever since then, they had been negotiating with the State Government either to purchase the regulator or to be permitted to take water from it without payment of any tax. Thus their rights, if any, were interfered with as early in 1949 and their claim was long barred by time. They also denied that, in the year 1963-64 the plaintiffs had sustained a loss of Rs. 4,000/- or at all for the reason that they could not use any water from the nala for irrigating their land.

( 5 ) WHILE accepting the plaintiffs' case in regard to use of water from the nala in the manner alleged by them, the lower Court dismissed the suit on two grounds. In the first place, the cause of action arose in 1949 when the defendants interfered with those rights and the claim was long barred by time. Secondly, the plaintiffs failed to prove that they suffered any loss in the year 1963-64 by reason of being deprived of the nala water for irrigating their fields. ( 6 ) HAVING heard the counsel, we have formed the opinion that the appeal must be dismissed, though for somewhat different reasons. Now, a right by prescription, as indeed a right by lost grant, can be acquired only against the person, who could grant it or who is in a position to acquiesce in or resist its acquisition as he likes. In other words, there must be a servient tenemen