1. In this case (O.S. No. 43 of 1896) the Government, in our judgment, were not entitled to levy the double water rate. Consequently, the plaintiff, who paid the double water rate, is entitled to recover it back. The Government claim the right to levy this double rate under the powers conferred by Act VIII of 1865 and the Rules made under that enactment. Rule Y, so far as it is material, provides as follows: 'Double water rate will also be charged if water be taken from a sluice or channel or other source of supply other than that which is provided. approved by the responsible officer of the P. W. D.' The land which the plaintiff claimed the right to irrigate in 1895 by water drawn from a source of supply which the Government say was' a source of supply other than that provided or approved by Government,' is described as mamool wet land and the greater part of the land is Inam land. It would seem that an anicut was built by Government in 1852 and there appears to be no doubt that, at that time, for the purpose of irrigating the lands now held by the plaintiff, water was drawn from a natural channel known as the Desikodu. Soon after the construction of the anicut an artificial channel known as Tadikona channel was made and the Desikodu channel, presumably as the result of the irrigation works carried out by Government, became a mere drain and was utilized for the purpose of carrying off surplus water. It would seem that until, somewhere about 1889 the plaintiff had irrigated pactically the whole of his lands (with the exception of a plot of land about an acre in area which lies between the Tadikona channel and the Desikodu drain, and which for the purposes of this appeal may be left out of consideration) by taking water from the Tadikona channel up to the Desikodu drain and over the drain by an aqueduct or trough, on to his lands on the further side of the drain. There is evidence that this has been the method of irrigation since the plaintiff became possessed of the lands in question some fifteen years ago. There is practically no evidence as to the particular method of irrigation prior to that date, though there is general evidence that, since the construction of the anicut, the Tadikona channel had been used as a source of supply in the place of what, before the construction of the anicut, had been the Desikodu channel, and is now the Desikodu drain. An issue was raised as to whether the plaintiffs were entitled to cultivate their lands by means of water taken from Tadikona channel. The District Judge found that they were not so entitled provided other adequate arrangem entswere made by Government. The respondent, besides relying upon the grounds upon which the judgment of the District Judge was based, has sought to support the decree upon the ground that, on the evidence in the case, a grant by the Government by way of easement ought to be presumed.
2. Cases may arise in which the Court would, apart from any question of the acquisition of a right by enjoyment for a prescribed statutory period, ascribe the enjoyment to a legal origin and, by a legal fiction, presume a grant by which the legal right is assumed to have been created. See, for instance, the judgment of the Judicial Committee in Rajruh Koer v. Abul Hossein, I.L.R. 6 C. 394 and the judgment of Lines, J., in Ponnusmawmi Tevar v. The Collector of Madura 5 M.H.C.R. 6. In the present case, however, we do not think the evidence is sufficient to justify the presumption of a grant creating the right which the plaintiff claims. There is, however nothing to show that up till about 1889 the Government ever questioned the plaintiff's right to obtain his water supply from the Tadikona channel. It would seem that about 1889, the question was raised by Government and the Government, apparently by way of | settling the question, caused to be forwarded to the plaintiffs a written communication in the following terms:
Through the Delta Channel Officer, Ralli Section, and Delta, Superintendent, Amalapur.
Dometi Venkata Reddi of Bodasakurru and Per' Jagannath of Perur.
With reference to Divisional Officer's No. 357/(16-12-99) you are informed that your lands 124 acres can be irrigated as hitherto-'fore by means of three spouts across Desikodu drain from water 'source of Tadikona channel, the branch of Amalapuri canal, till 'some proper means of watersupply are provided for, i.e., till' water in Bandamurlanka canal is increased and a dam is built in' Bodasakurru channel.
' Assistant Engineer.'
3. This document contains the clearest possible recognition by Government of the plaintiff's right to use the Tadikona channel as his source of supply at the time the communication . was made (January 1891) and is an intimation by Government that they were prepared to recognise this right, until 'proper means of supply' were provided, and the proper means of supply are Described in the document as the increase of the water in Bandamurlanka canal and the building of a dam in Bodasakurru channel.
4. In 1893 the Government gave notice to the plaintiff to remove the aqueduct by means of which he carried the water he obtained from the Tadikona channel on to his lands and the acqueduct was afterwards removed by Government. The plaintiff replaced it and in 1895, he obtained Ms supply from this source. The aqueduct, &c;, were afterwards again removed by Government.
5. To entitle the Government to recover the double rate, it lay on them to show that in 1895 the plaintiff obtained water from a source of supply other than that provided or approved by Government. In 1891 the Government had. expressly approved Tadikona channel as a source of supply until they had carried out certain works so a to provide 'proper means of supply' On the Government's own admission these 'proper means of supply'' did not exist in 1891, and there is no evidence to show that in 1895 (for 1895 is the crucial date for the purposes of this case) 'proper means of supply' had been provided. This being so, it is clear that the case does not come within rule V and the Government were not,, entitled to levy the double rate.
6. The plaintiff is entitled to recover the amount for which he sued and the appeal must be dismissed with costs.