Abdur Rahim, J.
1. This appeal is preferred by the Secretary of State for India in Council against the judgment of the Subordinate Judge of Tinneyelly in a case in which the right of the Government to levy water cess on 33 and odd acres of land in the inam village of Vadagarai belonging to the plaintiff-respondent is in dispute. The Government claims the right to levy cess on the allegation (paragraph 2 of the written statement) that the waters of a Government channel called Karimandy Ammankal mingled with the water in the Shamalanadhi river more generally known as Pachayar which supplies the channel and the tanks by means of which the plaintiff's village is irrigated, and that they are entitled to charge water rate on any land cultivated in excess of the quantity which was under cultivation at the time of the enfranchisement and confirmation of the inam in 1864-65. It is then claimed (paragraph 4 of the written statement) that the river Pachayar itself belongs to the Government. On the other side, it is alleged (see plaint paragraph 9) that the whole course of the river from beginning to end lies within the plaintiff's inam limits. That statement is found to be not correct and no argument on the basis of it has been pressed before us. This river has its source in the hills which divide Travancore from the British territory in this locality and it flows up to and a little way below the anicut at the point where the channel which irrigates the plaintiff's lands takes off, along the plaintiff's inam village. On the southern side is the village called Arasapattu, the greater portion of which amounting to 390 acres is inam land belonging to the plaintiff and a very small portion amounting to 55 acres is ryotwari. Below the anicut and on the southern side, there is a ryotwari village called Pattai which is also irrigated by this river.
2. Admittedly, the quantity of plaintiff's land in the inam village of Vadagarai which was cultivated with water of the Pachayar river at the time of the Inam Settlement was about 115 acres and since then 33 more acres and odd have been converted into wet and it is with reference to the right to irrigate these 33 acres with water of the Pachayar that the question has arisen. The claim of the Government is founded mainly on the ownership of the Pachayar river and also on the allegation that the water of a Government hill stream or ' odai'called Karimandy Ammankal gets mingled with the water of the Pachayar river above the anicut.
3. It will appear from the map that in its upper reaches the Pachayar bounds the mam village of Vadagarai on the north and the village of Arasapattu on the south. On the east of Arasapattu is the Government village of Pattai through which the river continues its course and we may take it, as contended by the learned Advocate-General- appearing for the Secretary of State, that the Pachayar flows thereafter through a number of ryotwari villages. Though the Pachayar is not an altogether small stream, it is a non-tidal and non-navigable river and like most of such rivers, there is very little water in its bed in the dry season.
4. One important question of fact which was argued before us was whether the banks of the Pachayar above the ancient belong on the southern side, as they admittedly do on the northern side, to the plaintiff. It is not easy to locate the ryotwari land in the Arasapattu village as no definite evidence was adduced on the point but considering its small extent, we are not prepared to assume for the purpose of this case that the 55 acres of ryotwari land all stretch along the bank of Pachayar and are thus riparian property and that the rest of the lands amounting to 390 acres are all non, riparian situated at the back. The only evidence with respect to the possession of the southern bank is in favour of the plaintiff's case. For such evidence as there is on the point shows that acts of possession, such as, by the leasing of Korai grass on the islands and on the banks, have been for a long time exercised by the plaintiff. This evidence has been accepted by the Subordinate Judge and in fact there is nothing to rebut it. We must therefore hold that both the banks of the river above the anicut are owned by the plaintiff.
5. It is not disputed that this is a pre-settlement inam having been granted by some ruler of the country before the advent of the British Government. The anicut has been in existence for a long time and was constructed by the predecessors of the inamdars and so also the channels and the tanks by which the Vadagarai lands are irrigated. It is not suggested that the Government has constructed any works of irrigation in connection with this stream, at any rate, above the anicut. Nor is there evidence that they have in any way exercised acts of ownership with respect to this portion of the river.
6. Under Section (1) of the Madras Irrigation Cess Act of 1865, whenever water is supplied or used for purposes of irrigation from any river, stream or channel belonging to or constructed by Government, the Government is entitled to levy a separate cess for such water provided the Zamindar or Inamdar whose land is so irrigated is not entitled, by virtue of engagements with the Government, to irrigation free of separate charge.
7. In order to justify the imposition of cess under this Act, it must be made out that the irrigation is caused by water supplied or obtained from a stream or river belonging to the Government. The question as to what classes of rivers, streams or channels belong to the Government has recently been the subject of much discussion in this Court, giving rise to a considerable conflict of opinion, so that it is difficult to say that there is any consistent statement of the law of binding authority which one can follow. One point of view is represented by the judgment of Miller and Munro, J.J., in the well-known Urlam case, Kandukuri Mahalakshmamma Garu v. The Secretary of State for India I.L.R. (1910) M. 296 and followed by Oldfield and Bakewell, J.J. in The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389 and also approved by White, C.J. and Ayling, J. in The Secretary of State for India, Ambalavana Pandara Sannadhi I.L.R. (1910) M 866. On the other hand, Sankaran Nair, J. in more than one case has expressed the opposite view in elaborate judgments and his view has found acceptance with Sadasiva, Aiyar, J., in his dissentient judgment in Secretary of State v. Janakiramayya (1915) 29 M.L.J. 389 while the learned Chief Justice and Seshagiri Aiyar.J., in The Secretary of State v. Maharaja of Bobbili (1915) 30 M.L.J. 163 would seem to steer a middle course between the two positions. Further the Urlam case for judgment of the Judicial Committee, see 33 M.L J. 144 as well as the judgments in The Secretary of State for India v. Maharaja of Bobbili (1915) 30 M.L.J. 163 Secretary of State v. Janakiramayya (1915) 29 M.L.J. 389 and Appeals 182-184 of 14 are under appeal to His Majesty in Council.
8. In this state of the authorities, I think it is desirable that I should state my own view of the law, and the reasons for the conclusion at which I have arrived.
9. The entire basis of the decision of the Urlam case is the provisions of the Madras Land Encroachment Act, III of 1905, Section 2 of which declares 'all public roads...ditches...the bed of the sea, harbours and quays below high-water mark, and all rivers, streams, nullahs, bays 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 of any Zamindar...Inamdar... 'to be the property of the 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 to all customary rights legally subsisting.'
The very title of the Act and its preamble show that, as stated there, the Act is intended to provide measures for checking unauthorized occupation of lands which are the property of Government by the provision of penal or prohibitory assessment or charge.
10. Section 2 declares what are the properties of the Government. The rest of the sections deal with the mode of levying assessment on Government land, the penalty for unauthorized occupation of such land by any person, his liability for eviction therefrom, the notice to be given to him, the power to decide the question of assessment, all referring to land. There is not a single section which provides for the levying of any assessment, charge or penalty or any other mode of redress with respect to unauthorized user or appropriation of water standing or flowing as apart from the land it occupies.
11. The judgment in the Urlam case is founded in the first place on the supposition that the words ' standing and flowing water' mean the liquid as separate from the reservoir, or stream containing it or through which it flows.
12. With the greatest respect, I think, it is perfectly clear that what is meant is the water and the land on which it stands, or over which it flows, the whole taken together collectively and not the mere liquid apart and separate from the land.
13. It is possible that the idea sought to be conveyed by the Legislature might have been more tersely expressed without sacrificing clearness; some of the words used are evidently superfluous. It is, however, clear to me that what the phrase ' all standing and flowing water' was intended to include was all land covered with water or forming a water course.
14. Any other interpretation would lead to imputing to the Legislature an intention which it is difficult to conceive it could have ever entertained.
15. The interpretation which has been sought to place upon this section on behalf of the Government would logically result in declaring that the water even in wells, tanks and reservoirs or in springs and streams wholly situate in the land of a Zamindar, inamdar or any other proprietor, belongs prima facie to Government unless it can be shown that it belongs to the land owner. When this was pointed out to the learned Advocate-General during the course of the argument he said he was not prepared to go so far, but it is difficult to see how if the reasoning of the Urlam case is right, the extreme conclusion could be resisted.
16. Then is it correct to say that the effect of Section 2 is to cast the onus of proof on any person whose right to the subjects of property mentioned in Section 2 is contested by the Government ?
17. I venture to think that this is not so. The scope of this section in my opinion is only to declare that certain classes of properties which do not belong to any individual private proprietor belong to the Government; I do not see how from this any inference could be drawn that if the Government chooses to assert a right to land, stream or any other class of property mentioned in the section as against the person in possession or enjoyment thereof, that thereupon without more and without regard being paid to any other facts, such as possession and user of the property in question, the burden is thrown upon him of proving that the property belongs to him. If that construction were right, it would make no difference in this respect whether the Government was seeking to eject the person in occupation or to levy on him a penal assessment or a water cess. I venture to think that such a radical and comprehensive subversion of the ordinary law of proofs was never contemplated. If it had been, one, would have expected to find a clear and direct statement of such an intention. On the other hand, I find nothing in the words of Section 2 to warrant the supposition that the Government was there laying down a new rule of evidence or procedure of such general and far reaching significance, It is hardly possible that an important alteration like this in the law of evidence, if contemplated, should not have been dealt with by a clear and express enactment but left as a matter of merest inference to be drawn from the provisions of an Act addressed to the limited purpose of providing special remedies for cases of encroachments on Government lands. Laying the burden of proof, in my opinion, wrongly on the person in possession or enjoyment of a stream or river to show that it belongs to him, the next step in the argument on behalf of the Government, is stated in this simple form. According to ordinary notions of jurisprudence, flowing water cannot be the property of any private individual and therefore by virtue of Section 2 it becomes the property of the Government. In the first place, this argument overlooks the fact that by Section 2 the Legislature is dealing with unappropriated properties and not with unappropriated things supposing that flowing water comes within the latter category. Reliance is placed upon the definition of a stream as given by Lord Watson in ' McNab v. Robertson (1897) A.C. 129 ' as a body of water having as such a continuous flow in one direction, ' as shewing that the bed and the banks do not enter into the conception of a stream. In that case, all that Lord Watson wanted to make clear was that only a continuous body of flowing water with a well defined course and not water ' which does not flow onward with any continuity of parts but becomes dissipated in the earth's strata. ' can be called a stream. It is obvious to me that Lord Watson could never have meant to suggest that the bed and the banks do not form parts of a stream or a river, which indeed would be opposed to our ordinary conceptions. In the well-known text book of Angell on Water Courses it is stated at page 2 that a '' water course ' which includes rivers and streams-'consists of beds, banks and water. ' (See also Coulson's Law of Water Courses page 77). Nor do I find anything in Section 7 of the Easements Act to support a contrary notion. On the other hand the illustrations appended to that section particularly are in accordance with the ordinary conception of a river as consisting of the beds, the banks and the water.
18. Nor is the proposition that flowing water cannot be the subject of private property quite accurate. For instance, it can hardly be disputed that the water of a stream flowing entirely Within the limits of a man's Zamindari or Inam is as much and as absolutely his property in every sense of the term as the soil over which it flows. With reference to a stream or a river flowing through the lands of a number of owners, it has long been established that such flowing water is not bonum vacans but that it is publici juris in the sense only that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself except in that particular portion which he may choose to abstract from the stream and take into his possession see Mason v. Hill (1832) 3 B & Ad. 304 per Lord Denman and Embrey v. Owen (1851) 6 Ex. Rep. 355. It comes to this. Each proprietor of the adjacent land has a right to the usufruct of the stream which flows through it and in that sense the stream is the common property of all the riparian proprietors. If the Government happens to be a riparian proprietor, it has a right to the usufruct of the river in the same way as other riparian proprietors. I do not understand the provisions of the Land Encroachment Act as laying down that even in those streams and rivers in which the riparian rights of Zamindars or other owners of adjacent lands exist, that a separate and independent proprietary right in the water subsists in the Government entitling it to demand from the owners of the lands on the banks any price it chooses for the use of the water. If that were the correct interpretation of Section 2, the value of riparian rights in this Presidency would be very little indeed, and I do not find sufficient justification for such a construction. On the other hand the clause ' subject always to all rights of way and other public rights and to the natural and easement rights of other land owners' points in my opinion to a contrary inference shewing that the Government's claim to streams, rivers and all standing and flowing water is in the character of a land owner.
19. Let us now consider the nature and extent of the right of user of the Pachayar river as claimed by the Inamdar as a riparian owner. In the first place, by virtue of his proprietorship of the land bordering on the river for a considerable length, he claims the right to conduct a portion of the water by means of channels into his tanks for purposes of irrigation. We may take it that the water so abstracted would not be returned to the river but would for the most part be absorbed in the soil in the process of irrigation. What the length is of these channels or the distance of the tanks from the river is not in evidence. But it is beyond doubt that the present mode of irrigating the inam lands has been in use from time immemorial. It is not alleged that by diverting a portion of the water into the channel, such a diminution is caused in the volume of water flowing down to the lower tenements as to case material injury to their owners, among whom the Government may be included with respect to the ryotwari tract. In fact, it is common ground that this river like many other similar rivers in this Presidency is and has always been used in this way in irrigating lands situated on both sides. In this country, the user of streams and rivers for irrigation through a system of connected tanks which are filled with water obtained by means of channels is a most valuable right and has been recognised from the most ancient days. In fact, it would have been an inconceivable disaster to the country if the water of rivers in this Presidency were allowed to run to waste in seasons of rain when there is abundance of supply and was not stored in large reservoirs and tanks so that it might be utilised according to the requirements of cultivation. Even in England where the rain-fall is much better spread over different parts of the year, the use of natural streams by the riparian owners for purposes of irrigation is fully recognised, no less than manufacturing purposes. The mode and extent of the exercise of a right of this character must necessarily vary with the necessities of each country and should be ascertained mainly with referenced the prevalent usage. Judged by that test, the right of a riparian owner in the country to use a natural stream for purposes of irrigation cannot be said to be confined to any narrow strip of land along the banks. No authority has been brought to our notice which purports to define the limits of this right by the extent or depth of the areas sought to be irrigated. To what depth of the lands on the bank of a stream the right of irrigation extends must depend on the capacity of the stream and the extent of the land of the other riparian proprietors standing in need of irrigation. This is in accordance with the principle laid down in Norbury v. Kitchin (1863) 7 L.T. R 685: 9 Jur. 132 Miner v. Gilmour (1858) 12 Moo. P.C. 131 and White v. White (1906) A.C. 72. In this Presidency, in most cases where the stream is small, the whole or a greater portion of the water is diverted by means of channels into tanks by the different proprietors putting up dams in the streams in turn for some days. If the supply is not sufficient for all the adjacent proprietors, the quantity and extent of land which each proprietor is entitled to irrigate may depend on well-established usage, on mutual arrangement or on the terms of a grant. There is no rule of law in this country so far as it can be ascertained that the right to irrigation by a riparian owner is confined to any particular quantity of land. The criterion is whether the extent or mode of enjoyment claimed is reasonable see Embrey v. Owen (1851) 6 Ex. Re 355 Rameshwar Pershad Narain Singh v. Koonj Behari Pattuk (1878) L.R. 4 A.C. 121. An user which is not objected to and is in fact adopted by and is for the benefit of all the riparian proprietors must, in my opinion, be held to be reasonable and it is not open to a third person such as the Government unless it happens to be a riparian proprietor, to raise any question so far as this is concerned.
20. Then it cannot be said that, where the lands in a Zamindary or an Inam village are cultivated by ryots and tenants, it necessarily follows that only the parcel on the bank in the occupation of a particular individual ryot will be treated as a riparian tenement and not the other holdings in the interior, so far as any question arises between, the Zamindar or Inamdar whose tenants they are on the one hand and the other riparian proprietors on the other. In such cases, where it is the duty and interest of the Zamindar or Inamdar to supply the tenants with water for purposes of irrigation, he must be deemed to be the riparian owner representing the tenants as a body.
21. I may here refer to a very instructive judgment in an American case to which my attention has been drawn and which lends support on the general view of the law as I have expressed it.-60 Lawyer's Reports Annotated 889.
22. Sankaran Nair, J. in Secretary of State v. Janakiramiah I.L.R. (1913) M. 322 has fully discussed the question as to how far the Zamindars and Inamdars are entitled to irrigate their lands, free of charge, from a natural stream flowing through the Zamindari or Inam village with reference to the history of the permanent settlement and the enfranchisement of Inams and the customary law of the land. I agree with his general conclusion that except where it is expressly provided otherwise in the Sanads or title-deeds the Zemindars or Inamdars are entitled to bring into cultivation land which was lying uncultivated at the time of the settlement and to raise additional crops by the user of natural stream to the extent of the quantity lying within the ayacut of those streams as explained at pp. 333 and 334 in Secretary of State v. Janakiramayya I.L.R. (1913) M. 322 without making themselves liable to a further payment whether by way of water cess or other assessment. I further agree with him and with Sadasiva Aiyar, J. in The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389 that no inference can be drawn from the fact that in the sanads or title-deeds the quantity of lands under wet cultivation is mentioned, that the Zamindar or Inamdar is not entitled to irrigate and thus bring into cultivation the waste lands with water of natural streams passing through a village without making himself liable to additional payment. The above view of the law, is also, in my opinion, in agreement with the trend of decisions' of this Court until the date of the Urlam case. See Ponnuswami Tevar v. The Collector of Madura (1869) 5 M.H.C.R. 6 Maharana Fatteh Sangji v. Dessai Kallianraiji Hekoomut Raiji (1873) L.R. 1 IndAp 36 Narasimha Sastrial v. Secretary of State (1891) 1 M.L.J. 167 and The Secretary of State for India v. Perumal Pillai I.L.R. (1900) M. 279.
23. The question whether the use of the phrase 'besides poram-boke' in the Inam title-deed shewing that the river bed is included in the grant, is one mainly of interpretation. It seems to me that no uniform rule can be laid down in this connection' whether river beds were or were not meant to be included in the words ' besides poramboke.' This must depend on the character and size of the river, the extent of the grant and the surrounding circumstances. In cases of small rivers and the streams running through the lands of a few large proprietors, the presumption would be in favour of inclusion of river beds while the phrase may not ordinarily be applied to the beds of large rivers like the Cauvery. See The Secretary of State for India v. Raghunath Thathachariar (1912) 24 M.L.J. 31. In the present case, I should be inclined to hold that as the Inam village Vadagarai did not extend to both sides of the river, no specific intention could be imputed to the Government of granting any portion of the bed of the river.
24. The claim of the Government is also based on the ground that one of the sources from which the Pachayar river derives its water supply is a small hill stream or odai flowing through ryotwari land. It is argued that inasmuch as the water of this stream which may be taken to belong to Government mingled with the water of the Pachayar river it must be deemed to be a case in which the plaintiff's land is irrigated by water of a stream belonging to Government within the meaning of Section 2 of the Irrigation Cess Act. I do not find any warrant for such a wide construction of the section which would mean that because a river happens to receive a supply of water however small, in proportion to the entire volume from a stream running through the Government land therefore any riparian owner using the water of the river must be deemed for sooth to be using water from a stream belonging to the Government because it is not possible to separate the quantity of water introduced by such a stream. The untenable character of such an argument if stated without any limitation becomes obvious when it is seen that it might logically be extended even to cases where surface water from land belonging to Government is drained into a riparian stream. The irrigation which makes a man liable to cess under that section must, in my opinion, be with water derived either entirely or at least to a substantial extent from a river, stream, or channel belonging to the Government. To hold otherwise would be putting a strained and unnatural construction on the words of the' Legislature. I say this in spite of the respect which I owe to the decision of, the learned Judges who decided the Urlam case and those who have substantially followed that judgment.
25. Having thus far indicated my own view of the law which is in accordance with what has been laid down by Sankaran Nair, J. in several cases to one of which in The Secretary of State for India v. Ambalavana Pandara Sannadhi I.L.R. (1918) M. 369 I was a party, I shall now very briefly point out what extent I am free to give effect to it, so far as the question involved in this appeal is concerned. A Full Bench of this Court by a majority (Sadasiva Aiyar, J., dissentiente) held in The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389 in an appeal under the Letters Patent arising from a difference of opinion between Sankaran Nair, J., and Munro, J., that where only one of the banks of the river belongs, to a Zamindar or Inamdar, the water obtained from the river is liable to be assessed under the Act as in such a case the river must be said to belong to the Government. But in a later case reported in The Secretary of State for India v. Maharajah of Bobbili (1915) 30 M.L.J. 168 a Divisional Bench consisting of the learned Chief Justice and Seshagiri Aiyar, J., were of opinion that the decision in the Urlam case which was of another Divisional Bench went too far. They were, however, bound to accept the law as laid down in the decision of Oldfield J. and Bakewell, J., in the Letters Patent Appeal mentioned above but only on the point actually decided in that case, namely, that where only one bank of a river is shown to belong to a Zamindar, he is not entitled to the user of the water of that river for purposes of irrigation free of charge. They felt themselves free to decide otherwise in a case where both the banks at the point where the water was taken were shown to be within the Zamindari limits. I must admit that it is difficult to perceive any logical foundation for this distinction. The rights of a riparian owner which are fully recognised in this country (See Section 7, Easements Act, Section 2 of the Irrigation Cess Act itself and the case above cited) are based not on the ownership of the bed but on the ownership of the adjacent lands on the bank which give the owner the right of access to the stream. No doubt, the owner of the land on the bank is also presumably the owner of half the bed of the stream opposite his land and the owner of land on both the banks is the owner of the entire bed lying between those banks. But the owner of adjacent lands on both sides of a stream has no higher right of usufruct in connection with the tenement on one side than he would have if he did not possess the tenement on the opposite bank. The riparian right is based on the possession of a natural advantage arising from the vicinity of a stream and is like the right of lateral support which a man has for his land from his neighbour's land. See Lyon v. Fishmongers Company (1876) 1 App. Cases 662 Miner v. Gilmour (1858) 12 Moo. 131 and Chasemore v. Richards (1859) 7 H.L. 349. There is no reason so far as I can see for denying the full enjoyment of that advantage to the owner of adjacent lands on one bank. That is however the ruling in The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389 and I agree with, the learned Chief Justice and Seshagiri Aiyar, J. that it should not be extended any further.
26. But I think I ought to mention that there is force in the argument of the learned Vakil for the respondent that since it is not shown that his client has been taking more water than before the mere fact that he has been cultivating more land is not sufficient to justify the Government in levying water cess. It is not the case of the Government that either the channel or the tanks have been widened or deepened, but we are asked to presume that the larger cultivation was due not to a more economical use of the water but to the use of mire waiter than the Inamdar has been accustomed to receive.
27. In the circumstances, the burden was, in my opinion, on the Government, to show, even supposing that the stream could be said to belong to the Government, that the Inamdar has been actually storing in his tanks more water than he was entitled to do under the engagement with the Government at the time of the Inam enfranchisement and settlement. This view is in accordance with the decision in Secretary of State v. Perumal Pillai I.L.R. (1900) M. 279 the principle of which was accepted in Maria Susai Mudaliar v. The Secretary of State for India in Council (1904) 14 M.L.J. 350 though it is opposed to the decision in the Urlam case.
28. I hold therefore that the conclusion of the Subordinate Judge is right and the appeal must be dismissed with costs to be paid within three months from this date. C.M.P. No. 159 of 1916 is also dismissed.
Srinivasa Aiyangar, J.
29. I agree that the appeal fails. I have come to, this conclusion on the ground that the plaintiff is not drawing more water than what he and his predecessors in title have been taking from time immemorial, that the present system of irrigation has been in existence from before the inam settlement and that the plaintiff is now using the existing system of irrigation in the same way as his predecessor was using at the time of the Inam settlement. As the question of the Government ownership of waters, and the construction and effect of the Madras Land Encroachment Act is likely to be decided soon by the Lords of the Judicial Committee for the Judgment of the Judicial Committee, see. 33 M.L.J. 144 it is unnecessary for me to express any opinion on these questions in this case.