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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.

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."

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.