Madras High Court
The Secretary Of State For India In ... vs K. Janakiramayya And 12 Ors. on 24 January, 1913
Equivalent citations: (1914)ILR 37MAD322
JUDGMENT Miller, J.
1. The learned Advocate-General argued only two questions at the Hearing of the appeal--
(1) Whether the suit is barred by limitation and (2) Whether the water-cess was properly levied by reason that the Vamsadhara river is a river belonging to the Government.
2. As to the first question, it is not denied that if the suit id a suit to establish a periodically recurring right, a suit, that is, to which Article 131 of the second schedule of the Limitation Act of 1877 is applicable, then it is barred; but it is contended that that article does not apply and that a cause of action arises on each occasion on which the cess is demanded.
3. This contention is supported by Sriman Madhabushi Achamma v. Gopisetti Narayanasawmy Naidu (1910) I.L.R. 33 Mad. 171 and the case therein referred to, Gopaladasu v. Perraju (1902) 12 M.L.J. 126; in fact, it seems to me that if those cases are rightly decided the respondents contention must prevail. The Advocate-General did not succeed in satisfying me that Sriman Madhabhushi Achamma v. Gopisetti Narayanasawmy Naidu (1910) I.L.R. 33 Mad. 171 can be distinguished. Following that case I must hold that the suit is not barred.
4. On the second point Munro, J., and I in Kandukuri Mahalakshmamma Garu, Proprietrix of Urlam v. The Secretary of State for India (1911) I.L.R. 34 Mad. 295, have held as a matter of law on the facts put before us in that case that the Vamsadhara is a river belonging to the Government: Mr. Nagabhushanam did not on this point lay before as any facts which were not before the Bench in Kanduhuri Mahalakshmamma Garu, Proprietrix of Urlam v. The Secretary of State for India (1911) I.L.R. 34 Mad. 295 but argued as a matter of law that the decision in tmat case is wrong. It has however been followed by another Bench and has not yet been overruled by a Pull Bench or a Higher Court; till that is done it is in authority which I ought to follow, and I follow it.
5. Mr. Nagabhushanam presented for our consideration some evidence as to the repair and control of the Mobagam channel by the Urlam zamindar. That evidence, it seems to 'me, does not affect the case; it might perhaps be evidence in favour of the zamindari of a contract with the Government, but does not help the plaintiffs, who do not allege any contract with the Government for the supply of water.
6. I would allow the appeal and dismiss the suit with costs in both courts.
Sankaran Nair, J.
7. This is an appeal by the Secretary of State for India in Council from the judgment and decree of the District Judge of Ganjam, by which, it Was declared that the Government are not entitled to levy any water-cess from the plaintiffs for having cultivated their lands with the waters of the Vamsadhara river and the Mobagam channel. The plaintiffs are the inamdars of the village of Varahanarasimhapuram paying a quit-rent to the Zamindar. Their case is that the lands iu their village were irrigated by the Mobagam channel which convoyed water to their lands from the Vamsadhara river. They alleged that they have been cultivating their lands from time immemorial with this water and that the Government have illegally collected from them since 1894 water-cess under Act VII of 1865 for the water from this channel used for converting dry lands into wet and for raising second wet crops on lands which were already under wet cultivation. They therefore prayed for a declaration of their title alleged and an injunction to enforce such declaration, and also for the recovery of the amount illegally collected from them. The Government pleaded that the Vamsadhara river is a Government source of irrigation and that the Mobagam channel is the property of Government. They also pleaded that a right to the free use of water supplied from a Government source cannot be acquired by immemorial user bill; can be acquired only by virtue of an engagement with Government and that there was no such engagement with the plaintiffs. The defendant also pleaded that the payments made by the plaintiffs were voluntary and not therefore recoverable and that the suit was barred by limitation. The District Judge held that the payments were not voluntary and there was no limitation bar; on the merits, he held that the plaintiffs have failed to prove that the Mobagam ^channel was constructed by their ancestors as alleged by them; and that before 1803 it was the property of Government but that in 1803, when the Urlam estate was granted to the predecessor-in-title of the present Zamindar, the Mobagam channel was also granted to him. As to the Vamsadhara river he found that the Government had failed to prove that it was tidal and navigable, and he was further of opinion that, even if it was a tidal and navigable river that would make no difference with reference to the claims advanced by the plaintiffs. On the questions of law which were raised, he held that the plaintiffs were only entitled to claim any rights relating to the irrigation of the lands which were recognized by the title-deeds and according to them their right to irrigation must be limited to a single wet crop on the wet lands. He also held that, even if the plaintiffs had acquired a prescriptive right to the use of water as against Government, this would only debar the Government from interfering with the supply of water but would not affect the right of Government to charge water-rate for wet crops, as he was of opinion that such right is only limited by any engagement with Government under Act YII of 1865, and the title-deed showed no such engagement in this case. However, on the finding that neither the Vamsadhara river nor the Mobagam channel was a Government source of supply he decreed the plaintiffs' claim. Against this decree the Secretary of State appeals.
8. The appeal was first argued before Munko, J., and myself by the then Advocate-General, Mr. Sivaswami Ayyar. The questions of law in this case were argued before me and Abdur Rahim, J., in another Second Appeal by Advocate-General Mr. Napier and finally the appeal was again re-heard by Miller, J., and myself when the Advocate-General Mr. Rosario argued the case on behalf of the appellant.
9. As to the voluntary nature of the payment, I cannot help expressing my regret that the Government ever put forward the plea that the plaintiffs are not entitled to recover the amount paid-by thorn and which would have been collected from them by the Revenue Officials by coercive processes if they had not '.paid, even if they establish their title alleged by them and the illegality of the demand on the ground that it was a voluntary payment. It was given up in this Court as the question , had been decided in. Kanduhuri Mahal akshmamma Gam, Proprietor Urlam v. the Secretary of State for India (1911) I.L.R. 34 Mad. 295, following Sriman Madhabushi Achamma v. Gopisetti Narayanaswamy Naidu (1910) I.L.R. 33 Mad. 171. I also hold that the suit is not barred by limitation. I now proceed to consider the main question.
10. The facts found by the District Judge were scarcely disputed in appeal by the Advocate-General on either occasion, and as to the questions of law reliance was placed upon a decision of this Court in Kanduluri Mahalahshmamma Garu, Proprietor Urlam v. the Secretary of State for India (1911) I.L.R. 34 Mad. 295. The suit out of which that appeal arose was also tried by the same District Judge. It had reference to the claims of certain proprietors to irrigate lands from the same river and channel, i.e., the Vamsadhara and the Mobagam, and if the conclusion therein arrived at is right, it is conceded that this judgment under appeal cannot be supported. As no further arguments were adduced on behalf of the Crown in support of those conclusions than those contained in that judgment, I shall state briefly the grounds of decision in that case. The learned Judges therein pointed out that under Section 2 of Act III of 1905, subject to easement and natural and customary rights of landholders, all standing and flowing waters which are not the property of any one else are the property of Government. Vamsadhara river being undoubtedly a natural stream and the waters of that river in their opinion not belonging to any one else, it followed that the body of water forming the river is the property of Government and from that it followed that the river itself belongs to the Government.
11. They found on the evidence, agreeing with the District Judge on this point, that when the estate was granted to "the predecessor-in-title of the present Urlam zamindar the beds of the channels were not reserved by Government but passed with the lands to the proprietors to the same extent and in the same way as tank-beds, village sites and other poramboke lands passed; but the non-reservation of the beds did not show anything more than that Government fixed the revenue with reference to the extent of land then under cultivation and is no evidence of any agreement in any particular case to permit free irrigation from Government source of water-supply. They further found that the fact that there was no water-cess charged until the year 1901 is not evidence of a lost grant, as in this case before the Settlement in 1803 the Government had the fall rights of owner apart from the rights of ryots, if any, and the sannad itself does not give the inamdars any right to take water free of any cess; and as they were of opinion that the Government are entitled under Act VII of 1865 to charge water-cess if water is supplied from a river or channel belonging to Government and there is no engagement between the parties that the irrigation is to be free of a separate charge, they held that the Government were entitled to impose the cess.
12. It will thus be seen that in appeal the question was decided on grounds very different from those which were urged in the Court below ; and if we are now to reverse the decree of the Lower Court in favour of the Government and justify their action in imposing the assessment, it will be on grounds very different from those on which such assessment was 'imposed by the Government on the plaintiffs and by reason of an Act III of 1905, which was passed subsequent to the institution of the suit.
13. If the Acts III of 1905 and VII of 1865 enable the defendant to levy a water-cess when the water of a natural stream is used by a zamindar or other landed proprietor for irrigating his lands, in the absence of any engagement with Government to the contrary, then the facts that the Government had no such rights before, that the proprietor was entitled to use such water for irrigation without the leave of the Government, and that the Government promised not to levy any cess, unless such promise amounted to an engagement, would make no difference.
14. In order to decide the questions in issue it appears to me necessary to state the facts in some detail. Vamsadhara river rises in the Jeypore zamindari and after leaving the zamindari it flows through ryotwari lands for a very small portion of its course. It passess then through the Urlam zamindari, and the Mobagam channel takes off from its left bank in the village of Mobagam in the Urlam estate. It has a course of about 7 miles and passes through eight or nine villages. It irrigates about eleven villages. It has a total ayacut of about 4,000 acres, of which about 500 acres are ryotwajri lands. Four of the villages belong to the Urlam zamindar, and there are seven mam villages irrigated by this channel. Of these seven villages, Varahanarasimhapuram belonging to the plaintiffs is one. The plaintiffs' village as well as certain other villages, mainly ryotwari, are irrigated by channels which take off from the Mobagam channel. One of such channels is Merakabatti. It takes of from the Mobagam main channel within the limits of the plaintiffs' inam village and after partially irrigating it, enters the Government village of Madapam. This Merakabatti channel has no head sluice or regulator and its control, as well as the title of the Secretary of State in it, is found by the District Judge to begin only at the point where it enters ryotwari land, and the Judge finds that the Secretary of State has nothing to do with this channel from where it takes off from the main Mobagam channel to where it enters the ryotwari village of Madapam. This finding has not been attacked before us in appeal. Mobagam channel has a head sluice which was constructed in 1892 by the zamindar of Urlam, and the Judge finds that there is evidence to show that sums have been expended by the Urlam zamindari from time to time on the channel. He also finds that the Revenue officials never exercised any control over the distribution of water from the main channel and that no money has been expended towards its upkeep.
15. There is another channel, Lukulam, which also takes off from the left bank of the Vamsadhara river from what is now a ryotwari village. Its head sluice is under the control of the Government; the Lukulam channel and the four branches which take off from the Mobagam channel to which I have already referred also irrigate some of the same villages in addition to certain otters. This is the system of irrigation of the village The finding of the District Judge that the Mobagam channel was not constructed by the plaintiffs' ancestors was not disputed in argument before us. We must therefore take it that the Mobagam channel, when the village was granted to the predeces sor-in-titlo of the Urlam zamindar, belonged to the Government subject only to the claims of the ryots, if any. The lands through which the V amsadhara and the channels flowed after leaving the Jeypore zamindari also belonged to Government subject to the rights of the ryots. In 1803 the villages were constituted into throe or four zamindaris. Urlam, which includes the bed of the Vamsadhara river and the bank at the place where Mobagam channel has its head, was one of them, and one of the important questions for decision is what were the rights acquired by the zamindar and conferred by the Government.
16. It must be remembered that in 1802 and in the subsequent years sannads were granted to three classes of landholders Some of them were representatives of those who were really Ruling Princes. Within their small kingdoms they exercised all the powers of a ruler. They commanded armies, they made wars on their own account and concluded treaties and they had their own coins. As an instance, I refer to the Ramnad zamindar. See The Ramnad case (1901) I.L.R. 24 Mad. 295. Some of them like the Parlakimedi zamindar in. the district of Ganjam were the descendants of the ancient Hindu Sovereigns. As to this class of zamindars in the Oircars see Fifth Report, page 35,-Another class was composed of those who were chieftains under rulers exercising various degrees of authority. Some of them like the Telugu poligars of the south and the Hindu zamindars of the Teluga district were really viceroys who exercised the delegated powers of their sovereign in every respeoc. Others were originally only revenue officials or military commanders or police officers who usurped other functions. The history of this class of chieftains is given in the judgment of this High Court in Lehhamani v. Puchaya Naikar (1870) 6 M.H.C.R. 208, See also Privy Council judgment in Collector of Trichinopoly v. Lekkamani (1874) L.R. 1 I.A. 293 at. pp. 313 and 314. Besides these two classes of holders a new class of zamindars was created by the Bast India Company.
17. They carved zamindaris out of what were called Havelli lands in the (Jircars which were tinder their own control subject to the claims, if any, of the ryots. In the north of the presidency, they were parcelled out and sannads granted to persons who became the proprietors of those estates thenceforward. It is important to remember that, when these new estates were formed out of the Havolli lands, the purchasers of those estates, thenceforward the proprietors, were placed on the same footing as the other classes of holders, viz., the descendants of ancient chiefs and rulers who were already in possession of their own lands and to whom sannads were granted, with one exception in the case of rights to water which will be noticed later. (See paragraphs 58 and 60 of the instructions issued to Collectors as to Permanent Settlement of lands, pages 330, 331, volume II of the Fifth Report). They thus acquired by grant all the rights which the other two classes of the ancient rajas had before they obtained the sannad and the immunity from enhancement of land revenue or rent which they acquired under the sannad. The sannads were in the same terms.
18. What were those rights ? These ancient rajas exercised all the powers of a sovereign over their raj as well as proprietary right over some of the lands. They levied taxes; they received a share of the produce from those ryots who were bound to pay melvaram; they received the full rent of the lands when they were cultivated not by ryots but by tenants who had no ryotwari interest in the hmd. It was in this state of things that Regulation XXV of 1802 was passed and "Sannads-i-Milkeut Istimirar or deeds of permanent property," as they were called, were given to some of them. This Regulation has been fully discussed in' the judgment of the Judicial Committee in Collector of Trichinopoly v. Lekkamani (1874) L.R. 1 I.A. 293 at. pp. 313 and 314. In that case the Judicial Com-, mittee say," The only difference between a pollienf or zamindari which is permanently settled and one that is not, is. that, in the former, the Government is precluded for ever from raising the revenue ; and, in the latter, the Government may or may not have that power". See Collector of Trichinopoly v Lekkamani (1874) L.R. 1 I.A. 293 at. pp. 313 and 314. The policy of the East India Company's Government at that time was to take away from these chiefs or zamindars the rights which according to the western ideas should be exercised only by a ruling sovereign and to leave to them all such rights as could be exercised by a private proprietor. There were some claims which apparently did not fall clearly within the scope of the one or the other and they were dealt with by name. It was necessary that there should be no doubt on the question and great care was therefore taken to enumerate the rights which were till then exercised by the rajas and which should no longer be exercised by them. For instance, all salt and saltpetre revenue, duties of every description by sea or land, tax on liquor and intoxicating drugs, all taxes personal and professional, all taxes and lands for Police establishments were expressly excluded in the saimads. (See the fourth clause of Lord Clive's Permanent Sannads--appendix to the Standing Orders of the Board of Revenue, and Fifth Report, page 321.) Waste lands were especially referred to as having been granted to the zamindars. There were claims which were generally included in the name Sayar understood to refer to taxes generally. (See Fifth report, page 321, paragraphs 13, 14,15 and 16.) As already stated, it was not intended to deprive these rajas of any rights which they were at that time exercising as the proprietors of those lands. And looking to the items which were "by name resumed and the purpose of the regulation and the words in the permanent sannad, there is very little doubt that they were confirmed in the excise of those rights other than those which were enumerated, and in the cases of zamindars of Government creation those rights were granted to them unless- specially reserved. In my opinion, speaking generally, whenever the Government contend that these zamindars are not entitled to exercise any of the rights which are capable of private ownership and that such rights are vested in the Crown, it lies oh the Government to prove that such zamindars were deprived of them either expressly or by necessary implication under the sannads granted under that regulation the new zamindaris were intended to be placed on the same footing. The sannads to which I refer are those which were granted by Lord Clive, a copy of which will be found in the earlier editions of the Standing Orders of the Board of Revenue.
19. It now remains to consider how far these views may be acted upon in cases of water-supply. In considering what title to waters passed to those to whom sannads were granted, it is desirable to boar in mind all the different forms of water-supply for the cultivation of lands. Except on the western coast, throughout the Presidency the rainfall is moderate and insufficient for the satisfactory production of rice, the crop which is most abundantly cultivated, so that the country depended a good deal upon the supply of water otherwise than by rain. In many districts there were tanks for the conservation of water which depended for their supply mainly on the rains. They even now exist in vast numbers throughout the Presidency for the irrigation of lands. Most, if not all, of them are of old native construction though some few of them have been kept under repair by the British Government. It can scarcely be suggested that, where those tanks are situated in zamindari lands, it was not the intention of Government entirely to part with their control to the zamiridars. There were also groups of rain-fed tanks connected with each other for cultivation by means of channels. There is very little doubt that in their case also, whenever this group of tanks was situated in a zamindari, the control completely passed over to the zamindars. Some of these tanks are large reservoirs which contain a good deal of water, and the supply of water therefrom can be safely relied upon after the monsoon had commenced. The water supply, however, of a great number of these tanks is very precarious, and the-cultivation often suffers from water not being sufficiently supplied and does not attain the general standard which it secured from other sources. Greater dependence is placed therefore upon tanks supplied by river-water, Many tanks are supplied not only by the rains but by the high freshes of rivers by means of channels unconnected with any dams. But in the majority of cases the level of the river is lower than that of the adjoining fields and it is usual to put' up an anicut or masonry dam right across the river bed in order to store water and raise its level. Generally, except in the cases under Government supervision, the dam consists of a row of granite posts of the necessary height, with the interstices filled with turf earth--often a wall with the same materials being put in front of the posts, which is washed away during the monsoons leaving the posts alone standing. The water whose level is thus raised passes into the channels. From these channels water, is taken or distributed for cultivation. It is also stored in reservoirs and rendered available for purposes of irrigation often by channels from those reservoirs. The area of land that can thus be irrigated according to the-customary methods is called the ayacut of the river, a well-known revenue term which is thus denned in the Standing Orders 1820--1865 of the Board of Revenue: "Ayacut.--The total area of land in a village ; when applied to irrigation estimates, it means the land that can be watered by the tank or channel referred to." Garden land is often, if not generally, cultivated with water by cattle-power or manual power. With reference to the channels conveying waters from the river for irrigation and river-fed tanks, it cannot be denied that the ancient chiefs who afterwards became zamindars under sannads were exercising every form of control subject only to the claims of the ryots, if any. The central power seldom interfered with such exercise of control. Even when the Muhammadan rulers considered that such an interference was necessary, it was done by depriving the old chiefs and mirasidars of those rights and transferring them to their Governors and other officials who took their place who were also constituted zamindars by the East India Company. Agriculture and the wealth of the country depended upon the water-supply, and it was scarcely likely that they ever meddled with it. After the grant of permanent sannads the supply of river-water continued to be as necessary as before, for the cultivation of those lands which depended upon river-fed channels and tanks. There is nothing to indicate that the Government ever desired to interfere with what was believed to be the ancient usage. Everything tends-to show that the zamindars and the ryots were allowed to exercise rights of ownership and to use the river water as before. When the sharing system prevailed it is possible that a Melvaramdar or Government did not take the trouble to ensure the necessary supply of water. But a Permanent Settlement with peshcush or cash payment to the Government pre-supposes the continuance of the usual water-supply. If the lands did not receive it, Government could not have expected tb e zamindar to pay. The twelfth clause of the sannads contemplates engagements by the zamindars with the ryots, Such engagements for payments of rent show that the zamindari ryots were entitled to get the required supply. See also paragraph 37 of the Fifth Report, page 326. The zamindars and the ryots therefore must have continued to receive the supply. It is obvious that in the zamindaris the Government did not undertake to, and did not, supply water. The landholders therefore must have continued to take the water as before for irrigation from the rivers. There is absolutely nothing in the volumes of papers relating to the revenue settlements to show that there was any restriction placed upon them in using the waters of the rivers or exercising any right as before, assuming that it was open to the Government to restrict it. The presumption is that they allowed it. The Government contemplated the cultivation of the waste lands--see page 324, paragraph 27, Fifth Report. That is unlikely unless the right to take waters from the rivers was conceded. Any increase of revenue due to such increased cultivation was certainly not contemplated any more than if such cultivation had been carried on by water from wells or tanks constructed at the expense of the zamindar. If such an increase is claimed on account of the right of Government to take a share, it could be claimed quite as well in the one case as in the other. We see in the ryotwari district the Government actually taking a share of the produce when waste lands are brought under cultivation.
20. The Regulation and the sannads granted thereunder make it quite clear that the object was to give security to property; there is no security if at the pleasure of Government any assessment not regulated by law, not under the control of the Courts, may be imposed for the use of what is a necessity for cultivation. The sannads declare that the assessment on the zamindari lands should u never be liable to change under any circumstances." An unlimited power to tax a commodity indispensable for cultivation is undoubtedly against this solemn assurance.
21. I now refer to the one difference which was recognised in the case of Havelli lands which places this question in my opinion beyond all reasonable doubt. I stated in a previous part of the judgment that besides granting these permanent sannads to the ancient chiefs the Government also came to the resolution of transferring the property which was at their disposal like the Havelli lairds in the north, For that, purpose, they had to divide the Havelli lands into various lots, such division being made with reference to the facilities of water-supply. In the case of these lands, unlike the case of ancient zamindaris, the tanks and the water courses belonged to the Government. It was open to them to transfer them to the new zamindars or to retain the control in their own hands; it was however distinctly stated then that the construction and repair of tanks and water courses were to be left to the zamindars except in those cases where there may be works of great general importance to the country or too extensive to be entrusted to the charge of individual proprietors or where there may be other reasons to make it advisable for Government to reserve to themselves the right or duty of looking after these water sources. See page 331, paragraph 59 of the Fifth Report. It will be noticed that the Government evidently did not consider it necessary to point out that in the case of ancient chiefs they proposed to transfer such rights or obligations to them or to reserve any control to themselves as obviously such right of control was not with the Government and the zamindars were entitled to it. In the case of these zamindaris formed out of Havelli lands, therefore, there may be cases in which the Government reserved control of the water courses, but that has to be made out by Government j where the Government do not prove that any such control was reserved there is nothing to distinguish the case of these new zamindaris from that of the old--see paragraph 60, Fifth Report, page 331. This appears to me to be decisive of the question in the case of old zamindaris as well as in the case of the zamindaris formed out of these Havelli lands. The water courses are generally of no use without the supply of water from the river.
22. If we look at the usage and practice that prevailed, it also tends to the same conclusion. In no estate from the time the permanent sannad was granted up to 1865 when the Cess Act was passed is it the fact that the Government ever increased the land revenue--there was no law entitling them to claim a charge otherwise--on account of water being taken from any natural stream, or imposed any separate charge from the zamindars for taking water from the rivers themselves.
23. In the ryotwari districts, if a ryot used water from the river for other than the usual cultivation, they levied an enhanced revenue. If a second crop was raised with additional water, there was a second crop assessment. If a well was sunk within the ayacut of a river and cultivation carried on with the water of that well, it was usual even for years after the passing of Act VII of 1865 to impose additional revenue on the ground that he had had the benefit of the river water. In the case of the zamindaris no such demands have ever been made. I am not aware that in cases of ancient zamindaris any head sluice has ever been retained under Government control. Whenever the Government wished to interfere with any such sluice for the benefit of their own lands, it was, as in the Vaigai case--Ponnusawmi Tevar v. Collector of Madura (1869) 5 M.H.C.R. 6--with the consent of the proprietor. Most of these zamindaris were at some time or other under the Court of Wards. The Court of Wards, so far as I know, never recognized such a claim on behalf of Government. The decisions till within the last few years assumed and, where necessary, held that where there is no limitation in the grant itself the proprietor was entitled to unlimited water-supply. Secretary of State for India in Council v. Perumal Pillai (1901) I.L.R. 24 Mad. 279 at p. 283.
24. I now come to the change in the law introduced by Act VII of 1865. In 1802 and for some years afterwards, it was not the policy of the British Government to embark upon any irrigation projects. The irrigation works of the Oauveri river and of the Godavari and the Kistna rivers in the Godavari and Kistna districts were completed before 1855, when the general survey and settlement of the Presidency was undertaken. They entailed an enormous expenditure and the Government looked to increased revenue to recoup them. So far as the ryotwari lands were concerned, they could get over the difficulty by increasing the land revenue on those lands which profited by these irrigation works, and it appears that, when lands were permanently irrigated from such sources, a consolidated assessment was imposed leaving it to the ryot to occupy or throw up that land. If only a temporary use of such water was made, a water-rate was added to the dry land rate and the aggregate formed the revenue demand.
25. In the case of zamindaris and inams to which water was supplied, it was open to the Government to impose conditions before supplying them with water. But the Secretary of State suggested for the consideration of the Madras Government, in considering their proposals for a general survey and settlement, whether a separate water-rate might not be charged when water*' from these sources was used or was permanently available so that the profits derived on account of these irrigation works could he ascertained. At that time British Government hoped to attract British capital and enterprise to India in the construction of irrigation works as in Railway undertakings. The Madras Irrigation company started in 1858 was the result of this policy. It was given up only some years after the passing of Act VII of 1865. If British capital was to be attracted to India it was necessary to recognize the principle of a separate charge to be levied for water supplied in order to realize this. If therefore water-cess was to be imposed and levied separately from laud revenue, legislation was necessary to recover it in the same way. I have referred in some detail to the proceedings which led to the passing of Act VII of 1865 in my judgment in Kapileswaraupram Zamindar v. Secretary of State (1914) I.L.R. 37 Mad. 355. They show in my opinion beyond all doubt that the object the Government had in view was to obtain a return for the cost incurred by the Government and not to realize increased revenue where none was incurred and where the ryots and the zamindars were only utilizing such facilities of irrigation as existed before. This return was to be obtained out of the increased profits which would naturally be derived by the ryots. They show further that when the Government interfered with any pre-existing source of water-supply, they supplied water free of charge from Government sources. See in particular G.O. No. 101, Revenue, dated 16th January 1864 and G.O. No. 986, Revenue, dated 11th May 1865, which contain "the drafts of a bill and of rules for the levy of a water-cess in localities where the Government may see fit to adopt that mode of realizing the revenue from works of irrigation in preference to levying a consolidated assessment."
26. The preamble of Act .VII of 1865 points out that "large expenditure out of Government funds has been and is still being incurred in the construction and improvement of irrigation and drainage to the great advantage of the country and of proprietors and tenants of the land," and then states that "it is right and proper that a fit return should be made to the Government on account of the increased profits derivable from the lands irrigated by such works." So far the preamble makes it quite clear that under the Act -what was intended was that there must be works of irrigation or drainage constructed or improved by the Government and that there should be increased profits derivable from lands irrigated by such works. There was no idea that, whore water was taken as before by a zamindar or ryot without having recourse to any such works, any revenue was to be imposed. Then Section (1) empowers the Government to levy a cess in certain cases; under Section 1 of Act VII of 1865 it is a neceasary condition that the "water is supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to or constructed by Government." The question for decision is whether these words "river, stream belonging to Government" apply to natural streams like Vamsadhara. A "river" is composed of bed, banks and water-- "Angoll," pages 8 to 5 ; "Farnham," volume II, pages 1462, 1557. The bed of the river is the part between the banks. The banks are the elevations of land which confine the water to a definite course, lie is therefore the owner of the river who owns the beds, the banks and the water. It follows therefore that in zamindaris where the zamindars own the beds and banks of rivers, as in -leypore and Urlam, they cannot be called " rivers belonging to Government." It has been contended that" all tidal and navigable rivers, and they only, belong to Government. I do not think so, as such an interpretation will exempt from the operation of the Act many natural streams to which the Act is evidently intended to apply and also, as the Judge points out, hitherto no difference has been recognised so far as irrigation rights are concerned between tidal and navigable rivers and others. The English law when the Act was passed was laid down in Embrey v. Owen (1851) 6 Exch. Rep. 353 at p. 369. "Flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that, it is public and common in this sense only, that all may reasonably use it who have a right of access to it, that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of possession only....But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it." It is possible that the words " river, stream belonging to Government" were used in the section to indicate only this kind of ownership. I am satisfied it certainly includes that right. The river therefore may be said to belong to Government when they have got the proprietary interest in the bed or adjacent land which gives them access to it and power to exclude others. This reason limits the ownership to the part of the stream adjacent to the land and excludes therefore rivers and streams in zamindaris and inams or adjacent to them. Bat I think the section includes other claims as well. The riparian right above referred to depends upon vicinage and consequent right of access. This power does not generally vest in the Government or zamindars. It vests often, perhaps' generally, in the ryots, Moreover this riparian right will not entitle Government or zamindar to use the water for the cultivation of tenements not in the vicinity while it is undoubted that they have been doing so from time immemorial. The customary law of the country may throw some light.
27. So far as the old customary law in the Madras Presidency is concerned, the question appears to be clear. In the deeds of conveyance before the days of British rule and in conveyances executed even afterwards, at least in the early years 01 the century, by mirasidars and landed proprietors like zamindars, inamdars, etc., which have come before the Courts it is generally stated that the lands are conveyed with the eight incidents of ownership;
" The eight incidents of ownership in land are stated in the following verse:
1 2 3 4 5 6 Nidhi nicshepa pashanam siddha sddhya jaldnwitam 7 8 Acshiny' agami' sarnyuctam ash'ta'bhogS samanwitam.
1. Treasure trove. 2. Property deposited in the land not claimed by another. 3. Mountains, rocks and their contents, mines, minerals, fyc. 4. All land, &c, yielding produce 5. All produce from such laud, etc. 6. Rivers, tanks, wells and all other waters. 7. All privileges actually enjoyed. 8. All privileges which may he conferred; these are expressed by the general terms Ashtabhogam.; the eight rights enjoyed by the owner of land." See Mirasi papers, page 206. These papers were compiled and the translation mado by Mr. Bayley, who was a member of the Board of Revenue, and they were finally corrected by Mr. W. Hudleston, secretary. It will be noticed that the conveyance carries with it " Jalam," i.e., " rivers, tanks, wells and all other waters." These rights were possessed by mirasidars and other proprietors of land. The deeds, printed in Mr. Hudleston's Mirasi papers were executed by the mirasidars. The various water sources are therein mentioned in some deeds separably and also under a general term. Where the landed proprietors known by different names like mirasidars and others in different districts were dispossessed of their ancient rights by Hindu and Muhammadan Chiefs and Governors, such rights were vested in these latter. But when lands were granted to favourites, etc., by rulers, these rights were conferred upon them. In a case reported after this case was heard, a grantin 1768 by the Tanjore Eajah under which the properties were held till recently was produced containing the same words ;w Total of 60 velies of land including wet and dry lands, water, trees, stones, Nidhi, Nicshepa (Treasure), Sid aha, Sadhya (whatever is and may be brought into existence) present and future patta all banb and all Kana with all Samudanavw with water poured from the hand." See Jeeyamba Bai v. The Secretary of State for India (1912) 12 M.L.T. 541 at pp. 542-543.
28. The right to water was therefore treated as a proprietary right and ownership in it was recognised as in land, treasure trove, etc.
29. The ownership ceased when the water left the land. There is no reason to think this rule was discarded. The right which the proprietor has to 'use the water for agriculture is obviously not the right of easement as there is no dominant or servient tenement. Nor is it, as already pointed out, the natural right of a riparian proprietor. Both the Government and the zamindar claim and concede in this case the right of landholders, in no way riparian proprietors, to the use of river water. The right claimed by Government is not to prevent the zamindar from using such water but to impose a water-cess, even if be is entitled to use it for irrigation and this is the right upheld by the District Judge.
30. In the ryotwari districts, villages which are not adjacent to the natural stream use river water for irrigation. The right to prohibit such use has never been recognised.
31. If I am right in my view of the customary law of the country that the proprietor of the land is the owner of the water thereon, then those rivers or streams of which they own the bed and the banks on either side belong to Government. Except on the west coast where the cultivation is dependent up6n the rains, not river water supplied by Government, and in those few and dwindling places in the eastern districts where the mirasi right is recognised, the Government have asserted their claim to all waste and poramboke which include river bed and the banks j and any channel therefore could be constructed only by Government or with their leave. I have therefore little doubt that the Legislature, which only carried out the behests of the Executive Government, intended this section to refer to all rivers and streams in those ryotwari districts where no mirasi or any corresponding right prevailed. For the same reason, it did not apply to rivers running through or by zamindaris.
32. Further, if the words " rivers belonging to Government" apply to zamindaris, it will be open to Government to impose water-cess on zamindari lands in the exercise of their natural rights for irrigating their lands with river water as before the permanent settlement. This is clearly against the Regulation of 1802 and, as the amount of the water-cess is not open to discussion in the Civil Courts, practically repeals the Regulation and cancels the gannads in this respect and involves such gross breach of faith that the Courts should not, if possible, adopt a construction which will have that effect. But to escape from this consequence, reliance is placed on behalf of Government on the exemption clause. It runs thus: " where a zamindar or inamdar by virtue of engagements with the Government is entitled to irrigation free of separate charge, no cess under this Act shall be imposed for water supplied to the extent of such right and no more". It will be noticed that under Section (1) the water cess may be imposed when water is supplied or used, but the exemption applies only to cases where water is supplied, s of course, by Government. These terms have been explained in ' Venkatappayya v. The Collector of Kistna (1889) I.L.R. 12 Mad. 407, followed in Krishnayya v. Secretary of State for India (1896) I.L.R. 19 Mad. 24, and since the amendment of the Act in 1900 on account of those decisions retained ' this word as before, the judicial interpretation may be taken to have received legislative sanction. This exemption therefore does not apply to those zamindars and proprietors who themselves take and are entitled to take the water for irrigation from the rivers and streams in their zamindaris without its being "supplied" to them by Government. In their oases you cannot imply a demand.
33. Moreover, if we are to presume an engagement to "supply'' water by reason of the grant of permanent Sannad then the Government are bound to supply the zamindars with water, but such is clearly not the case. I am therefore unable to accept this argument. It is only advanced to meet the untenable position in which the Government find themselves in asserting that a river like the Vamsadharais a Government source of irrigation for zamindaris. That the exemption clause does not apply is conclusive to show that the section itself does not apply to such rivers.
34. If however the word " supplied " only means "used " and the section, with the exemption clause applies, I am clearly of opinion that the " engagement " to be implied is one to allow the proprietors to irrigate all their lands which could be irrigated, i.-e., all those comprised in the ayacut, without any fee and without any charge. There is nothing to suggest in any Government papers that the unqualified power which the old zamindars had to cultivate waste lands with river water was taken away and such right was confined to the cultivation of those lands then under wet cultivation. The usage till 1865 tends to the same conclusion. The object of Act VII of 1865 was only to collect ' a cess for water supplied from Government works. Further to hold that the " engagement" was to allow water for the cultivation of lands then under wet cultivation is to ignore the history of the permanent settlement. In some cases a comparatively small peshcush alone was fixed as a pledge of submission to Government without any reference to assets--Ami, for instance, a jaghir of ancient days. It was a complaint of the Famine Commission in 1880 that, receiving substantial benefit from Government works, the proprietor declined to contribute and could not be compelled by law to pay any cess. See Madras section of the Report, page 164, Section 61. In a few others the peshcush was simply an equivalent for the military services formerly rendered by them without any reference to their assets. The great zamindaris of Venkatagiri, Kalahasti and Karvetnagar are among these. Their peshcush was a proportion of the cost of the zamindar's military establishment inclusive of amarama and kattubadis less the revenue from salt, abkari dues, etc. Some were settled without any enquiry into their resources. Sivaganga is one of the most important of them. A few of these estates, when they passed under British rule, had to pay a certain proportion of what they were paying to the old Rulers-- Kangundi for instance.
35. In all these instances the obvious intention of Government was to leave it to the zamindar to exercise all the proprietary rights as before. The extent of wet cultivation or the assets hadnothing to do with the peshcush. The conditions under which the peshcush was imposed rebut any other presumption.
36. In the district of Ganjam, with which we are now immediately concerned, no proportion of the jamma was adopted, but the peshcush was in each case in point of fact fixed by the Board of Revenue at their discretion on a consideration of all the circumstances and accounts before them.
37. When the Act was passed the Government had these facts before them, because about that time another important operation to afford security of title was going on--the enfranchisement of mains. The Inam Commissioner, the Board and Government had to consider the circumstances under which every estate was held to decide whether they had the right to the reversion and therefore to enfranchise the inams therein. It also appeared at that time that the accounts on which the settlements of some zamindaris like Ramnad may have been based were lost in the Government offices. How is it possible in all these various cases to assume that the word "engagement" in the exemption clause in Section 1 of Act VII of 1865 had reference to the "wet land" at the time of the permanent settlement when it had either nothing to do with asset8 or it was not possible to find out whether it was so. In some of the important zamindaris like Pittapuram the peshcush was fixed on certain accounts taken by the circuit committee between 1776 and 1788, Are we to ignore the very probable increase in cultivation between 1786 and the Sannad ? It seems to me to raise a strong presumption that the extent of wet cultivation was not the determining factor. In those other cases, where the peshcush was a proportion of the fixed assets, it was the average of certain years before the permanent settlement that was adopted. Is it then seriously contended on behalf of the Crown that a zamindar like Urlam was entitled to cultivate wet land to the average extent but must pay cess if he cultivates lands of the larger extent cultivated in the other years ? No zamindari was then surveyed. The wet area was never localized. If the zamindar is now made to pay cess for the excess area, he cannot now localize the area, if any, then under cultivation so as to demand their contribution from the tenants of the excess area; and where the wet area, if any, adopted as the basis of the settlement is less than the actual extent of wet cultivation before the settlement, as it well might happen on account of the average area haying been adopted, it would be impossible for the zamindar to localize the wet area. I am therefore unable to accept the view that the zamindar was entitled to cultivate only the mamool wet free.
38. I am therefore of opinion that under the Act as it stood unaffected by the subsequent legislation (Act III of 1905 to which I shall presently refer) it was not competent to the Government to levy any cess for any water taken from the Vamsadhara river, of course, without the aid of Government works. I make this reservation to exclude Lakulum with reference to which I express no opinion.
39. We have now to consider the plaintiffs' position as inamdars. The village was granted to their predecessors-in-title in 1764 by the zamindar of Parlakimidi. When the Havelli lands along with this village were granted under a deed of permanent Sannad to the predecessors-in-title of Urlam, the quit-rent was included in the assets. The Sannad is not before me but if the general practice was adhered to the reversion was in the Government, and accordingly the Crown enfranchised the inam afterwards. As I have pointed out already, the evidence is not clear as to the circumstances under which the Mobagam channel was constructed; but as it was in the Havelli land at the time of the permanent settlement it may be presumed to have belonged to Government. The inamdar was undoubtedly irrigating his -lands from the Mobagam channel at that time as it was his source of irrigation. The general policy of the Indian Governments was against any restriction on irrigation as they shared in any increase in produce. There is no reason to suppose that" this inamdar was entitled to use only a certain quantity of water or to irrigate only a certain extent of land. Innes, J., rightly states the principle applicable to such cases: " where a channel has been constructed by Government acting as the agent of the community to increase the well being of the country by extending the benefit of irrigation and in pursuance of that purpose a flow of-water is directed to the villages designed to be benefited, it becomes simply a question upon the circumstances of the case whether there has not been a conveyance to such villages in perpetuity of a right to the unobstructed flow of water by the channel. Looking at the permanency of such works and to the permanency attaching to the object, that there was a transfer in perpetuity would seem an almost necessary conclusion, unless there were other circumstances to lead to one of an opposite character. It might of course be capable of being shown that the privilege was granted as a mere license and that before the water was allowed to flow to the villages, it Lad been left open to Government by arrangements then made to obstruct the flow' a\t will at any future period "--Ponnuaswmi Tevar v. Collector of Madura (1869) 5 M.H.C.R. 6 at p. 29. Any arrangement between the zamindar and Government at the permanent settlement cannot prejudicially affect him. After the enfranchisement, it is said that he is, only entitled to irrigate the land then declared " wet." But we cannot imply an engagement between the Government and the inamdar, as the ,Mobagam channel and the Merakabatti channel which takes water from it to irrigate the inam are not under Government control and they cannot control the distribution of water therefrom. The fact that the Government has control over the Merakabatti channel only after it leaves the inam is significant. Moreover there is nothing in the title-deeds or proceedings to show that the inamdar is only entitled to cultivate with channel water those lands entered as wet free of charge and that even those lands are entitled to exemption only for the first crop. Neither in the despatch from the Government of Madras to the Secretary of State, Revenue, dated 9th August 1859, with the enclosures thereto giving full information of the intended proceedings to enfranchise inams, nor in the final report of Mr. Blair on the operations of the commission, dated 3Qth October 1869, the proceedings of the Madras Government and the dispatch of the Secretary of State thereon, dated 10th August 1871, nor in the mass of records relating to the enfranchisement of inams, is there any indication that it was the intention of Government to advance any claim on account of any excess cultivation or that the inamdar's right was confined to the wet area mentioned in the title-deeds. If it was so, the Government could very easily prove it without asking the Courts to upset a practice upon theories. The available records support the contrary conclusion; when water was supplied from Government anicut works, no cess was levied on the mamool wet presumed to have been under wet cultivation at the time of the permanent settlement or the enfranchisement of the inams, but cess was levied on water taken for the irrigation of the rest. That the claim was so restricted to water from Government works is not without significance. The copies of the inam title-deeds show tha the inam is only " claimed to be of acres of dry land and acres of wet land." All information had to be given in the registers as the assessment was fixed at the discretion of Government; not inference can be drawn therefore that any fact therein mentioned was the basis of any contract. In asking the Government to cancel their order that inams limited to a limited number of lives should not be interfered with, the Inam Commissioner said "It is superfluous to add that in all such settlements every care is taken that the interests of Government do not suffer. A fair addition is made to the present value of the village on account of the prospective improvement from the cultivation of waste lands."
40. The Government accordingly cancelled their Order No, 945, Revenue, dated 3rd June 1£64. This seems decisive. 'See also the Commissioner's order quoted in my judgment in Secretary of State v. Amnbalavana Pandara Sannadhi (1914) I.L.R. 37 Mad. 369.
41. Further the inamdar as such is only entitled to Government revenue. The title-deeds have been declared by legislation not to interfere with the mirasidars or ryots. Any engagement would probably have been with them. I am therefore of opinion that in each case it is for the Government to prove that the right of cultivation is limited as alleged by them; otherwise the so-called engagement will be taken to be in accordance with usage or with the conclusion arrived at by Innes, J., already referred to.
42. After the passing of the Act, the practice continued the same as before, the Government claiming a cess only when water was taken from Government works. The first note of dissatisfaction was that of the Famine Commission in the report presented by them to the houses of Parliament in July 1880. They pointed out what they deemed to be an abuse, that the zamindari lands, which on the introduction of canal irrigation were in the enjoyment of any means of irrigation however inferior and precarious, were supplied with canal water without any additional charge, with the consequence that the zamindar gets a continuous and unlimited supply for the whole of the area he had ever brought under cultivation. They thought there is no reason why this benefit should be conferred. The Government supplied this water in consequence of their having interfered with the zamindar's channels. Many of these channels supplied him with river water. His right to irrigate with such water was thus assumed. From this time began the efforts ever since continuously maintained to carry out the above suggestion. Among the suggestions were that the proprietors should be required to prove with reference to every field that it was being fully irrigated to entitle them to claim Government canal water; that they must prove what extent they were cultivating according to the permanent settlement accounts, which were in Government custody and which they are not bound to produce and which the Government condemned as inaccurate when they were against their contention; see. G.O. No. 844, Revenue, dated 18th September 1902. An Irrigation and Navigation Bill was introduced in 1884 (No. I of 1884) which assumed the law as I have stated it. The local officers continued the old practice. In 1886 the Collector stated the usage correctly when he directed his Assistant Collector that no cess should be levied for water taken from rivers by lifts or by channels dug and repaired by private proprietors (Exhibit XIV). In 1889-90 there was an inquiry, and the Revenue Board came to the conclusion that, as nothing was spent on the channel by Government, the Government had nothing to do with the regulation or distribution of water in the Mobagam channel--Board's Proceedings No. 3014, Miscellaneous, dated 29th July 1890. That this was the opinion entertained till then appears also from the records andthe judgment in the Full Bench Case decided by the Chief Justice Munro, J., and myself. The question is not whether these orders or opinions are binding on the Government but whether they do not supply strong evidence of the usage till then prevailing.
43. I may now refer to the Urlam judgment--Kandukuri Mahalakshmamma Garu, Proprietrix of Urlam v. The Secretary of State for lndia (1911) I.L.R. 34 Mad. 295. It holds that, as the Government owned these lands before conversion into zamindaris, the sannads must expressly or by necessary implication convey the irrigation rights claimed; otherwise they must be taken to continue with the Crown. This is perhaps so in the case of ordinary Crown grants. But, as I have pointed out, these are sannads granted under a Regulation with a particular object and it was intended with one possible exception to place the new zamindaris in the same position, as the old zamindars who had full proprietorship before the grant. No distinction so far as I know has ever been recognized between tb.6 two classes. It is stated in the judgment that it was "not contended that the water is their property""--i.e., of those who own the banks of the river; and "it follows it is the property of the Government," but "water" is their absolute property for ordinary uses. It is limited property for extraordinary uses. It is further pointed out that as the water is Government property, the stream also is Government property and the explanation to Section 7, Basements Act, and M'Nab v. Bobertson (1897) A.C. 129 are referred to. The explanation throws no light on the question before us. It is intended to show that permanency or tidality is not an indispensable element. It says however there must be a " known course " which implied definite bed and banks. The case cited illustrates this. There a lessor let two ponds to a tenant " together with right to the water in the said ponds and in the streams leading thereto," and the question was whether the word "stream" was used in the ordinary sense of a rivulet or course of running water or any water which found its way into the pond even by percolation through marshy ground. The majority of* the Lords held in favour of the former view. The decision had nothing to do with the question before us. The word " stream " no doubt is also used to indicate water in motion. But this use is exceptional. Lord Halsbury who took this view says it ordinarily means definite stream within definite banks. In Act VII of 1865 it is used after the word "river " to mean a little "river" if it means anything else it has no bearing on the case as Vamsadhara is a "river" and not a stream. It is assumed in the judgment that the assessment was fixed with reference to the extent of land under irrigation at the time, not with a view to any possible extension of cultivation; as a general proposition applicable to all zamindars and inamdars, this is obviously incorrect as I have already shown. The Permanent Settlement accounts are with the Government. They seek to alter the existing practice. It is for them therefore to prove that the assessment was so fixed. '"I seriously doubt whether the Government will be able to prove it, as my experience is that, where the assessment was based on the assets, it was the average demand and the average collection for a series of years that formed the main element in the consideration of the question. No Court is justified in raising a "presumption or proposing a theory to upset a usage that has prevailed for a long time. The proper function of a theory is to explain or to find a legal origin for a long-standing practice; it should not be used to get rid of it and to unsettle the claims which have long been deemed to be well established. This must be done, if at all, by legislation. The pleader in that case appears to have given up the ground on which the District Judge based his judgment that Mobagam channel was the source of water-supply. For these reasons, I am unable to follow that decision on these points.
44. It is contended, and the Urlam judgment decides, that under Act III of 1905 all flowing waters which are not the property of any one else are the property of Government and therefore the waters in the Vamsadhara river and consequently the river itself belong to Government. I am clearly of opinion' that if under Act VII of 18G5, as it stood before this Act III of 1905, the Government were not entitled to impose any water-cess, this Act coupled with the other Act does not give them the right to do so. Act III of 1905 was passed to prevent encroachments on Government property, and it is not permissible to construe the water-cess Act in the light of the provisions of this later Act unless there is some special provision to that effect. In Nairn v. St. Andrews University (1909) A.C. 147 at p. 161, the House of Lords decided that such a construction is not justifiable; under an Act of 1868 the right to vote was given to "persons" which prima facie would include women; but it was held on account of the usage that had prevailed till then that the Act confined the franchise only to men; the argument was that a later Act of 1899 taken with the Act of 1868 had the effect of conferring the franchise upon women too. With reference to this argument the Lord Chancellor stated " It proceeds upon the supposition that the word ' person' in the Act of 1868 did include women, though not then giving them the vote, so that at some later date an Act purporting to deal only with education might enable commissioners to admit them to the degree, and thereby also indirectly confer upon them' the franchise. It would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process. It is a dangerous assumption to suppose that the Legislature foresees every possible result that may ensue from the unguarded use of a single word, or that the, language used in, statutes is so precisely accurate that you can pick out from various Acts this and that expression and, skilfully piecing them together, lay a safe foun elation for some remote inference. Your Lordships are aware that from early times Courts of law have been continuously obliged, in endeavouring loyally to carry out the intentions of Parliament, to observe a series of familiar precautions for interpreting statutes, so imperfect and obscure as they often are." It also appears to me that the words of the Act III of 1905 do not support the contentions. It only declares that the water is Government property; but the river does not thereby become so. Again if the water or the river must be considered Government property always by the provisions of that Act, there is no reason why we should go back only to the Act of 1865 and not to the Regulation of 1802. It appears to be clear that the Government must have conveyed all their rights including the water and the river within the boundaries of the properties in the sannad. Such a construction was not till now adopted as the Government did not own them. Further the Act preserves natural rights and rights by easement. There is no natural right to appropriate and consume entirely or to some extent another's property. The proper construction therefore to be adopted is that, in so far as the riparian proprietor has any property in water or any person has any customary right, it is not Government property. Any other construction would enable the Government to levy a cess when a person is exercising his natural rights and should not, therefore, be adopted. It will be an interference with the Permanent Settlement, Regulation and the Sannads. Moreover, if I am correct in my view, according to the customary law flowing water in a river belongs for certain purposes to the owner of the bed and banks ; and the act does not interfere with vested rights. For these reasons I disallow this contention.
45. As to the reported cases, Ponnusami Tevar v. Collector of Madura (1869) M.H.C.R. 6 shows that the zamindar was using the water of the Vaigai for other than riparian villages; that the Government got his consent to erect a sluice in the channel to convey water to ryotwari villages and the Government claim to interfere with the flow of water so far as the zamindar was concerned was not recognised, while it was recognised so far as ryotwari tenants were concerned.
46. I am unable to agree with some of the dicta in the Peranai dam case which deal with the right of Government to regulate the distribution of water in zamindaris. It is stated therein,--see Fischer v. The Secretary of State for India (1909) I.L.R. 32 Mad. 141 at p. 160-- "We are prepared to hold that the paramount right of Government under the law of this Presidency is independent of the ownership of the bed of the stream. We also think that no distinction can be drawn between cases where the interest said to be affected is that of ryotwari tenants and where the interest which is said to be affected is that of holders of proprietary estates." No authority is cited in favour of this proposition. It is really unsupported by any authority. The Government have, I believe, a right to regulate the distribution of water among ryotwari villages without causing injury to any of them. But they have clearly no such right in zamitidaris. The reason of the thing is against it. Because the zamindar is at least under the same obligations to his ryots as the Government are towards their own. To assume such a right is to ignore the history of the Permanent Settlement, the conduct of the persons concerned and their legal consciousness; common law is the offspring of such consciousness and conduct and in India particularly it is unsafe to rely upon anything else in opposition to it. A Royal prerogative is presumed when it is in public interests to do so, but not for revenue purposes, and any such prerogative is entirely against zamindars' and zamindari ryots' interests, in whose case Government have no power of remission of revenue or rent.
47. The decisions in Lutchmee Doss v. Secretary of State for India (1909) I.L.R. 32 Mad. 456 and Chidambara Rao v. The Secretary of State for India in Council (1903) I.L.R. 26 Mad. 66, referred to sources of irrigation outside the estate. In Secretary of State for India v. Swami Namtheeswarar (1911) I.L.R. 34 Mad. 21, the river and channel were admitted to be Government property. There are some observations in it however which may require further consideration.
48. The decision in Secretary of State for India v. Ambalamna Pandara S'annadhi (1911) I.L.R. 34 Mad. 366, only follows the Urlam judgment. The latest decision, Secretary of State v. Venhataratnammah (1914) I.L.R. 37 Mad. 364 (Benson and Spndara Ayyar, JJ.) is, it appears to me, in direct conflict with the Urlam judgment. It holds that a natural stream of which the beds and banks belong to the inamdar was not a stream belonging to Government.
49. My conclusions are--The Rajas and Chieftains who afterwards were granted permanent sannads were using the waters of natural streams for the cultivation of all lands that lay within the ayacut of the streams subject to the claims of the ryots.
50. While the sannads deprived them in express terms of some of the powers they were exercising, there was no interference with their claim to use the waters of natural streams.
51. There is no evidence whatever to support the suggestion that the zamindars were entitled only to cultivate lands then under wet cultivation free or that the Government reserved any right to themselves to increase the revenue if waste land was brought under cultivation or additional or different crops were raised on the land. This suggestion that part of a zamindari alone was to be under permanent settlement is inconsistent with probabilities and against the policy of the permanent settlement.
52. Usage disproves the suggestion. The Government imposed revenue when waste lands in ryotwari estates were brought under cultivation but never claimed any revenue from zamindars for cultivating waste, lands. Similarly they claimed enhanced revenue when river water or water from well sunk at ryot's expense within the ayacut of a river was used by ryots but not from zamindars when they used such water.
53. The ground on which the contention for the Government is based, that the peshcush was generally fixed on the basis of a certain area under cultivation has no foundation in fact. It is disproved in a great number of instances.
54. River water is indispensable for the cultivation of the lands that, lay within its ayacut and any prohibition of its use either directly or indirectly by the imposition of a cess or increase of land revenue is improbable.
55. The Government were precluded from recovering any charge for water as land revenue by the terms of the permanent sannad and there was no law entitling them to recover it otherwise ; any restriction placed upon the use of water either by prohibition or imposition of any assessment, at the pleasure of Government, is a breach of faith destructive of the security of property which it was the object of the permanent settlement to create.
56. The new zamindaris created by the East India Company were placed on the same footing as the old.
57. Act VIII of 1865 was not intended to effect any change in substantive law. It was only intended to enable Government to recover water-cess for anicut water, to recoup themselves for the expenditure incurred for the construction of irrigation works;, or when a ryot used the water in a natural stream owned by Government.
58. Act III of 1905 cannot be used to interpret Act VII of 1865; it does not make the river or water therein Government property.
59. Under the customary law of the country river water belongs to the owner of the estate through which it passes subject to the claims of the proprietors below.
60. I would therefore confirm the decree and dismiss the appeal with costs.
61. Under Section 98, Civil Procedure Code, the appeal is dismissed with costs.
62. The following three oases printed in small "type form footnotes to Secretary of State v. Janahiramayya (1914) I.L.R. 37 Mad. 322:
I Second Appeal No. 573 of 1911.
Sankaran Nair, J.
63. The appellant is one of the Nuzvid Zamindarg whose judicial history will be found in Baja Verikata Bern v. Court of Wdrds (1879) I.L.R. 2 Mad. 128 (P.C.) and Sri Rajah Venkata Naranimha Appa Bow v. Sri Rajah Rangayya, Appa Row (1906) I.L.R. 29 Mad. 437. The Zamindar alleged that the defendant, the Secretary of State, constructed in 1803 the Ellore Canal to oarry the anicut water through the Zamindari and thereby obstructed the flow of water into one of his tanks Voddu Cheruvu from his other three tanks, and since that time the Government have been supplying him with water free of charge for the cultivation of his lands, about 607 acres 14 cents, which depended on these tanks for their irrigation. From 1889 they allowed water-supply free of charge only for 427 acres 91 cents, and on his appeal from such reduction it was still further reduced to 202 acres 67 cents, lie prays for a declaration of his right to the supply of water as before and for certain reliefs consequential on such declaration. The Government filed their written statement and issues were framed which covered all the questions of fact relied upon by the plaintiff. But without taking any evidence, the question whether the plaint discloses a cause of action was first argued and decided against the plaintiff.
64. The Subordinate Judge held that no express " engagement" under Act VII of 1805 having been alleged, all lands irrigated by Ellore canal water must pay cess. The Judge in appeal held that a promise by the Government in 1863 to supply water may perhaps be implied in the plaint, though the issues according to him show that the claim was based on a letter of a Deputy Collector of May 1891, which, it may be remarked, however, is not referred to in the plaint. He was of opinion that unless there was an express agreement, the Government are entitled to levy water-cess at pleasure.
65. The decisions of the Lower Courts go beyond the claim set up by the Government, who concede the plaintiff's right to water free of charge for 200 odd acres in their written statement. The Subordinate Judge states that the plaintiff's pleader in. argument before him relied on a contract with the Government and the Judge states that the plaint apparently implies it. Issues Nos. 1 to 4 were necessary only if an implied agreement formed the basis of the claim. They certainly include it. In these circumstances as the evidence had not been taken and the plaintiff relied only on the facts alleged in the plaint and raised by the issue, an amendment of the plaint setting forth that the plaintiff relied on an "engagement " with Government should have been allowed if necessary. I do not think the omission to mention it is fatal to the suit. However to remove any difficulty we have allowed the plaint to be so amended. The question whether the facts set forth disclose a cause of action has been fully argued before us. As the plaintiff relies upon an " engagement" in 3863 with the Government in the sense in which that term is used in Act VII of 1865, it is necessary to refer to the events which led to the passing of that Act. "We assume that the facts on which the plaintiff relies are true. When it was proposed in 1856 or thereabouts to undertake a general survey and reassessment of the lands in the Madras Presidency, the question arose how those lands irrigated from the Godavari and Kistna anicuts were to be assessed. Till that time the practice in the Presidency when water was supplied from irrigation works was to charge a consolidated wet assessment when water was permanently available and to levy a water-rate only when it. was temporarily required for cultivation. The lands were classified as either "irrigated" or "non-irrigated". The Secretary of State suggested that this classification of lands according as they were capable of irrigation or otherwise from the Government sources should be abolished and all land should be classified with reference to its soil and productiveness without irrigation; a water-rate being charged when water is used or permanently available.
66.After ii long correspondence which showed that different views were put forward and various difficulties pointed out, among them the practical impossibility of fixing the assessment to which the land which has been long under wet cultivation would be liable as unirrigated land, it was finally resolved to accept the suggestion of the Secretary of State and orders were issued by the Government of Madias on the 12th March 1858 that "a water-cess calculated with reference to the additional irrigation canal communications, drainage and embankments is to be levied invariably on all lands irrigated from the Godavari and Kistna channels from the second year of irrigation, without any reference to whether they are Government land, Inam lands or belonging to proprietors, and if in the latter two cases the Acting Collector (Masulipatam) has neglected to take engagements and opposition is made, he is forthwith to stop the supply." These instructions received the sanction of the Secretary of State, and one of his reasons was that this would be the easiest and most equitable mode of obtaining a fair contribution from the Zamindars towards the re-payment of the expenditure incurred in the construction of " drainage irrigation and other works undertaken by Government and benefiting- the land of those proprietors as well as of Government." This is how the term "engagement" (see proviso to Section 4 of Ac VII of 1865 of which the draft bill was then under consideration) was used, so far as I know, for the first time.
67. These instructions were communicated to the Revenue Board and officials to be carried out.
68. From this the following conclusions may be deduced.
69. Water-rate was intended in re-payment of the cost of those irrigation works which supplied the water. It was not intended to assess lands which received their supply from sources, as in this case, completely under the zamindars' control with which the Government had nothing to do. No " engagements " with ryots were contemplated obviously for the reason that it could be included in land revenue, the only mode at that time of recovering the water charge from proprietors as distingaised from ryots of Government lands was to enter into engagements with them, and if they refused to do so, the remedy suggested was to stop the supply of water. It is clear that the zamindar was of bound to enter into any engagement with Government to take water when he was the owner thereof as when it was confined in tanks or reservoirs or in virtue of his riparian or easement rights from rivers, as it was not open to Government to prevent him from doing so. The Government were not in those oases supplying him with water ; nor could they therefore stop the supply.
70. It is probable therefore that where the Government continued the supply it was under some engagement.
71. With reference to these two classes there was no difficulty. In the first class of oases in which the irrigation was carried on without any cost to Government and in exercise of the proprietors' rights of easement by vicinage, of ownership, no water-cess was levied, or in fact, could be claimed. In the second class of cases where irrigation was carried out with water supplied from the anicnts and only by means of Government irrigation works, channels, etc., the Government were entitled to dictate their own terms for the supply of water. If they were not accepted, they were entitled to stop the supply. The result was that, between the construction of the anicut and the passing of the Act of 1.865, water was supplied to the proprietors on terms.
72. There were, however, other oases which it was more difficult to deal with.
73. Inams were exempted from permanent sanads and the nanja inams were irrigated from Government sources. Similarly where there were zamindaries (and those formed out of Havelli lands in which water sources were retained under Government control would be such) which were irrigated from Government sources. As they were entitled to Government water, the following rule for water assessment was passed for their benefit on the 26th October 1861:
74. " Lands granted as nanja inams and fally irrigated accordingly at the Government cost will not be charged with water assessment." The same rule was applied to zamindars.
75. There was a fourth class. "Water from the Government anicut works was often carried to the ryotwari lands by means of the old channels which passed through zamindarios and were for that purpose improved, enlarged and extended by the Government. The zamindar who obtained his water through these channels naturally claimed the ancient water which flowed through his channels. Some of the Government channels flowed through the tanks or reservoirs which were zamin property, and the zamindar was thus deprived of his tank water. Some channels, as the Ellore canal in the case before us, out off the supply to the tanks on which the cultivation of zamindari lands depended. It is obvious that the zamindar in all these cases had a just grievance. The Government however considered that the water-supply before the days of the anicut was precarious and irregular and they issued the following rule on the 26th October 1861:
No. 12. "Such nanja Inams as were formerly imperfeotly irrigated and have since been fully supplied with water from the anicut works, will be charged at half the above water-rates." The rule was made applicable to zamindaries also. There was a proposal sometime afterwards that even the rule which allowed the fall supply without any charge should be altered to allow half rate on the ground that there was never any adequate supply before. On account of the strong protest of the Board of Revenue the Government altered the half rate rule and allowed water free of charge even where the half rate had been levied on lands which " owing to the construction of the several anicut channels and other works connected therewith were found to have lost wholly or partially their pre-existing sources of supply." See G.O. No. 101, Revenue, dated the 16th January 1864. For determining what lands lost their sources of supply, the order states " the real criterion is the rate of assessment which the accounts show the land is liable to." The order further says, " If this indicates the title of the land to water or if other reasonable proof can be adduced, then no charge should be made for irrigation, as the engagement to supply water manifestly implied a full and not an imperfect supply.
76. There is only one further order to be referred to. The Secretary of State, in considering whether a cultivator should have the option to refuse Government water, said : the 16th January 1864 " with reference to your question, ' whether the ryot should be allowed the security against an excessive charge which the option of deciding, by a stated period of each year, whether he will have water or not, will give him,' I am clearly of opinion that such option should be permitted. There is little ground for apprehension that the option would be exorcised by the cultivator in the way of declining to use the means of irrigation when they are supplied to him at a moderate price, and the possession of it would in no respect limit the right which the Government, acting on your own behalf or on that of the Irrigation Company, must retain, the right of declining to supply any particular tract of country with water, unless the cultivator should be prepared to enter into engagements to take the water at the stipulated rote in such numbers and for such terms of years as might warrant the required outlay. Although few would probably reject the opportunity, yet no compulsion to take the water must be exercised towards the dissentients, and they must in no way be disturbed in the possession of their lands, TO long as they desire to hold them, and continue to pay the ordinary rate of assessment."
77. This despatch makes it clear that the Secretary of State wanted to give the ryots the same option of taking anicut water as the zamindars and inamdars had. This order was communicated by the Madras Government to the officers concerned and it was pointed out by the Government that "as regards lands which have been fitted for irrigation by the owners and have actually been irrigated for at; least one season it may fairly be held that such preparation and acceptance, of water imply acquiescence with the usage of the country which does not require any formal engagement." That really means, in other words, an engagement will be implied between the Government to furnish water and the ryots to receive this supply. In these cases where the water was forced on the ryots the option was allowed and agreements were directed to be taken from them for any further supply of water. And they added "The same rule must of course apply equally to the holders of lands in zamindaries until the zamindars come to terms with the Government and collected cess." In accordance with those directions rules were framed in 1864; the hill which subsequently became Act VII of 1865 was directed to be prepared in accordance with these orders of the Secretary of State. I extract below two of the rules:--Rule (7).--"Where ryots desire to convert dry land into wet application is to be made to the Collector either directly or through the Tahsildar on or before 31st March, and the Collector will arrange with the Public Works Department for the supply of water. Where the means of Irrigation for such land, already exist, the ryot shall, as a rule, have the option of continuing or ceasing to use the water at his pleasure, provided that where water is taken, etc." This shows clearly- no water-cess was intended where the ryot uses only the means of irrigation ho already had.
78. Rule (10).--"These rules shall apply to zimindari and inam lands except in the case of zamindaries, a composition shall have been made either for fixed yearly payment or according to the quantity of water supplied. Provided always that; no charge whatever shall be made under these rules for a single crop for zamindari or inam. land where such lands are proved to have been customarily cultivated with wet crops under old tanks, channels, or by any means of irrigation whatever prior to the construction of anicuts, or to have been charged in the accounts with such a rate of assessment as indubitably indicates the title o' such land to water or by the terms of the grant to have been given as nanja inam."
79. There wore thus three circumstances recognized as conferring a right to exemption from water rate otherwise leviable:
(1) The existence of any means of irrigation including tanks, ohannels whatever prior to the construction of anicuts;
(2) lands being charged with nanja assessment; and (3) the title-deed showing that an inam was granted as nanja. Two conclusions follow:
That it was not intended to levy any charge on cultivation carried on with any pre-existing source of supply, tank, channels and rivers; and that in these instances the Government were only carrying out a legal obligation created by interference with such pre-existing source of supply which would have been enforced by the courts.
80. An Act was necessary to collect the cess in the same way as land revenue and perhaps to remove the difficulties that might be caused by taking water through zamindari and inam lands. It was first intended only for the districts which used the Godavari and Kistna water and power was reserved in the original draft to extend it to the other districts. But finally the bill was drafted for the Presidency.
81. Before considering what the relations of the parties were or whether there was an engagement between the parties at this time, i.e., in 1863 and 1864,1 shall finish my review of the proceedings which led to the Act.
82. In forwarding the draft Act to the Government Pleader, the Government asked his opinion whether it was necessary to specify zamindari and iriam lands in order to enforce the special cess " on land newly irrigated from Government sources at Government expense. The opinion of the Government Pleader wats in the affirmative and he drafted the section in these terms : " This Act shall eitend lo all lands held, by zamindars or inamdars for the irrigation of which water may be, after the passing of this Act, newly supplied or used from any such river, stream, channel, tank or work as specified in Section 1." On its being pointed oat that this might preclude the levy of any water rate for irrigation nowly supplied to such lands since the construction of the anicut but prior to the passing- of the Act and which supply may hereinafter be continued, the Government modified it by omitting the words " after the passing of this Act, newly " and the section then ran in the form in which it was finally passed by the Legislative Council thus: " This Act shall extend to all lands held by zamindars, inamdars or any other description of landholders for the irrigation of which water may be supplied or used from any such river, stream, channel, tank or work as is specified in Section 1, provided always that where a zamindar or inamdar by virtue of engagements with the Government is entitled to irrigation free of separate charge no cess under this Act shall be imposed for water supplied to the extent of such right and no more."
83. In the case before us the water is supplied to the lands in suit from a Government source, to wit, Ellore Canal and Government anicut works, and therefore unless the plaintiff proves the ' engagement' that he sets up the Government are entitled to levy water tax. The word ' engagement ' in the section is no doubt used in the same sense in which it was used in the proceedings to which I have already drawn attention. Now, what was the state of things when the Act was passed? When the Government intercepted the flow of the wafer from the other three tanks mentioned in the plaint into Voddicheruvu, they undoubtedly inflicted an injury upon the plaintiff, and if the plaintiff had enforced his claim in a civil court he would have obtained a decree for compensation payable to him for such interference, which would probably have been a direction to supply him with that water which his tank was usually getting- before the interruption or some equivalent compensation. Now, it is not to be presumed that the Government did a wrongful act if the facts are consistent with any other supposition. The natural presumption is that they compensated him in some form, "We find that the Government had issued orders that where their irrigation works had interfered with a pre-existing source of supply, water was to be supplied free. We sec; here there was such interference and the consequent free supply. The orders also show that in other oases water was to be supplied to zamindars under engagements to pay at certain rates. We see here no such payment received or demanded. We further find that even as to the ryotwari lands the Government proceedings directed that engagements should be entered into and that the Government presumed that, when the ryots prepared their lands for irrigation and received water from such irrigation sources, an engagement might be implied. Under these circumstances, unless the free supply of water from 18li3 is explained by Government, it appears to me the presumption, not only natural but almost irresistible, is that there was an implied engagement between the parlies for the free supply of water. The Judge rightly observes: "the Act was an embodiment of the Government Order " ; but he holds that " it was for the zamindar to have entered into an engagement with Government as to the extent of irrigation to which he was entitled." In my opinion he is wrong in holding that an express agreement is necessary. That the plaintiff was irrigating the lands in suit with Government water free of charge is clear evidence £ that he was entitled to water sufficient to irrigate them either because they were thou being irrigated "It his tank water or could have been so irrigated or it was only on those conditions that he permitted any interferences with his property. The Government Pleader contends that, though there may be an engagement, it is only to the effect that the zamindars are entitled to receive from the Government water necessary for the old customary irrigation of their lands, that is to say, they are only entitled to water sufficient to irrigate that area which is entered as wet in the permanent settlement accounts, and, ill the absence of any allegation in the plaint that the land for which they claim free supply of water is land so entered as wet in the old accounts, the plaintiff is not entitled to maintain the suit. If the argument is that the 'engagement' in 1863 with reference to this estate had reference only to the old settlement accounts to the knowledge of both the parties, it is open to the Government to plead it and prove the same. That would be an express agreement. Otherwise it cannot be used to limit the plaintiff's claim based on the state of things in 1863. For, the zamindar may have improved the capacity of his tank or increased the area of his wet cultivation since the sanad and the supply of water must have been made to compensate him for his loss then sustained. If the argument is that an 'engagement' referred to is to be implied from the conditions that existed at the date of the permanent sanad, it is not an answer to the plaintiff's claim; because, if the facts imply an engagement in 1863 when the supply was obstructed, that there was another engagement in 1802 or afterwards, when the permanent sanad was granted, unless it is shown that that is the only engagement which is intended by the Act of 1865, is not material. The section it self is not restricted to any engagement at the time, of the permanent settlement. And I have no doubt it was open to the parties to enter into any engagement at any time they liked. The plaintiff may be entitled to say that if the old Gudigat wet area according to the permanent settlement accounts entitled him to more land than what he now claims then he should be entitled to the free cultivation of lands to that extent in addition. He may also be entitled to say, if he was getting water sufficient to cultivate more lands than the area he now claims, he is entitled to such quantity of water and cultivate more lands with it as it is reasonable to presume that the Government could not have intended to deprive a man of his property without compensation. This is apparently the effect of G.O. No. 2416, 17th June 1895 "where the mamul wet areas to be allowed are found to be in excess of the highest recorded areas under wet cultivation in the village concerned, the maximum area irrigable should be allowed." It is unnecessary however to consider this question as he makes no such claim in the plaint. The rules, already extracted, in force at the time the Act was passed, support this conclusion. He is entitled to exemption if his pre-existing source of supply is interfered with or if the accounts show a nanja assessment or if the title-deed supports the claim. The one is not exclusive of the others. The Act, as rightly pointed out by the fudge being only an embodiment, so far as this matter is concerned, of the pre-existing, rule, an engagement will be implied if any of these grounds exist. The tanks, if any, in the zamin undoubtedly belonged to the zamindar. The Government lay no claim to them. It is not probable that there was therefore any engagement by the Government to supply water for-the irrigation of such lands under those tanks. From where could the Government supply such water ? Not from these tanks with which they had nothing to do, and it is not shown there was any other source of water supply. No engagement can therefore be implied. An engagement, can only be implied in those oases in which it was in the power of the Government to stop the supply of the water claimed or when they undertook to supply such water themselves. Otherwise I see no reason for any implied contract so far as the lands irrigated with any pro-existing source of supply which did not belong to the Government are concerned. For these reasons I am unable to accept the Government Pleader's argument that the engagement to be proved has reference only to the wet area as shown in the permanent settlement accounts. If, however, it is necessary to prove what the area was so entered, then, the fact that these lands were under cultivation from 1863 to 1889, and it is not shown by the Government that the lands were brought under cultivation only some time after the permanent sanad was granted, would be evidence to show that they were mamul wet even at the date of the permanent settlement. The permanent settlement accounts are with the Government and if the extent to wet cultivation under these tanks is referred to in those accounts, it is for the Government to produce them if it is material.
84. The only case that has been cited in argument before us is against the Government Pleader's contention. Secretary of State v. Kameswaramma Appeal No. 182 of 1904 a similar case and the learned Judges, Benson and Miller, JJ., stated the question for decision in these terms : " The question for decision in this appeal is in effect what is the extent of land in the village of Ravipad which was irrigable from the irrigation works existing before the construction of the Godavari anicut irrigation system." I entirely agree. It appeared that various accounts showed the various extent of lands under cultivation but they adopted the greatest area irrigated which no doubt showed those lands were capable of irrigation works before the days of anicut. They did not put the plaintiff to proof of what the settlement area was. I am therefore of opinion that, if the facts relied upon by the plaintiff are proved, a cause of action is disclosed. The Judge is therefore directed to return findings on the issues in the case. It will be open to him to direct the Subordinate Judge to submit findings to himself.
85. Six months are allowed for findings, and seven days for objections.
Sadasiva Ayyar, J.
86. I concur in the decision just now pronounced by my learned brother, and if I add a few words in my own language, it is merely on account of the importance of the questions involved in this case. This is one of those cases arising out of the Government's having constructed anicut channels and other works connected therewith in the Godavari and Kistna deltas. Some of these channels interfered with the sources of irrigation to the lands of certain landholders or interfered with the flow of water to the tanks which formerly supplied water for irrigation to such lands. The Proceedings of the Board of Revenue, dated the 11th February 1898, contain the following:
When the system of anicut irrigation was introduced into the Godavari and Kistna deltas Government allowed free irrigation from the anicuts, to all lands which, owing to the construction of the several anicut channels, and other works connected therewith, were found to have lost, wholly or partially, their pre-existing- sources of supply (G.O. No. 101, Revenue, dated 16th January 1864).
87. This shows that about 1864, the Government offered to allow free irrigation from the anicuts to such lands as were deprived of their former sources of supply. The owners of such lands who did not enter into litigation with the Government in order to prevent Government from interfering with the old sources of supply and who took the water supplied by the Government from the Government anicuts must be taken to have accepted the offer of Government as satisfaction of their claims against; Government. The fourth paragraph of the plaint in this case says that the Government supplied the plaintiff's land with water from the year 1863 to fasli 1900 and that the plaintiffs accepted such water. There was, in my opinion, therefore a clear, completed engagement between the Government and the plaintiff set out in the , plaint and hence the plaint shows a good cause of action. Similar suits to this were instituted by the proprietrix of the village of Ravipadu, the proprietor of Chinchinada and by two other proprietors in 1902 in the District Court of Godavari. Mr. Hamnett, the learned District Judge who decided those suits, acted upon the Government Order of 1864 and found an implied engagement between the Government and the proprietors of those estates and gave effect to that engagement as against the Government. On appeal to the High Court by the Government, it was contended as the very first ground in the appeal memorandum [see the appeal memorandum in Secretary of State v. Kameswaramma Appeal No. 182 of 1904 that the District Judge erred in jaw in finding that there was an implied contract between the plaintiff and the Government to allow free irrigation for the extent of land, the irrigation sources of which had been cut off by the anicut works. The learned Judges (Benson and Miller) who decided that appeal and connected Appeals Nos. 183 and 184 of 1904 saw nothing in that contention and begin their judgment at once with the sentence : " The question for decision in this appeal is in effect what is the extent of land in the village of Ravipad which was-irrigable from the irrigation sources existing before the construction of the Godavari anicut irrigation system." Following the decision in those appeals, we must in this case set aside the decisions of the lower Courts which held that the plaint discloses no cause of action. I may add that in Secretary of State v. Kameswaramma Appeal No. 182 of 1904, it was assumed that, if there was an engagement between the Government and the proprietor, that engagement was to supply water free of tax on the extent of land which was irrigable from the irrigation works existing just before the construction of the Godavari anicut irrigation works, and not merely on the lands which were irrigable as wet lands at the time of the permanent settlement. The contention of the learned Government Pleader before us that the engagement mentioned in Act VII of 1865, Section 1(o) relates to the engagement at the time of the permanent settlement cannot be accepted in the face of the decision in Secretary of State v. Kameswaramma Appeal No. 182 of 1904. It seems unreasonable to hold that after a landholder has improved his zamindari and brought between 1802 and 1864, a large extent of land under wet cultivation by improving his irrigation sources, when the Government by their new anicut system cut off the , sources of irrigation supply to those large extents of lands, they intended to arrange with the znmindarto supply him water free of charge only to the wet area, which existed in 1802 but not to the area which had begun to be permanently cultivated as wet at the time when they constructed the anicut channels. The Government Order of 1864 and the Board's Proceedings of 1898 already referred to are against the Contention that the Government did not undertake liability to supply water free to all those lands whose then existing irrigation sources were interfered with by the Government's conductions. In the result I agree in the order proposed by my learned brothers.
II Appeal No. 15 of 1907.
ORDER
88. To enable us to decide this appeal satisfactorily, we consider it desirable to allow the parties to adduce further evidence on the following point:-- j, (1) What, if anything, passed to the grantee under Exhibit XX under the words ' besides poramboke ' and whether she obtained a right to the channels conveying water to the tanks irrigating the lands of the Lakkamdidi village or to those tanks themselves ?
89. The lower Court has not dealt with this point in its judgment, but appears to have assumed that the Government did not reserve the channels and tacks at the time of the Inam settlement.
90. We request the District Judge to take the additional evidence that the parties may adduce and to submit the same together with his opinion on the effect of such evidenoe within one month after the re-opening of the District Court after the recess.
91. In pursuance of the above order, the District Judge of Ganjam took additional evidence, both oral and documentary. As regards the oral evidence ho found that it was of very little use. The accounts given by the witness might be sot aside as of little value in coming to a conclusion on the question whether the inamdars of the plaint village of Lakkamdidi were entitled to the beds of the plaint Yellamanohili channel and its sub-channels so far as those beds lay within the limits of the Inam village of Lakkamdidi.
92. As regards the documentary evidence he found that the plaint village of Lakkamdidi was one of the villages in the Chicacole Haveli. Before 1766 the Haveli belonged to the Mogul Emperor. The Emperor granted the management of the Ciroars to the East India Company, which leased the lands in Chicacole to one Sroaram Eaz. The latter granted Lakkamdidi to Kannepilli Kamavadhanulu for subsistence. It was Yekabogha Agrahar up to 8th February 1861 on which date the holder of the village died leaving Kannepilli Venkataratnamma,--his childless young widow (see Recitals in Exhibit 16). The Haveli lands were resumed by the Government from the temporary lessees and sold in lots in 1803 and 1804 to the highest bidders on permanent settlement. Twenty proprietary estates were formed by the sale o£ the Chicacole Haveli lands in 1803. One of them was Jarjangi. The plaint Agraharam village of Lakkamdidi was within Jarjangi. The proprietors of those twenty estates were entitled to get only Tcattubadi. The Government seemed to have reserved to themselves the reversionary right in the inam tenures included in these proprietary estates. (See page 149, Exhibit N.) There oould be no doubt that Lakkamdidi was an Yekabhoga Agraharam (whole village inara), enjoyed by Brahmin inamdars. Besides the major whole village inams there were minor inams which related to grants of defined extents of lands as contrasted with grants of entire villages (see paragraph 29, page 155 of Exhibit N).
93. A reversionary right to resume the inam on failure of direct lineal heirs seomod to have been always asserted by the Government [Gunnaiyan v. Kamakchi Ayyar (1903) I.L.R. 26 Mad. 339], In 1854, the Government wished to give up their reversionary interests in the whole village inams and similar inams situated in the zamindaria, after fixing a permanent quit-rent. The Deputy Collector, as Inam Commissioner, being appointed to fix such values, prepared the register for Lakkamdidi (Exhibit 16). The whole village of Lakkamdidi was an Yekabhoga inam till the middle of the 19th Century. Then one-tenth of the village area seemed to have passed to Ravi Janikiramayya by a court auction sale and nine-tenths was enjoyed by Kannepilli Venkataratnamma. Two title-deeds were issued to Venkataratnamma and Janikiramayya in 1867. Neither of these is forthcoming now. The form of grants then obtaining in respect of whole village inam title-deeds appeared from Exhibits K, K-7, K-10, K-11, L--1, 2 (a) and 2 (b). The form in the first page first set out the grantee's present title and was then followed by the Government 'proposals to give up their reversionary right in consideration of a quit-rent. Then on the second page, the conversion into free-hold in favour of the grantee was entered as the grantee had agreed to pay the quit-rent demanded. The form in page 1, paragraphs 1--3 was as follows:
1. On behalf of the Governor in Council of Madras, I acknowledge your title to the shrotriom village of...claimed to be of...acres of dry land and...acres of wet land besides poramboke.
2. This inam is subject to a jodi or quit-rent of...and is hereditary, but it is not otherwise transferable ; and in the event of failure of lineal heirs it will lapse to the estate.
3. On your agreeing to pay an annual quit-rent of...inclusive of the jodi already charged on the land as above said, your inam tenure will be converted into a permanent free-hold.
94. Venkataratnamma got her title-deed in this form (dry and wet lands "besides poramboke"). It had to be observed that in the case of minor inams, the title-deeds issued about that time did not contain the manuscript additional words " besides poramboke." Act VIII of 1869 made clear that only the rights of Government were intended to be granted and that no proprietary right in the soil (which did not already exist in any particular inamdar) were intended to be newly given. About 1898 Venkataratnamma wanted a renewal of her last title-deed of 1867. Exhibit 20 was issued to her on 20th June 1898. Although this title-deed varied from that of 1867 in some particulars, it 'followed the old form including the insertion of the manuscript words, " besides poramboke" after the mention of the area of dry, wet and. garden lands. As regards the meaning of these words " besides poramboke," one very important entry, appeared in Exhibit K-2 (the Lukulam Register of 1862). The Inam Commissioner first mentioned the gudikat extent of the lands in Lukulam for purposes of valuation. He then deducted the extent of poramboke in favour of the inamdar [poramboke consisting of (a) the bed of the river Vamsadhara, (6) paths, (c) pasture land, (d) burial grounds, (e) channels, (f) sandy deserts, (g) sandy heaps in the bed of the river, (h) tanks and (i) village sites]. Then he made this important note: "The agraharamdars have nothing to do with the bed of the river," that is, he denied their titles to the items marked (a) and (6) above out of the poramboke items but he did not say that the agraharamdars had no right to the other poramboke areas, items (b) to (f), (h), (i) which included the channels (e) and tanks (h). The Government must have intended by the insertion of the words " besides poramboke " in the major inam title-deeds issued between 1863 and 1867 to acknowledge the title of the inamdars to the poramboke lands along with the cultivated dry, wet and garden lands. The insertion of the words could not moan that only the Government right to revenue from poramboke land was given to the inamdar, because poramboke lands were not assessed to revenue. The interpretation of the words as meaning "excluding poramboke" or " the Government reserving to itself the poramboke " was to say the least, far-fetched. By the words " besides the poramboke " the Government acknowledged the title of the inamdars of the whole inam village to the channel beds, and tanks in dispute.
95. This Appeal coming on for final hearing, after the return of the finding of the Lower Court, and the case having stood over for consideration the Court delivered the following JUDGMENT
96. The District Judge (Mr. Sadssiva Ayyar) has submitted the fresh evidence adduced both by the plaintiff and the Government and has expressed his opinion ' that by the words '' besides poramboke " in the inam title-deed, Exhibit XX, given to the inamdar--proprietor of the village--the Government acknowledged the titlo of the inamdar to the channel beds and tanks in dispute. The claim of the Government to water-cess cannot be maintained unless the water irrigating the village flows directly or indirectly from any river, stream, channel, tank or work belonging to or constructed by Government. According' to the former District Judge's finding the Garebulagedda which irrigates the lands in the village takes its rise in the Parlakimedi zamin-dari and does not pass through any Government lands before it irrigates the plaint village ; and the Government has not exercised any control over the gedda. But it was contended at the former hearing of the appeal that, although there is no evidence that the channel or stream and the tanks irrigating the village belong to Government it must be presumed that the ownership thereof is vested in it by virtue of Section 2 of Act III of 1905 (Madras Land Encroachments Act) which enacts (we quote only the necessary portion of the section) that" ...the bed of the sea and all harbours and creeks below high water mark and of rivers, streams, lakes and tanks and all canals and water-courses and all standing and flowing water and all lands wherever situated, save in so far as the same are the property (o) of any zamindar, poligar, mittadar jagbirdar, shrotriemdar, or inamdar or any person claiming through or holding under any of them...are and hereby declared, to be the property of Government, except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners and all customary rights legally subsisting." It was contended for the plaintiff, the inamdar, that the section does not really alter the law as previously under-stood and that the channels passing through the whole inam village cannot be presumed to be the property of the Government. We considered it desirable to call for a finding on the question whether by the grant of the inam to the inamdar the title to the channel irrigating the village belonged to the inamdar.
97. The original inam title-deed which was granted by the Government in 1867, has not been produced. It is stated to have been destroyed, A fresh title-deed which was granted in 1898 has been produced and is marked as Exhibit XX. An extract from the Inam register, Exhibit XVI, has also been produced. It appears from it that the Inam was originally granted in 1767 to one Kannepalli llamavadhanuln as personal hereditary inam by Sitaramraz. Sitaramraz was the brother of Viziaramraz, the then Zamindar of Vizianagram. He wagta renter under the East India Company which had obtained a Mrman from the Moghul Emperor granting the management of the circars to the Company. The village in question was included in the Chicacole Haveli in 1802. The Governmen sold its Haveli lands in 1803-04 to the highest bidders on permanent settlement; and 20 proprietary estates were formed by the sale of the Chicacole Haveli. The village in question is situated in one of the zamindaris so formed named Jarjnngi. The inam village was excluded from the permanent settlement of the Jarjaugl Estate. The proprietor of the estate was entitled only to get the kattubadi fixed on the village, the right of resumption of the inam being reserved by the Government. The Government subsequently recognised the inam granled by Sitaramaraz and settled the inam with the inamdars and granted a patta to them. The inam register Exhibit XV[ does not show that the Government intended to exclude any portion of the inam which had been originally granted in 1767. Exhibit XVI shows the mode in which the quit-rent payable for the village was fixed) the porambpkes consisting of channels, tanks village sites, pattis, burial grounds, hills as well as jungle and pasture lands together amounting to 116 acres was excluded from the total acreage of the village. The assessment was fixed on the cultivated dry and wet land. Exhibit XX, the inam patta of 1898, shows that the Government acknowledged the title of the inamdars to the whole village. It states : " I acknowledge your title to a personal inam consisting of the right to the Government revenue of land claimed to be 108'38 acres of dry, 218'53 of wet and 13 acres of garden and situated in the Jarjangi proprietary shrotriam portion of the village of Lakkimdidi of Chicacole, district of Ganjam." The words " besides poramboke " are inserted in the margin, the extent of this poramboke being as appears from Exhibit XVI, 116 acres. the District Judge assumes that the original title-deed must have also acknowledged the inamdar's title to the shrotriam village said to consist of a certain extent of dry and wet land besides poramboke. This assumption is based on the form of grants issued in respect of whole village inams as appearing from the title-deeds granted by the Government for other villages produced on behalf of the plaintiff, Ibis unnecessary to consider whether this assumption was safely made. It is contended on behalf of the Government that the object of the Inam title-deed was only to recognise the inamdar's title to the Government revenue or melvaram of the village and in cases where the inam was enfranchised to give up the Government's right of resumption; that as no melvaram was levied or payable on porambokes there could have been no intention to recognise the inamdar's title to any poramboke by the grant of title-deed. We do not decide in this case that the mere insertion in the maigin of the title-deed of the words " besides poramboke " must necessarily be taken to be" an acknowledgment by the Government of the inamdar's title to all kinds of poramboke. It was held in Narayanaswami v. Kanniappa Second Appeal No. 1445 of 1910 by this Court that such is not the necessary effect of the insertion of those words. The question in that CHBO related to the bed of a stream. The inam there was granted by the British Government in 1802 in lieu of certain lands held as emoluments of the office of Nattirvar which had been resumed by the Government. No boundaries were stated in the documents relating to the grant and no mention was made of the river or river-bed. The Court held that notwithstanding the insertion of the words besides poramboke "in the margin of the title-deed the documents in the case showed that it was not intended to acknowledge the inamdar's title to the bed of the stream. In Ambalavana Pandara Sawnadhi v. Secretary of State for lndia (1905) I.L.R. 28 Mad. 539 it was held that a grant of village " with all wells, tanks and waters " within the boundaries did not pass to the grantee an artificial water-course then existing which irrigated the village granted and other lands. There was no mention in the grant of the channel although the existence and importance of channels as separate entities was present to the mind of the grantor and although tanks and wells were separately mentioned. It was held that the. omission of the channel was intentional and that from that circumstance it was clear that it could not have been the intention of Government to recognise the inamdar's title to the channel or its bed. The effect to be given to the insertion of the words " besides poramboke" must depend on the evidence available in each case and the circumstances attending the grant, In this case it is extremely unlikely that when the whole of th0 village was granted in 1767 by Sitaramrasa it was not intended to convey to the grantee all the waste and porambokes in the village. The British Government accepted that grant and recognised the inamdar's title under it. The channel was not one which passed through any Government property before it reached the village of Lakkimdidi. It is apparently not a large stream connected with any system of irrigation maintained by Government and as found by the former District Judge the channel was not controlled by the Government to any appreciable extent. There was no intention on the part of Government at any time to derogate from the grant made in 1767. Both of the learned District Judges who dealt with the case proceeded on the footing that the channel and other poramboke in the village belonged to the inamdar. On the whole we see no reason to dissent from that conclusion. It has therefore not been proved that the water irrigating the village belongs to Government. In the result, we dismiss the appeal with costs. The memorandum of objections has not been argued and is also dismissed with costs.
III Second Appeals Nos. 1831 and 1834 of 1908.
Sankaran Nair, J.
98. The plaintiff is the inamdar of Adangarkulam village Nanguneri taluk. He states that a natural stream, Hannmanadhi which takes its rise in the Western Ghats flows through his village ; that he has been taking the water of that river to his tanks, six in number, at certain Beasons of the year when it was required for the irrigation of his lands ; that in order to divert the water into his channels he had to put up a dam across the river-bed as the river is on a level lower than that of the channels and water could not flow into liem when it was knee-deep or less than that and that he has been doing so, according to him, from time immemorial. The dam consisted of a masonry anicut with intorstioes between the vertical stones which he filled up when necessary, with mud or palmyra leaves. The plaint states that the masonry anicut in some places was damaged and he had therefore, to put up a temporary mud dam in front of it, for diverting the water into his channels. The first defendant the Government, recently levied an assessment from him for taking the water into his tanks. The other defendants are the ryots of some of the neighbouring villages who also deny plaintiffs' right to take water as claimed by him. He therefore seeks a declaration of his right to take the water of the stream to his tanks by diverting it into the channels and for that purpose to put up a dam across the river-bed, and also a declaration that the Government had no right whatever to levy any tax on him for taking such water. The first defendant who in the Secretary of State for India in Council denies that the river where it passes through his village belongs to the plaintiff. It is asserted that the river belongs to Government and that the plaintiff at the time of the inam grant did not acquire any rights claimed in the plaint to the use of the water. It is also denied that the anicut belongs to the plaintiff or that he is entitled to put up any dam across the river or to take water as he alleges through the channel for purposes of irrigation. The Government also allege that the plaintiff can only take water to irrigate the lands which were under wet cultivation at the time of the inam grant and that the assessment was in posed because he utilized the water of the stream for the purpose of raising nanja crop on lands on which it was not usual to raise before. The other defendants also deny the plaintiff's right. They allege that if the plaintiff is allowed to take water as claimed by him irretrievable loss and injury would be caused to the defendants who hold lands below. The right of the Government to the river bed, however is not accepted by them in their written statement.
99. The facts which are admitted or proved beyond doubt are--the Hanumanadhi river takes its rise in the Western Ghats and after running through various ryotwari villages in the midst of which the plaintiff's inam village is situated flows into the sea. Three of the hamlets belonging to this village lie on the western side of the river and the fourth or the last one, Uramali hamlet lies on the eastern side of it. For the irrigation of the lands belonging to these three hamlets lying to the west of the river, there are five tanks and there is one tank for the Uramali hamlet on the east side of the river. The masonry anicut which is referred to in the plaint is built across the river-bed to raise the level of the water to divert it into the channel which takes water for the stream to the five tanks of the three hamlets. That masonry anicut being now in disrepair the plaintiff has put up a mud-dam in front of it to divert the water. At some distance below that anicut the river bifurcates and at or near the point of bifurcation the plaintiff has put up a mud dam to prevent the flow of water along one of the branches and to make it flow into the other, that is the eastern branch that he might take it into his Uramali tank.
100. The plaintiff's case is that this system of taking water into his tanks has been in existence from time immemorial. The subordinate judge has found that the anicut across the bed of the river was built by the plaintiff's predecessors within the limits of the Adangarkulam village, that the river Hanumanadhi ran through the village both the banks of the river belonging to the plaintiff. He also found that he was a riparian owner of the inam village. The question whether ho was a riparian owner was raised apparently with reference to the plaintiff's claim as an inamdar. On the question whether the plaintiff was entitled to take the water he found that the plaintiff as a riparian proprietor was entitled to take the water for the irrigation of his own lands without causing any material injury to the other riparian proprietors and that the method he had adopted of constructing anicuts for the purpose of damming the river was in the circumstances of the ease, the only reasonable method of enjoying his right. He also found that no material injury was thereby caused to the other riparian proprietors. He also came to the conclusion that the plaintiff's predecessors-in-title had been putting up the dams in question and thereby diverting the water of the stream into his channels for a very long time probably from the year 1803 and certainly for more than 30 years. He was therefore of opinion that even if the plaintiff's natural right to take the water as a riparian proprietor has not been proved he has proved a right by prescription to take the water and he was also of opinion that in the circumstances of the case there is a presumption of a grant by the Government in favour of the plaintiff. He further held that the first defendant was not justified in imposing penal assessment on the ground that the plaintiff had pat up a dam and that the plaintiff as a riparian owner was entitled to the use of his stream to irrigate his inam village to any extent provided he did not thereby interfere with the rights of the other riparian owners either above or below him. It was also held that it was only when the plaintiff used Government water for the irrigation of any lands in excess of the original area that the Government had a right to raise any revenue on that account and that this was not Government water in that sense. The other questions which were argued before him and decided are not material for the purposes of this Second Appeal. 11 e accordingly passed a decree in favour of the plaintiff declaring his right to put up a dam in the river.
101. In appeal it is first contended before us that the finding of the Judge that the dam erected at A in the plan across the bed of the river to take water to the five tanks is within the plaintiff's village of Adangarkulam is wrong. The Survey plan of the inam village of Adangarkulam on the west of the river and of Thanaikulam on the east of it, shows that the bed of the stream is included within the limits of Adangarkulam. The river at that place is called Adangarkulam river in the Pymash accounts and is described as the boundary of another village, Kalyanakulam also on the eastern side (k). The Government Revenue accounts of 1803 treat the bed of the stream adjoining it as part of the Adangarkulam village (Exhibits E, E-1, and E-2). These are the reasons given by the learned Subordinate Judge for his finding The Advocate-General however states that though the village is recognized as belonging to the plaintiff and the descriptions of the boundaries and the Revenue accounts of the village may show that the river bed is included within its limits, ye I, unless it is expressly stated that the river bed is conveyed it will not pass and ho relies upon the decision in Narayanaswami v. Kanniappa Second Appeal No. 1445 of 1910 and in Kondappaneni Kotayya v. Ganguru Seshayya (1913) 14 M.W.N. 495 at p. 496. That was a case of a grant on shrotriem tenure and it is stated in the judgment that the object of the grant was to make a provision for an official whose office was no longer necessary and " what was regarded was the land as producing an income. " In the case before ns there is no grant produced. There is therefore nothing to rebut the inference drawn by the Subordinate Judge from the facts above set forth. It also appears that the plaintiff and his predecessors have been exercising acts of ownership in the bed of the stream by putting up stone pillars. Moreover when the plaintiff applied to the Inam department of the Revenue Board office that the poramboke in the village may be ordered to be expressly included in the Inam patta he received this reply, " It is not the practice to enter the extent of poramboke lands too in the pattas issued on the Settlement of the whole village. The term entire village includes the poramboke and all other lands which are within the four boundaries and comprised in inam patta Hub. The inamdar, therefore, may enjoy in any way he pleases all the lands within the boundaries of each village. There is no necessity to pay separate tax to Government for it " (Exhibit S). I uphold the finding of the Subordinate Judge on this question.
102. It is next urged by the learned Advocate-General that the plaintiff's claim to erect a bund or dam up a river is unreasonable. The plaintiff is a riparian proprietor : ho 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. See Miner v, Gilmour (1858) 12 Moo. P.C.C. 131 and Debi Pershad Singh v. Joynath Singh (1897) I.L.R. 24 Cal. 865 (P.C.),. The Subordinate Judge in a careful judgment finds that, when the water in the stream is only knee-deep or below that level, the erection of bunds to raise the level to divert the water into channels is necessary for purposes of irrigation. He finds that the holders of land above and below have been similarly erecting bunds to take water to their lands. Six permanent anicuts above and two below were erected by the Government to divert stream water into irrigation channels. In 1873,1874, 1882 and 1889 the existence of the dam and its prejudicial effects on the cultivation of Government ryotwari lands was brought to the notice of the Government and they recognized the plaintiff's right to take water by the erection of dams (Exhibit 0). It is difficult to believe that, if this had been unusual, it would have received any recognition. There is therefore strong evidence to support the conclusion of the Subordinate Judge that the erection of bunds at certain seasons when the water was only knee-deep is reasonable and in Second Appeal we cannot interfere with that finding.
103. The Subordinate Judge also finds that no material injury has been caused to the defendants by the erection complained of. We therefore uphold the decision of the Subordinate Judge that the plaintiff has the right to erect dams which ho has erected to enjoy his natural rights. No objection has been taken to the dimensions of the dam or to the time of its erection.
104. The Subordinate Judge goes further and finds that even if material injury was caused to the other riparian proprietors they are not entitled to complain as the plaintiff has acquired a right to take water to his tanks by prescription. He ' finds that even if the masonry anicut was put up for the first time only in 1872 or 1873 the plaintiff has been damming up the stream to take water through his channels to his tanks for irrigation by putting up mud or sand dams across the bed of the river long before that time. He finds from the documentary and oral evidence adduced in the case that these channels have been in existence as supply channels for his tanks from before the year 1803. He discredits the defendant's evidence that they were only marukalls or drainage channels. This finding is supported by evidence and we see no reason to interfere with it, and on this finding also the plaintiff is entitled to the declaration that he has obtained.
105. It is contended on behalf of the Government that the plaintiff was not entitled to take water to raise wet crops on lands on which hitherto it was only customary to raise dry crops, on the ground that it must be taken that the plaintiff was only entitled to receive so much of the water of the stream as was conceded to him by the Government when the village was granted to him in inam, and if he takes any more water he is liable to pay any assessment that may be imposed under the Madras Act VII of 1865. The Subordinate Judge disallowed this claim on the ground that the river did not belong to the Government under section I of that Act as he had found that it ran through the plaintiff's village, the banks on either side belonging to him and also on the ground that he is a riparian proprietor. It is however urged by the learned Advocate-General that tinder Act III of 1905 whatever might have/been the law before it must now be taken that the water of the stream belongs to the Government. The provisions of this Act were not considered by the Subordinate Judge as the suit was instituted in 1904 before the Act was passed. In reply to this it is urged before us by the respondent's pleader that, first of all, the Act did not interfere with the rights which existed before and the riparian rights of the plaintiff are preserved and, secondly, that neither the water nor the stream belonged to the Government. It was also/urged that on the facts found in this case there was an engagement between the plaintiff and the Government by which the former was entitled to irrigation free of charge. It is not contended that the plaintiff has taken more water than he has been taking before. It appears that, he has taken water from the river only to fill the tanks as he has been doing hitherto. The carrying capacity of the channels is not said to be greater now than before nor is it said that the tanks have been widened or deepened in order to take in more water than hitherto. The plaintiff is clearly entitled to irrigation of such land as it is in his power to do so with the water which according to the findings, he is entitled to take from the stream. The right that is proved |s the right to take the water until the tanks are filled. It is not shown that he has taken more water than that. We must therefore disallow the contention on this ground; The Second Appeals are dismissed with costs under Section 82, Civil Procedure Code. We allow a period of three months for payment of costs.
Abdur Rahim, J.
106. I agree.