1. The suit is by the present owner of ChockamT patti Mitta, one of the mittas which constituted the Chockampatti ( Zemindari. The Collector of the District has imposed certain water-cess on lands cultivated with second crop in the initta. These lands are irrigated from tanks, the primary source of supply to which through 2 channels is the Karuppanadi river which we understand is a jungle stream running, at the place where the channels take off, in Government land. For the purpose of these appeals the tanks Nos. 14 to 21 on the plan may be considered apart from the other two, Nos. 22 and 23. Tanks Nos. 14 to 21 receive thetr supply through the channel called Perunkal. The tanks Nos. 22 and 23 receive their supply through the channel called Papankal. The Subordinate Judge has granted the prayer of the plaintiff (1) as regards remission of water-cess charged in respect of tanks Nos. 14 to 21 and (2) as regards the injunction asked for in connection with these tanks so long as the second crop cultivation is raised with the customary water to which the plaint mitta has been found entitled by the Subordinate Judge. The Subordinate Judge has not granted any injunction in respect of tanks Nos. 22 and 23, but he has given the plaintiff a decree as to remission of water-cess charged under these tanks.
2. The plaintiff appeals in A.S. No. 85 of 1902 in so far as the injunction in respect of tanks Nos. 22 and 23 has not been granted.
3. The defendant has appealed in A.S. No. 1 16 of 19C2 in so far as a decree has-been given against him.
4. The mitta is part of a Zemindari originally granted on a permanent Sannad in 1803. It was sold for arrears of revenue in 1836 and was purchased by Government but.was ' restored' again in 1859 under a permanent sannad to the son of the previous Zemindar. In the interval between 1836 and 1859 (Fasli 1268) Government executed certain repairs to the Perunkal in consquence of which it is alleged that the supply of water to the tank Nos. 14 to 21 was increased. It should be mentioned that, water from the Karuppanadi flows naturally into the Perunkal channel. There is no dam across the river. It is the case for the defendant that in consequence of the increased supply referred to above in the tanks Nos. 14 to 21, second crop cultivation has been extended and it is on this extended cultivation, that the defendant purports to have imposed a water-cess. That there has been extension of cultivation is beyond a doubt, but the evidence points to the conclusion that most of it took place prior to 1859 and anyhow there are no figures showing the extent of second crop cultivation before and after 1859. The plaintiff's case is that the Zemindari was ' restored' in 1859 with all the rights to water which then existed. His case is that the flow of wait which he receives now is precisely what he received in 1859 and so long as he gets only the supply he is entitled to by long-established user he argues that Government has no right to impose upon him any water-cess even it there is an extension of cultivation.
5. It is a fact that no improvement in the water-supply to tanks Nos. 14 to 21 has been effected since 1859.
6. It appears to us that the most important point in these appeals is the question whether the Zemindari was restored in 1859 with the rights of water as they then existed in the improved state of the channels. We are of opinion that it was restored with those rights. The Perunkal channel supplies both Government and Zemindari tanks. The ayan ryots arid the zemin ryots take the water in the channel by turns of five days each. It is also a fact that the channel is being repaired at the joint expense of Government and the plaintiff. There is no dispute about this and it is not denied that this custom is being rigidly adhered to now as it always has been. 'When the Government owned the Zemindari the water was divided as it is now. What then was the position in 1859 when Government ' restored' the Zemindari to the son of the former owner? It is simply the case of the owner of all the lands under a channel restoring a portion to a former owner. In the absence of a special contract to the contrary the law will imply that this restoration or grant, carried all rights of water and other easements of necessity which existed at the time the restoration or grant, namely, in 1859. (Vide Morgan v. Kerby I.L.R. 2 M. 46 and Chanham v. Fish 37 R.R. 655 also Watts v. Kelson L.R. 6 Ch. p. 166.) It is argued for the defendant that the zemindar in 1859 after the restoration could not be in a better position than he would have been in if he had never lost his zemindari. We cannot attach any importance to this argumentA new sannad was granted in 1859. It was not in all respects the same as the old one. Act VII of 1865 was not then in existence. But it Government did not then wish to restore the zemindari as it existed with all the rights of improved water-supply, that was the time to introduce the reouired alterations in the sannad. The rights of the Zemindar or his ryots to their accustomed mode of supplying their tanks are not referred to in any way at the time of restoration. We are of opinion therefore that the zemindari was restored with all its customary rights and easements. And if that is so the case is clear in so far as the tanks Nos. 14 to 21 are concerned. The following remarks of Sir G. Mellish, L.J. in Watts v. Kelson 6 Ch. A. p. 166, are applicable to the present case. ' We are of opinion, however, that what passed to the plaintiff was a right to have the waterflow in the accustomed manner through the defendant's premises to his premises and that when it arrived at his premises he could do what he liked with it.' In other words, the plaintiff is entitled to the customary supply to his tanks and when the water arrives in his tanks he can do what he likes with it. This is the view taken in The Secretary of State for India in Council v. Perumal Pillai I.L.R. 24 M. 279 a case which is on all fours with what is now discussed. We are of opinion therefore that the Lower Court's decree is right so far as tanks Nos. M to 21 are concerned. The right now decreed to the plaintiff is not at all inconsistent with the common law rights claimed by Government to the water flowing in all natural channels. The rights so claimed by Government and admitted by this Court are clearl)7 set out by Innes, J., in Ponnusawmi Tevar v. The Collector of Madura 5 M.H.C.R. 6. 29. 'I quite admit that the Government of this country has at all times assumed to itself and has the right in the interests of the public to regulate the distribution for use of any portion of the water flowing in the natural channels in which rights have not as yet been acquired and to this extent the claim of the 1st defendant on behalf of Government cannot be gainsaid. But 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 irrrigation 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 in. the channel.' In many respects the facts in Ponnusami Tevar v. The Collector of Madura 5 M.H.C.R. 6 are similar to the present one. The plaintiff in that case claimed a right to all the water flowing in a certain channel. The report states : 'There is no evidence as to how the channel came to be constructed or the date of its construction, but it is shown satisfactorily and not denied that for a long series of years it has conveyed water from the Vijay river to the Puvandi tank. The land through which it runs before it reaches Puvandi belongs to Government villages.' It was held in that case at p. 19 that 'there can be no doubt that the right to an easement in the flow of water through an artificial watercourse is as valid against the Government as it is against a private owner of land.' The Court held that the plaintiff had a right of easement to the entire flow of water in the channel. The right which Government can claim or owns in the water flowing in the natural channels of the country must be) subject to rights already acquired in such water. This is the principle laid down in Kristna Ayyan v. Venkatachella Mudali 7 M.H.C.R.p. 60 and in Ramachendra v. Narayanasami I.L.R. 16 M. 333. What the plaintiff's rights are in the Perunkal channel we have stated.
7. The case of tanks Nos. 22 and 23 is different. In this case Government has carried out improvements to the source of supply. The tanks are supplied primarily from the Karupunadi through the Papankal channel. We take it that the Karupunadi is a Government source and by virtue of his engagements with Government the plaintiff is entitled to a certain supply of water without paying for it, but the burden of proving the extent to which he is entitled lies on the plaintiff and if he fails to sustain this burden his suit to this extent must be dismissed. The 1st witness for the plaintiff proves that a head-sluice was built to the Papankal about 15 years ago and other improvements have been effected by Government in the distribution of the water-supply. A channel superintendent is also appointed by Government. The witnesses for the plaintiff further prove that extension of wet cultivation has taken place. The Subordinate Judge very properly states that the evidence for the plaintiff does not prove what is the customary supply to which the plaintiff is entitled in respect of tanks Nos. 22 and 23 and it does not prove what was the exact extent of second crop cultivation in 1859. Under these circumstances the Subordinate Judge has, Ave think, properly refused to grant the injunction prayed for by the plaintiff. He has, however, directed the refund of the, water-cess charged by the defendant. We think this portion of the Jower court's decree cannot be sustained. If the evidence was insufficient, as no doubt it was, to show what water precisely the plaintiff was entitled to by virtue of his engagements, then it is difficult to see how the. imposition of water-cess on the second crop charged by the Collector can be held to be unlawful seeing that the water came from the Karupunadi which is a Government source. We must therefore modify the decree in so far as it directs refund of water-cess charged under the tanks Nos. 22 and 23.
8. Appeal Suit No. 85 of 1902 is dismissed with costs. The plaintiff is not entitled to the injunction prayed for in respect of tanks Nos. 22 and 23.
9. In Appeal Suit No. 116 of 1902 the appeal is dismissed with costs in so far as it concerns tanks Nos. 14 to 21. It is allowed as regards tanks Nos. 22 and 23 in so far as it claims that the charge of the watercess should be allowed. The lower court's decree directing a refund of the watercess will be modified accordingly. The parties are to receive and bear proportionate costs on this part of the appeal.