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1. This is an appeal against a decree of the High Court of Madras dated the 27th October, 1915, which affirmed a decree of the District Judge of Vizagapatam, dated the 9th December, 1909. The suit was brought by the Maharaja of Bobbili, viz., the present respondent, for the refund of a sum levied under the Madras Irrigation Cess Act (VII of 1865), and paid under protest, and for a declaration that he was entitled to use the water from a certain channel for irrigation of the village of Narayanapuram, free of the cess.

11. The question accordingly in the present case is whether there are such "engagements with the government." On this question there was a sharp division of opinion in the Courts below, and it is necessary to state how it is that the government's claim to be owner of the channel arises. In the year 1833 the Palkonda zamindar rebelled against the government. His lands were in consequence forfeited to the Crown. As already stated, the artificial channel was at that time constructed and the irrigation as a system applicable to the lands of Bobbili was in full operation. No attempt was made by the government of the day to change the footing upon which the irrigation rights were enjoyed or to assert any right in the Crown as owner of the servient tenement of Palkonda which would lessen or interfere with the continued easement by the respondent's predecessors as of right and without exaction or charge.

13. Upon the facts of the present case it appears to be clearly established that for about fifty years, namely, from 1814 till 1865, when the Act was passed, the owners of Palkonda and the zamindar of Bobbili stood in the position of having, the one a servient, and the other a dominant tenement, with tho unchallenged enjoyment of the easement of water supply as stated. Had the question now in suit accordingly arisen in the year 1864, there seems little reason to doubt that the right of the respondent would have been settled upon that footing.

15. The position is strengthened by the further lapse of time and, in their Lordships' view, the government must stand committed to the transactions which they have accepted as binding parties for a period of between eighty and ninety years, during which (including forty years since tho Act was passed) the zamindari of Bobbili has been enjoyed without any question that the zamindar held under a tenure which gave him the benefit of the proviso in the statute.

16. This view is in no way in conflict with the view of Lord Parker in the case referred to. On the contrary, it appears to be supported by certain passages in that judgment. His Lordship refers to tho permanent settlement in the Madras Presidency under which the government granted to the zamindars "a permanent property in their land for all time to come, and would fix for ever a moderate assessment of public revenue on such lands the amount of which should never be liable to be increased under any circumstances"; and he adds: "Under those circumstances tho government could not impose a cess for the use of water tho right to use which was appurtenant to tho land in respect of which tho jumma was payable without in fact, if not in name, increasing the amount of such jumma, and thus committing a breach of tho obligation undertaken at the time of the permanent settlement." With regard to the actual question in the present case, judgment was expressly reserved. Referring to the difficulties which arise in construction of the Act and the fact that the levy is made on the basis of the area irrigated, irrespective of profits, Lord Parker said : "If in order to avoid this result reliance were placed on the first proviso, the question would arise whether it were possible to imply some engagement with the government acting out of the natural or prescriptive right of the riparian owner."