1. These are second appeals against the decree in A.S. Nos. 16 and 17 of 1930 of the District Judge of Tinnevelly which are cross appeals against the decree in O.S. No. 101 of 1928 of the District Munsif of Tinnevelly. That suit was filed by four plaintiffs against the Government for a declaration that the Government is not entitled to levy water cess on the lands described in the plaint second schedule, for a refund of cess collected and for an injunction. The District Munsif decreed the suit and on appeal his decree was confirmed by the District Judge. The Plaintiffs though they succeeded in the first Court filed an appeal (A.S. No. 17) against a finding of the District Munsif. It is doubtful whether such an appeal lies as in all such cases the respondents can support the decree on the ground that any finding of the lower Court which is against them ought to have been decided in their favour. However the District Judge considered the appeal and confirmed the finding of the District Munsif. The Government filed S.A. No. 768 of 1931. The plaintiffs as in the lower appellate Court filed S.A. No. 1059 of 1931 against the finding of the Court below. As I already said, this is unnecessary. It is open to the plaintiff to show the incorrectness of the finding in the course of the argument of the main S.A. No. 768.
2. These Second Appeals have been argued by Mr. Rajamannar who appeared for the Government Pleader accepting all the findings of fact of the Courts below and he addressed to us an argument on what he claimed to be a pure question of law. It is therefore convenient to state the findings of the Courts below.
3. The suit lands which are 17 odd acres in extent are part of a block known as Melpathu nanja lands which are part of the inam village of Karaiyiruppu. The village was enfranchised in 1865. Ex. B is the Inam register. In this register 76 acres 12 cents of the lands in the village were recognised as wet lands. At the time of the Inam Settlement the situation of the irrigation system connected with the village was as follows : At some distance west of the village there is a tank called Chatrampudukulam. There is a channel from this tank taking off by a sluice in the middle and going in an eastern direction called Nadumadaikal. This is joined by a channel flowing south from another tank called Settikulam. The combined channel runs across two roads with devious paths up to the limits of the suit village. There it is joined by a surplus channel from Settikulam. This last combined channel finally leads into a tank of the suit village. In the channel so leading to the tank there are no sluices permitting water to be taken by side channels. In the year 1913 proceedings under the Survey and Boundaries Act of 1897 for the demarcation and survey of the mamool wet lands were started and after their completion a notification was published to that effect (vide Ex. XV dated 1st November, 1913). A notice was also sent to the plaintiffs that certain lands were demarcated as mamool wet in the suit village. (Ex. XVI dated 26th October, 1913). No appeal was filed by the plaintiffs; still it is not argued before us by the Government Pleader that the plaintiffs are precluded thereby from questioning the correctness of the survey. The 76 acres 12 cents to which the plaintiffs would be entitled as mamool wet under the Inam register were all demarcated as under the tank. It does not appear that there was any protest made at the time or that even a suggestion was made that there were other mamool wet lands abutting on the channel. In the year 1914 the suit lands were sold to the present plaintiffs under the sale-deed Ex. LL dated 17th August, 1914. In this sale-deed the suit lands were described as melvarapathu water rate inam Punja. Thus from 1914 onwards it is clear that the plaintiffs themselves were under the impression that the suit lands were liable to pay water cess. As to the condition of things prior to 1914 the learned District Judge mentions the following facts in paragraph 22 of his judgment. Ex. F a hypothecation deed of 1867 mentions three kettas or about five acres in Melpathu block as nanja lands. Ex. C a sale certificate of 1873 mentions 106 acres as the total area of the nunja lands Ex. EEE of 1884 and Ex. E of 1889 and Exs. UU and ZZ of 1904 and 1907 describe the Melpathu lands as nanja lands. The plaintiffs claim that the Melpathu lands were always cultivated as wet by cross-bunding the channel and rely upon the documents just mentioned in support of their statement. There is no doubt that for some years the Melpathu lands have been cultivated wet by cross-bunding the channel but the lower Courts find and this is a finding of fact with which we cannot interfere - that at the time of the Inam settlement they were not wet lands and cannot be now regarded as mamool wet lands. The truth seems to be that about 5 acres of Melpathu lands were cultivated as wet in 1867 by cross-bunding the channel. The extent has been gradually increased until latterly they have become nearly 34 acres. Both the lower Courts find that cross-bunding the channel is the only way of cultivating these lands as wet. It appears that this gradual increase of wet cultivation of the Melpathu lands did not prejudice anybody because, though there are Government lands further beyond the tank of the suit village, to which the channel carries the water of Chatrampudukulam and Settikulam, still as the Government improved the irrigation system by converting the mud by wash of Chatrampudukulam through which the surplus water used to flow to Settikulam into a permanent structure and similar other changes, the water supply has become so abundant that nobody has suffered by the increased wet cultivation by the plaintiffs. In the lower Courts it was argued' on behalf of the Government that by reason of these improvements effected by the Government the plaintiffs ought to pay irrigation cess for the lands in Melpathu block. As the Government is in charge of the whole system and a portion of it is specially intended for the benefit of the suit village, the Government was under the duty of keeping it in good repair. I do not think the fact of their keeping it in an efficient condition entitled them to collect water cess if otherwise they are not entitled. The Courts below were of opinion that on. the facts as above described the present case falls within the-principle of the decision in the Urlam case, Prasad Row v. The Secretary of State for India . That the principle of the Urlami decision may be applied to inam villages if there are appropriate facts was held by me in Yahya Ally Saheb v. The Secretary of State : AIR1928Mad97 which was followed by Srinivasa Aiyangar and Curgenven, JJ. in Sevugan Chettiar v. Secretary of State : AIR1928Mad261 and by Waller and Krishnan Pandalai, JJ. in an unreported case (dated 10th September, 1931 in S.A. No. 435 of 1928). We have now followed these decisions also in S.A. Nos. 309 and 310 of 1928 (connected cases). The learned Government Pleader argued on the footing that these decisions were right. He contended that in this case there is nothing in the physical' condition of the irrigation system from which an inference of the grant of an easement in favour of Melpathu lands can be made corresponding to the sluice gates of the Mobajam channel, of the Pelavei channel, of the Jalamour channel, and of the Lukulam channel as described at page 900 of the Urlam decision. If there were madais or sluices in the suit channel at the time of the Inam settlement they might correspond to the sluices gates referred to in the Urlam case Prasad Row v. The Secretary of State and one may say that they furnish the physical conditions with reference to which the grant of an easement might be implied and the extent of it might be measured. But we have none such. It is not suggested that the lands are on an equal level with or lower than the channel so as to enable water to be drawn off easily from the channel. It is admitted that the lands are on a higher level and it is also admitted that it is impossible to draw water from the channel except by means of cross-bunds. Cross-bunds are such as can be occasionally put across the channel. They are not such as can be seen at any time when one goes there. In my opinion there can be no analogy between putting temporary cross-bunds in this way and permanent head sluice gates existing from the time of the Permanent Settlement as in the Urlam case, Prasad Row v. The Secretary of State . It may be in a case where the channel system terminates in an inam village taken with other circumstances that all the water in the system after it enters the village belongs to the Inamdar though even there the final answer must be dependent upon various circumstances. For instance if one portion of the village belongs to one Inamdar and another portion of the village belongs to another Inamdar and the whole mamool wet is demarcated as belonging to the second Inamdar, I doubt if the first Inamdar can add to the wet cultivation by cross-bunding the channel for such a user may diminish the quantity to which the second Inamdar is entitled. At present all that I observe is that it may be possible in such a case with reference to other facts to hold that the Inamdar is entitled to all the water and may increase his cultivation to any extent without any liability to pay water cess to Government for it may be possible to imply a grant of all the water entering the village by the economic use of which the Inamdar can cultivate a larger extent than was actually cultivated wet at the time of the Inam Settlement. In the present case it is admitted that the channel carries water supply to Government village further on and though at present there seems to be no apprehension of any diminution of water supply, the circumstance shows that a grant of the water in the channel in the sense that the Inamdar may draw off water by cross-bunding the channel at any place he likes cannot be implied. Once such a grant is implied it is difficult to place any limit on the number of cross-bunds that can be put up across the channel. There could have been no such engagement by reason of the Inam Settlement.
4. The result is that the appeal of the Government must be allowed and the plaintiff's suit dismissed with costs throughout in S.A. No. 768 of 1931.
5. S.A. No. 1059 of 1931 is dismissed. Each party will bear its own costs as to costs in S.A. No. 1059 of 1931 and in A.S. No. 17 of 1930.
Venkatasubba Rao, J.
6. I agree.