1. The plaintiffs are the inamdars of the vilkge called Adambur in the taluk of Arantangi in the Tanjore District. There is a tank called the Adambur tank situated wholly inside this village. This tank irrigates the lands which are situate in this village. On some of the wet lands second crop was raised. The Government levied water cess for the reason that a channel known as Ammanam Kolakkal coming from north feeds this tank and that that channel is Government channel. A further point was raised that the inamdars, the plaintiffs, have raised the level of the surplus weir of that tank. It would appear that below the suit village there is a Government village called Sadayamangalam and that the Sadayamangalam tank receives the surplus water of the Adambur tank. On these two grounds, namely, that the Ammanam Kolakkal was a Government channel and that the height of the surplus weir of Adambur tank was raised, the levy of water cess is sought to be justified. It is not disputed, and there is no reason to suppose that it is otherwise, that the Adambur tank being situate wholly within the inam village passed to the inamdars under the inam grant. So also that portion of the channel which lies wholly within the Adambur inam village. The Ammanam Kolakkal admittedly comes from the north and enters the suit village at a point on the northern boundary of the village and after flowing to some extent as a channel it enters the Adambur tank. Another question was raised whether this channel did not take a south easterly bend and enter the Sadayamangalam tank. That question has been found against the Government-respondent and there is no further question raised about it. The only grounds upon which the levy of irrigation cess is justified are the two grounds mentioned above.
2. Under the decisions of this Court in Tahya Ally Saheb v. The Secretary of State (1940) 44 C.W.N. 665 and Secretary of State for India v. Vidya Varada Thirtha Swamigal (1940) 44 C.W.N. 665, ordinarily the tank inside a village would pass to the inamdar and so also an irrigation channel unless there is something in the circumstances of the case to enable the Court to draw an inference that on the particular facts of the case there was a reservation by the Government in its own favour of the particular tank or channel. In this case there is no such suggestion and there is no finding by the lower Courts that the tank has been reserved 'by the Government. So the tank and likewise that portion of the channel which is situated wholly inside the limits of the inam village, pass to the inamdars. That being so, the inamdars are entitled to irrigate more lands by thrifty use of the water that enters the tank and also to raise a second crop on what was till then a single crop wet land. Assuming that the Ammanam Kolakkal channel is a Government channel before 'it enters the suit village,' there is no justification for the levy of water cess because the channel after it enters the village and the tank are the property of the inamdars. The only ground which would justify the Government in levying water cess is that the channel Ammanam Kolakkal was interfered with at its entry in to the village or above and that a larger quantity of water is taken from that channel than what was hitherto flowing into the suit village. There is no suggestion that the Ammanam Kolakkal has been in any way interfered with. Under the first proviso to Section 1 of Madras Act VII of 1865, where a Zamindar or Inamdar or any other description of landholder not holding under ryotwari settlement is by virtue of engagements with the Crown entitled to irrigation free of separate charge, no cess under the Act shall be imposed for water supplied to the extent of this right; As pointed out by the learned Judges in Tahya Ally Saheb v. Secretary of State (1940) 44 C.W.N. 665, basing their judgment on Mahalakshmamma Gam, Proprietrix of Urlam v. The Secretary of State for India (1940) 44 C.W.N. 665 it is only if there is evidence to show that more water was taken by the plaintiff than what was being taken before that water cess can be levied by virtue of Section 1 of Act VII of 1865. In that case it was found by the District Judge that the plaintiffs had raised the height of the bund of the tank, that the capacity of the tank had increased and that therefore more water was stored in it than before. Dealing with this finding Madhavan Nair, J., stated this at page 778 :
I may state at once that, in my opinion, the finding of the District Judge that the storage of the tank had increased does not in any way affect the decision of this question, in view of the admitted fact already mentioned that the plaintiffs have not in any way interfered with the supply channel of the tank and, what is most important of all, the fact that there is no evidence to show that more water is now being taken by the plaintiffs for irrigation.
3. The expression ' more water ' here means more water from the supply channel of the Government. As pointed out by the same Judge:
The law is well settled that permanent settlement sanads and engagements arising out of inam settlements are engagements contemplated by Act VII of 1865. As regards the precise extent to which the Zamindars and inamdars were entitled to claim exemption under the cover of these engagements, viz., as to whether the right of free irrigation extended only to the extents specified in these engagements and to nothing more, there has been for a long time acute difference of opinion among the learned Judges of this Court.
4. The question was finally settled in Secretary of State for India v. Vidhya Varada Thirtha Swamigal and the Urlam Zamindari case2. In the case before him, Madhavan Nair, J., pointed out that the same principles must apply to the case of inam villages. In the Swamigal case, decided by the Judicial Committee the same principles were applied. For the reason that the supply channel Ammanam Kolakkal has not been interfered with and that no more water is being taken from that channel which is Government channel into the suit tank the levy of water cess must be held to be illegal. The mere fact that the storage capacity of the tank has been increased by either strengthening the bund or increasing the height of the tank bund, is, as pointed out by Madhavan Nair, J., no ground for the levy of water cess.
5. The real complaint as put before me by the learned Government Pleader for the respondent is that the surplus weir has been increased in height and that therefore the water which used to flow into the Sadayamangalam tank has been interfered with. It is said that, but for the increase of the height of the bund and of the surplus weir the water in the Adambur Tank after it reached a particular level, would flow out into the Sadayamangalam tank and that by increasing the height of the surplus weir some portion of the water is prevented from entering the Sadayamangalam Tank. If that is so, the respondent may have other remedies. For example, it may have a right to compel the plaintiffs to restore the surplus weir to its original height; but we are not concerned with all those questions in this case. It is enough to say that the levy of water cess is not justified.
6. I reverse the decisions of both the lower Courts and grant a decree as prayed for with costs throughout. Time for the payment of costs three months.
7. Leave to appeal is refused.