1. The channel in dispute is an artificial channel and was in existence before the grant of the three inam villages to the plaintiff.
2. The first question for decision is whether, on the proper construction of the plaintiff's title deed the grant of 1614 [Exhibit J (1)] the channel in regard to which the declaration and injunction are sought, is included in the grant and is therefore the absolute property of the plaintiff as contended by him.
3. The channel is one that conveys waters from the bed of the Tambrapurani river to certain Government villages on its banks, and then to the three inam villages of the plaintiff, and then to other Government and other inam lands lower down on the channel. In the grant of 1614 the boundaries of the village are specified, and then the grant says that within these boundaries the wet lands, dry lands, Swarnadayam, village site, temple, palmyra and other trees, groves, wells, immemorial waste, tanks,mine, treasure, waters, trees, stones, whatever is obtainable and what is desirable and eight rights of ownership (Ashtabogam) are granted.
4. It is remarkable that there is no express reservation of the channel nor any mention of the grant of the channel, though the existence and importance of channels as separate entities was present to the mind of the grantor, since more than one channel is referred to in detailing the boundaries of the village.
5. The omiosion to grant the channel is significant, especially when it is observed that tanks and wells are separately mentioned and we think that the omission was intentional and that the word 'waters' (jala) cannot be held to include the channel. The channel in question is a large and important feature running right through the villages and it would certainly have been mentioned, if it was intended that its ownership should pass under the grant. The word ' jala' would never be used to describe a particular channel. It is used in the present case along with other words to indicate the completeness of the grant of the things specified as granted, viz., the wet and dry and waste lands, village site, &c.;
6. And it is natural that the Government in granting villages as inam should not have granted the channel, since the conservation and control of works of irrigation have from the earliest times been the especial function and duty of Government in India (The Madras Railway Company v. The Zemindar of Carvatenagaram, L.R. 1 I.A. p. 364 Ponnuswami Tevar v. The Collector of Madura 5 M.H.C. 6 and S.A. No. 1851 of 1902 See Sankaravadivela Pillai v. Secretary of State I.L.R. 28 M. 72. and in the present case the channel running through the three villages granted to the plaintiff is only a portion of a channel which supplies other lands both higher up and lower down than the lands granted to the plaintiff and the grant of the proprietary right in so much of the channel as passed through the plaintiff's villages would be obviously inconvenient and injurious to all concerned, as creating a divided ownership and control and a divided responsibility for the upkeep of the channel as a whole, and of the dam across the river on which the channel depends for its supply of water.
7. We find, then, that the channel is not included in the grant, and we agree with the District Judge that the plaintiff has not had any adverse possession of it as against Government so as to give him a proprietary title by prescription. The fact that the plaintiff clears the channel and contributes labour when the channel is breached and contributes labour to assist Government in erecting the dam in the river each year is no proof of any proprietary right-It is customary for landowners to contribute such labour for ordinary repairs of irrigation works by which they benefit, and such labour may even be enforced under the provisions of the Madras Compulsory Labour Act (I of 1858,) but it by no means indicates that the persons liable are owners or co-owners of the irrigation works. It is significant that the only expensive materials for the dam viz., the timber required is supplied by Government.
8. The channel not having been granted remains the property of Government and the proper officers of Government have the right of entering on it and carrying out such repairs and improvement as are proper, but in doing so they must no!; interfere with the customary supply of water to the plaintiff's lands or unnecessarily cause damage thereto. The rights and liabilities of Government in maintaining and in improving existing irrigation works has recently been considered by this Court in the case of Sankaravadivelu Pillay v. Secretary of State for India (S.A. No. 1351 of 1902 Since reported, see I.L.R. 28 M. 72 but in the present case it is not necessary to do so, since there is not only no evidence that the plaintiff has been injured or must necessarily be injured by the work done, or proposed to be done by the defendant in regard to the channel, but it is clear, as the District Judge observes, that particular orders have been issued to the Department of Public Works to revise the estimate (Exhibit 38) so as to be quite certain that no damage is caused to plaintiff.
9. There is therefore no case for the declaration sought for or for injunction (Krishna Aiyyan v. Venkatachalla Mudali 7 M.H.C. 60 and we dismiss the second appeal with costs.