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11. The Commissioner's plan and the survey plan make it clear what was the position prior to 1896 and what is the present position. The tank lies just below two other tanks named Reddiar tank and Vadukar tank. Prior to 1896 the western tank of the two other tanks, that is, the Reddiar tank, was fed by a stream called Virasamarthu Odai flowing from the north, and the eastern tank by a channel which conveyed water from an Odai called Athan Odai taking its source in the Sirumalai hills. This Odai ran from north to south east of the two upper tanks and east of the plaint tank, but the water was taken off by the channel at a point north east of the upper tanks. The plan also shows that the Athan Odai channel, besides feeding the eastern tank, ran down between the two tanks and discharged the surplus water into the plaint tank. It appears that some surplus water from the Vadukar tank passed into the plaint tank and a certain amount of rain water, which is practically negligible, flowed off the land south of the upper tank down to the bund of the plaint tank. These were the nominal sources of supply for the plaint tank.

12. In about the year 1895 the Periyar channel was cut across from east to west north of the upper tanks, and the course of supply of all the three tanks was immediately altered. For the Reddiar tank the water was brought from the Periyar channel down the old Virasamarathu Odai direct to the tank, and for the Vadukar tank a new channel was also led from the Periyar channel. This latter channel joined the course of the old Athan Odai channel where it ran between the two tanks towards the plaint tank, and defendants Nos. 2 and 3, the assignees of land in the bed of the tank, have continued this channel down to the tank bund, enclosed it by a bund and created an outfall from it for the supply of the ryots. The result is that at present the ryots receive water direct from the Periyar channel together with possibly a little surplus from the Periyar water in the two upper tanks. The old channel, the Athan Odai, has, as previously stated, been obliterated and cultivated since 1902 at least. The lower Appellate Court has found that plaintiffs have not suffered any damage by the present condition of the Sallivedan tank, and indeed it appears that having this abundant Periyar supply they are now cultivating a second crop. These facts are to be found in the judgments of the Courts and are not disputed hers.

13. The Subordinate Judge states the proposition arising from these findings in paragraph 9 of his judgment as follows:--"The case for the defendants is that since the plaintiffs and other ryots are getting a never failing and sufficient supply of Periyar water, they cannot insist on getting the tank restored to its original state, especially as the channel from the Athan Odai which is its main source of supply is no longer available ownig to disuse and consequent cultivation in the channel bed." He continues: There is some force in this contention but the Periyar supply is only a supplementary source of irrigation. The ryots have no control over it. Sullivedan tank is the ancient and customary source of irrigation. Why should they sacrifice the natural source of water to which they are entitled as a matter of right, even though they do not now suffer for want of water from the tank? Those two sources are still available and nobody has a right to alter the customary source of irrigation. I must hold that the plaintiffs have a right to have the tank so kept as to allow the accustomed quantity of water to flow through the lands." The District Judge states the proposition more tersely. He says: The acts of the defendants restrict the plaintiff's accustomed user of the water of the tank for irrigation and he is entitled to an injunction.'

15. The first difficulty in his way, however, is this, that the old source of supply was the Athan Odai which has disappeared, This disappearance occurred before the defendants did any of the acts complained of and it necessarily follows that the acts of the defendants have not caused the failure of water from the Athan Odai. Mr. Narasimha Ayyangar has been compelled to concede this. But his argument is that if at any time the Periyar water supply ceased, the plaintiffs might be able to get the old Athan Odai channel restored and take the water from their old source of supply. Judging by the plan and from soma evidence given in the case, I believe this to be a physical impossibility for it seems to me that the Periyar channel crosses the source of the Athan Odai. But assuming that this contingency might occur, the question is whether the plaintiffs have now a right of suit against the defendants. Mr. K. Srinivasa Ayyangar argued that as there was no damage, the plaintiffs were not entitled to any relief. Mr. Narasimha relies on the doctrine laid down in McCartney v. Londonderry and Lough Swilly Railway Co. Ltd. (1901) A.C. 301 ; 73 L.J.P.C. 73 ; 91 L.T. 105 ; 53 W.R. 385 that the owner of a tenement adjoining a natural stream has no right to divert the water to a place outside the tenement and that it was not necessary for a person having rights in the water of the natural stream to prove damage. This proposition is in certain circumstances unassailable, but it starts with the proposition that the plaintiffs have a right which may be affected, whereas the important question in this case is what are the rights of the plaintiffs.