1. This is Defendant's appeal under Clause 10 of the Letters Patent against the judgment delivered by Hidayatullah J. in Second Appeal No. 440 of 1944, reversing the decree of the Additional District Judge and restoring that of the trial Court.

2. The facts material for this appeal, as admitted or found, are:

Plaintiff and Defendants were co-sharers in mouza Khairi at all material times. Plaintiff is the owner of tank No. 134 from which he irrigates his 'sir' fields Nos. 88-90-91 through the channel AB. This right, recorded in the 'wajib-ul-arz' of the village is not disputed by thje Defendants. Khasra No. 319 is the tank constructed by Government in the famine period for the benefit of the village as a whole, and is recorded 'shamlat' in the name of the proprietors of the mahal. It is not disputed that the Defendants have a right of irrigation from 'mogha' (sluice) P of this tank for their fields khasra Nos. 135 and 136 which are immediately below the tank. Khasra Nos. 138, 132, Khasra No. 133, which touches the embankment of khasra No. 154, and khasra Nos. 126, 125, 124 and 123 are also irrigated from this tank.

These fields are at a lower level than khasra No. 135. If the t