1. The questions for decision in all these appeals except Appeal No. 41 of 1905, which is for costs only, relate to the right claimed by the Government to charge a water cess under Act VII of 1865 (Madras) on lands in the Urlam Zemindari and lukulam Agraharam in the Chicacole Taluk of the Ganjam District, irrigated from four channels, the Jalmuru, Polaki, Lukulam and Mobagam channels, all of which take off from the left bank of the river Vamsadhara.
2. The cess objected to by the Zemindar and Agraharamdars has been levied in some cases on irrigated second crop grown on land classed as ' dry ' or unirrigated land. The Zemindar and the Agraharamdars claim the right to irrigate free of cess all the land ' dry' or ' wet' which the channels will command, and as many crops as can be raised thereon.
3. The Government will be entitled under the Act of 1865 to charge water cess if the water with which the lands are irrigated is supplied from a river or channel belonging to, or a work constructed by, the Government, and if there is no engagement between the person using the water and the Government by which the irrigation is to be free of separate charge.
4. All the lands commanded by the four channels in question were included in the Havelli lands, which came into the hands of the East India Company in 1765. In 1803 they were divided into four lots and were all disposed of by permanent settlement with the bidder offering the highest ' premium' at an auction. Of the four lots three were soon afterwards, in 1809 and 1810, sold up for arrears of revenue, and two of them, Jalmuru and Nagarakatakam, were bought by the Government: the third, Urlam, was purchased by a predecessor of the present Zemindar. The fourth lot, Polaki, did not come into the hands of the Government until 1850. The District Judge finds that the Jalmuru, Polaki and Lukulam channels are channels belonging to the Government and, therefore, that water cess may be charged upon land irrigated under them, but that the Mobagam channel does not belong to the Government and the Vamsadhara river which supplies it does not belong to Government, and consequently that no charge can be made for water supplied from that channel.
5. Both sides have appealed against these decrees in so far as they injuriously affect the rights they claim.
6. The Zemindar claims to be owner of all the channels so far as they lie within the limits of the Urlam Estate, and though the answer to the question, who is the owner of the channel beds, may not materially affect the decision of these appeals, I have thought it best to deal with the question as it has been fully argued. The Zemindar has at different times made inconsistent allegations concerning the origin of the channels, at one time alleging that they are natural branches of the Vamsadhara river and at another that they were dug by previous Zemindars. It is clear that the latter allegation cannot be accurate, for it is shown by Exhibit LIV that all four channels were in existence before 1792, that is to say, before the Havelli lands were settled as Zemindari land. Nor is there any evidence to support the former suggestion. What evidence there is-there is not much- points the other way. In 1854 Captain Rundall writes of the channels as old native works excavated with a great fall in their beds and gradually enlarged by the action of the unregulated volume of the water passing along them (Ganjam District Manual, page 253). Exhibits G (1826), C (1854) and E( 1889) shew that some of the channels have always been regarded as artificial, and I think it must be taken, in this state of the evidence, that all are artificial channels. At the date of the auction in 1803 they watered Havelli lands and certain inams, but when the Havelli lands were permanently settled the right to collect the dues payable by the inamdars was also alienated to the Zemindars. Thus it may be said that the only lands watered by the channels after the permanent settlement were Zemindari lands.
7. Now it is contended on behalf of the Government that when the Havelli lands were divided into lots and transferred to Zemindars the channels were reserved in the hands of the Government, and on behalf of the Zemindar that they were alienated with the lands.
8. There is nothing in the 'Sanad,' granted to the Zemindar at the permanent settlement, which helps to elucidate the matter. No mention is therein made of channels or water courses. In the instructions to Collectors issued in 1799 which form an appendix to the well known '5th Report from the Select Committee on the affairs of the East India Company' it is stated to have been the intention of the Company to leave the construction and care of the water courses entirely to the Zemindars unless it should be thought that the works were such as, for special reasons to be stated by the Collector, ought to be retained under the care of the Government (5th Report, Volume II, Page 331, paragraph 59). We have not been shewn anything in the evidence to indicate that any channels or works in the Havelli lands were so reserved, nor does it seem probable that the Government would at that time have deemed it necessary to reserve a channel merely because it watered the lands of more than one Zemindar. The Zemindars could settle the distribution of the water according to custom or by arrangement. Ambalavana Pandara Sannathi v. Secretary of State for India,I.L.R. (1905) M. 539 a case relied on by the Government, is distinguishable, for there the channel in question irrigated lands other than inarn lands, and it was held unlikely that in that case the grant of the inam carried with it the grant of the channel.
9. And, so far as appears from the evidence, the Government did not, until some of the property came back into its own hands, exercise any control over, or in any way interfere with, any of the channels. The Jalmuru and Nagarakatakam estates quickly returned to the ownership of the Government, but Polaki remained a Zemindari until 1850, and beyond the authorisation of the removal of the head of the Polaki channel to a point on the bank of the river within a Government village, there is nothing to shew that the Government interfered with this channel any more than with the others. After the re-purchase of the Polaki estate we find the Government controlling and directing the improvement, maintenance and repair of all the channels, but after the re-purchase of the Polaki estate the Government had a substantial interest in all, as considerable areas of ryotwari land were irrigated by all. On the whole the evidence seems to me to support the contention that the beds of the channels were not reserved by the Government at the permanent settlement but passed with the lands to the respective purchasers in so far as they lay within the limits of the land purchased by each, to the same extent and in the same way as tank beds, village sites and other poramboke lands. That, however, as I have already said, does not decide the questions at issue in these suits. It does not follow because the Zemindar provides the necessary channels to enable the irrigation of the Zemindari lands, that although those channels carry water supplied from a river or channel belonging to the Government, the irrigation is nevertheless exempt from water cess.
10. It is argued, however, if I understood Mr. Ramachandra Aiyar aright, that the non-reservation of the channel beds is evidence that the grant was intended to convey the right to use all the water flowing in the channels without interference or charge, that is to say, is evidence of an engagement with the Zemindar freeing all the land commanded by the channels from separate charge for irrigation. But I do not think we can, from the non-reservation of the beds, presume anything more than that the Government fixed the revenue with reference to the extent of land under irrigation at the time: we have none of the permanent settlement accounts before us and no evidence that the peshcush of the Zemindari was fixed with a view to any possible extension of irrigation. Statements such a? those to which we have been referred in the 5th Report, expressing a hope that a permanent settlement would have the effect of improving and extending the cultivation of the country, are not evidence of an agreement in any particular case to permit free irrigation from Government sources of water supply.
11. The abstention of the Government from charging water-cess until 1901 is adduced as evidence of an agreement, but does not help the Zemindar. When the origin of title is not known, as in the case of some inams granted before the permanent settlement, the fact that irrigation has been permitted free of charge for a series of years may be evidence of a lost grant, but in the present case we know that before the settlement in 1803 the Government had the full rights of owner (apart from ryot's, if any) in all the land and water-courses, and we know what is contained in the Sauad under which the Zemindar holds. There is, therefore, no room for presuming another grant of irrigation rights.
12. It was suggested that an agreement between the different Zemindars may be presumed, but that, if anything, could bind the Government as re-purchaser only so far as it relates to rights in the Zemindar from whom the purchase was made : the right to make a separate charge for irrigation, if it then existed in the Government, was not sold to the Zemindar.
13. There is a quantity of evidence as to the construction and repair of works in the different channels, but I do not think it is of great significance in the present case. I will take it in favour of the Zemindar that the works constructed and the repairs executed by the Government were to secure a supply of water for irrigation principally for the benefit of the ryotwari lands under the channels and the expenditure on such works and repairs can be roughly apportioned between the Government and the Zemindar as proportional to the areas of ryotwari and zemindari land respectively commanded by the channels ; but it does not seem to me that that helps the case of the Zemindar. An arrangement of this kind for the upkeep of the channels by the parties interested might be equally just and fair whether the water which reaches the land is supplied free of charge or has to be paid for.
14. Then it is urged that we have the admission of officers of the Government that the irrigation is to be free of charge. It is not contended that these admissions bind the Government but only that they are evidence in support of the existence of the suggested engagement.
15. In 1886 the question of charging water rate was raised and the Collector expressed an opinion that the Lukulam and Mobagam channels should irrigate free of charge on the ground that they were maintained and repaired by the Zemindar and Agraharamdars. In 1893 the Zemindarni claimed the right to irrigate as much as she liked without separate charge, and the Collector was of opinion that no charge should be made : he took the ground that documents shewed that the Zemindarni had the right she claimed, and that in the absence of a regular survey of the zemindari it could not be ascertained whether or not the area then under irrigation exceeded the area shewn in the ' gudikat' accounts as irrigable. (Exhibit FF).
16. The documents on which the Collector relied were, first, an agreement between the Polaki and Urlam Zemindars in 1842 ; we do not know the purport of this agreement, but so far as I can see, it could not affect the Government to levy water cess though it might affect the right to regulate the flow of water in the Polaki channel to the lands of the Urlam Zemindari. Secondly, some correspondence in 1861 in the course of which the Government Engineer directed that water was to be allowed to the Zemindar ' for present and future crops to the end of the year' as usual. We do not know the grounds on which the Board of Revenue accepted the Collector's recommendation. They are not detailed in Exhibit R 1, but so far as the right to irrigate second crop was in question the Collector's view that the Zemindar's right was proved must have been accepted; justification for the result, as far as the extension of irrigation to dry lands was in question, is found in the impossibility of ascertaining the area of the extension without a survey which apparently was considered not worth the expense involved.
17. There is in all this no evidence with indicates any engagement with the Government other than that which can be inferred from the Permanent Settlement, namely, that the peshcush being fixed with reference to the area of land then under irrigation no further charge for the use of water should be made in respect of that area. (As to this see correspondence XXIV series).
18. In the absence of any more extensive engagement then, it has to be decided whether the Urlam Zemindari is supplied with water from a river, stream or channel belonging to the Government.
19. I have little doubt that it is so supplied.
20. Mr. Sundara Aiyar relied on Act III of 1905 as declaratory of the law and I did not understand Mr.RamachandraAiyar to dissent from his contention on that point. His argument was that the Act left the law as it was before except in the matter of encroachments on land.
21. Bat the provisions of Section 2 are clear enough and we cannot ignore a declaration contained in that section simply because the other provisions of the Act deal principally with the question of encroachments on public land. So far as this case is concerned the provisions of Section 2 amount to a declaration, that, subject to easement and natural rights of other land-holders, all standing and flowing waters which are not the property of any one else are the property of the Government. Now clearly the waters of the Vamsadhava river do not belong to any one else: the owners of land on the river do not own the water: their natural right as defined by the Easements Act is saved by Act III of 1905, but it is not contended that the water is their 'property.' It follows that it is the property of the Government.
22. And if the body of water forming the river is the property of the Government, the river, it seems to me, belongs to the Government within the meaning of Act VII of 1865, even though the bed may be vested in the owners of land along the banks, so as to give them the right to accretions or ' lankas ' forming therein. The Vamsadhara river is undoubtedly a natural stream, and the definition of a ' natural stream' given in the Explanation to Section 7 of the Easements Act indicates that in the eye of the law the stream is the flowing body of water-and a 'stream' was defined by Lord Watson in M'Nab v. Robertson (1897) A.C. 139 as ' a body of water having as such body a continuous flow in one direction.'
23. In this view it becomes unnecessary to discuss the question whether the bed of the Vamsadhara belongs to the Government as being the bed of a navigable river. It may be that for a portion of its course the land-owners on either bank have proprietary rights in the bank and bed ; that, in my opinion, will not prevent the river from being a river belonging to the Government within the meaning of Act VII of 1865.
24. The District Judge seems to be of opinion that it is not the river but the artificial channels which are to be regarded as the source of supply within the meaning of the Act VII of 1865 : I did not understand that Mr. Ramhchandra Aiyar supported that view ; he rested his case in regard to the river on the contention that the river bed did not belong to the Government.
25. It remains to be seen to what extent the levy of water cess is lawful in the present cases, and here it is desirable to deal separately with the different appeals.
Appeal. No. 66 of 1905.
26. Appeal 66 of 1905 is an appeal by the Zemindar from the decree of the District Judge in Original Suit No. 3 of 1904 dismissing a suit to recover money paid as water cess on Zernindari jerayati land irrigated for second crop from the Polaki, Jalmuru and Lukulam channels.
27. The irrigation accounts (see for example Exhibit XC) on which the charges are based shew that the second crops in question are not what are ordinarily known as ' wet' crops, i. e., crops requiring constant irrigation : they are crops irrigated by one or two floodings of the ground, principally green gram and gingelly, and if it be found that crops of this kind were grown and irrigated at the time of the permanent settlement, we must imply an enagagement to make no separate charge for irrigation in the future.
28. There is naturally not much evidence now, in the absence of any accounts prior to the settlement, and the abstention of the Government from making any charge for so long a period after the enactment of Act VII of 1865 has placed the Zemindar in a difficult position; but the burden is on the Zemindar to prove the extent of his right (Maria Susai Mudaliar v. The Secretary of State for India in Council (1904) 14 M.L.J 354) and, in my opinion, the evidence is insufficient to discharge it. At the most ,the evidence shews that it is probable that some land in the Zemindari was before 1803 cropped with second crops such as are now grown therein.
29. Exhibit B (1823) shews that spring crops were watered in Kottapolavalasa and probably in Kabakam in that year. In Exhibit D (1855) the inamdars of Lukulam complain that much water is taken to grow spring crops in Polaki village which ought to come to their channels. In Exhibit O (1861) the Engineer directs a subordinate to make provision for the irrigation of' present and future crops ' to the end of the year. There is also evidence that at the inam settlement about the same year second crops of ' green gram, &c.;' were very generally grown on the inam lands. The District Judge relies on a remark at page 232 of the District Manual as indicating that the raising of a second crop is exceptional, but that remark, it seems to me, refers only to second crops of paddy and sugar-cane, the staples referred to in the preceding paragraph. Some passages on page 238 are more relevant to the present case. Second crops of green gram, it is there stated, are sometimes raised on paddy land when there is water : and again wet lands are used for oil seeds in April and May. I have already remarked that the second crops on which the charge is levied are principally green gram and gingelly (an oil seed crop).
30. In Exhibit LXIV (1810) the Collector informed the Board of Revenue that Urlam Zamindari was then reckoned one of the best, if not the best of the estates in the Chicacole Taluq, and from Exhibit XXIV we find that it was the opinion of the officers of Government that the peshcush was fixed at a high rate.
31. We get no aid from the practice of the Urlam Zemindar: the rents paid by the ryots were in 1884 fixed ' at conventional rates not based on any ascertained principle' (Exhibit XXIX), and we have nothing before us to shew whether these rates prevailed at the time of the Permanent Settlement or are calculated so as to give the Zemindar a share of the profits of two crops.
32. I do not think there is any other evidence on this point to which we have been referred, and it is impossible to differ from the District Judge's conclusion that we have not enough to shew that the charge of water cess on second crop jerayati is not legal. Appeal No. 66 of 1905 must, therefore, be dismissed with costs.
Appeals Nos. 64 and 65 of 1907.
33. Appeals Nos. 64 and 65 of 1907 and the Memorandum of Objections in Appeal No. 64 next fall to be considered. Appeal No. 64 of 1907 is presented by the Zemindar from the decree of the District Judge in Original Suit No. 19 of 1905. In that suit three questions were raised as to the right of the Government to levy water cess: (1) as in Original Suit No. 3 of 1904 on second cr6p on jerayati land; (2) on first and second crops on inam lands, and (3) on first and second crops on jerayati land alleged by the Government to have been unirrigated or 'dry' at the time of the Premanent Settlement. The District Judge upheld the claim of the Government so far as it related to irrigation from the Jalmuru, Polaki and Lukulam channels, but, holding that the Mobagam channel belonged to the Zemindar, declared that the Government is not entitled to levy water cess on lands irrigated under that channel.
34. The Zemindar appeals in Appeal Suit No. 64 of 1907, and the Government by a Memorandum of Objections raises the question of its rights in respect of the Mobagam channel. Appeal No. 65 of 1907 is by the Government and is put on the same grounds as the Memorandum of Objections.
35. As regards extension of irrigation in jerayati land, i. e., the conversion of ' dry ' land into ' wet,' I have already pointed out that the only engagement on which the Zemindarni can rely is an engagement enabling her to irrigate free of separate charge the extent of land which was classed as ' wet' at the time of the permanent settlement. In arriving at a conclusion as to this extent the District Judge has relied on accounts prepared in 1853 shewing the areas then irrigated. These accounts (called the gudikat accounts) though not based on an accurate survey and measurement of the lands (Exhibit FF, para 7) were found by the Inam Deputy Collector to have been carefully prepared (Exhibit LXXI, 1st paragraph) and were in some cases accepted as the basis of the Inam settlement. They form the most trustworthy evidence we have on which to base an estimate of the extent of irrigation at the date of their preparation, and as there is no evidence of any decrease of cultivation between 1803 and 1853 it is not likely that they err generally in favour of the Government. But a discrepancy was pointed out to us as an example of their inaccuracy : Exhibit LXIX, the gudikat account of the Urlam village, is inconsistent with Exhibit CVII, the water rate account of the same village. The area of 'wet' land taken from the gudikat account is 706 acres : the area actually irrigated is found to be 1,039 acres,and the difference between the two is charged with water cess. But 1,039 acres is more than the whole cultivated area including inams as given in the gudikat account, and almost equal to the total area of the village including porambokes. Mr. Sundara Aiyar suggests that the difference may be accounted for by the cultivation of porambokes but there is no evidence in support of the suggestion. In the absence of any such evidence it is fair to infer that the difference is due to an underestimating of the area by the officer responsible for the preparation of the gudikat accounts. In Exhibit FF, the Collector suggested that the Government might allow 10 per cent, of the estimated area for possible inaccuracies in the estimate, but this does not appear to have been done. Possibly the Government officers were of opinion that any under-estimate which might operate to the prejudice of the Zemindar would be compensated by probable extensions of irrigation between 1803 and 1853 which were left out of account and this may in general be a fair assumption although there is in fact no evidence of any great extension of irrigation, and Exhibit XXIV shows that under the Polaki channel the improvements made had rendered the supply sufficient for the lands already irrigable but had probably not resulted in any large extension of irrigation to the ' dry' lands.
36. But in the case of Urlam village we have positive evidence that the area of wet land must have been more than 706 acres in 1853, while there is no evidence that it was not more than that extent in 1803. In these circumstances it seems to me that an attempt should be made to estimate the probable extent of the under-estimate.
37. The area of 'dry' land in the gudikat account (LXIX) is so small that the inaccuracy must be to a large extent in the estimate of the 'wet' land: and I would arrive at a conclusion by the following method. Assume in favour of the Government that all the dry cultivable land in the village has been converted into wet: then 745 acres (the total Sarkar cultivable area as per gudikat account) represents an actual area of 1,039 acres: and 706 acres as per gudikat account represents 984 acres on the ground, and this is the area of the ' mamul wet.'
38. We are not asked by either side to adopt this method of cultivation. For the Zemindar it is urged that the discrepancy is enough to discredit the whole gudikat accounts, and for the Government that we should assume that the difference is due to cultivation of poramboke lands. I am not prepared to do either. The gudikat accounts may be accepted where there is no evidence to discredit them, and corrected by the method I propose when there is clearly an under-estimate.
39. There is a similar under-estimate in regard to the. village of Kobagam where the total Sarkar area is 395 acres while the actual area charged is 410 acres, the mamul wet being 360 acres. The difference in this case is small. By the same method of calculation 360 acres as per gudikat account will be found to represent 370 on the ground. The extent on which the Government is entitled to charge water cess will therefore be in Urlam 1039-984 = 55 acres and in Kobagam 410-370 = 40 acres.
40. As to the inams we have the accounts prepared at the Inam Settlement and there is nothing to suggest that they are incorrect. We must accept them.
41. In the case of second crop on jerayati lands I have already shewn that the Zemindar has failed to make out a right to free irrigation.
42. Then as to second crop on inam lands we have to go by the inam settlement. The difficulty arises because there are no statements of areas grown with second crop at the date of the settlement, but there are statements made by the Inam Deputy Collector which indicate that in estimating the income from the land the cultivation of second crops was taken into consideration
43. In Exhibit LXXVI we have an explanation of the method adopted to ascertain the profits of the land. The village under consideration was compared, with reference to its fertility and irrigation facilities, with some village in the neighbouring Polaki Estate which had shortly before come into the hands of the Government and an acreage rate of rent or land tax was fixed, based on an average of the rates obtaining in the Polaki Estate village taken for comparison.
44. In considering the fertility of the village the question whether the lands are cultivated with second crop is always taken into account, and except in the village of Venkatapuram, we find from the statements that the cultivation of second crops was general. I do not understand the District Judge to say that the acreage rates were fixed without reference to this factor ; his view seems to be that the second crops to which reference is made in the statements were not irrigated crops.
45. In that view I have no doubt he is wrong ; he relies on a remark in Exhibit LXXI to the effect that ' wet grain and paddy' are not grown as second crops in Lukulam, but the crops on which the Government is now charging water-cess are not ' wet grain or paddy,' but green gram, gingelly, chillies, &c.; The statements shew that this kind of crop was grown generally as second crop on wet lands, and the District Judge's surmise that it was grown without irrigation is unlikely to be correct.
46. For in the first place if those crops were generally irrigated in 1901, it is not unreasonable to suppose that they did not grow without irrigation in 1861 ; secondly, in the statement for Venkatapuram village it is alleged that the lands are not cultivated a second time ' for want of water' : the obvious inference being that in the other villages where the lands are cultivated a second time that cultivation is with the aid of water; and thirdly, I may remark that in dealing with O. S. No. 30 of 1906 (Appeals Nos. 129 and 134 of 1907) the District Judge himself found ' that for such crops one flooding to prepare the land was essential.' I conclude from all the evidence on this point that the assessment of the inams was fixed with reference to the capacity of the land to grow an irrigated second crop, and consequently, when second crops were grown, includes a payment for such crop: and the Government cannot demand a second payment on the same account.
47. Appeal No. 65 of 1907 is by the Government, claiming the right to charge water-cess on lands irrigated from the Mobagam channel. The District Judge has disallowed this claim holding that the Mobagam channel belongs to the Zemindar. I have shewn that the water of all these channels is supplied or used from a river belonging to the Government and that the ownership of the bed of the channel is really beside the question. Appeal No. 65 of 1907 must be allowed.
48. A question is raised on behalf of the Government whether the Zemindar is entitled to recover anything, whatever be the result of our decision on the other questions. It is urged that the payment of the water-cess must be regarded as a voluntary and, therefore, irrecoverable payment, because it was made without any actual attachment or distraint of the Zemindar's property. The case Muthayya Chetti v. Secretary of State for India I.L.R. (1898) M. 100 is relied on. The plea is one which I suppose the advisers of the Government feel bound to raise, though probably a refund would, as a matter of fact, follow on a declaration by the Courts of the Zemindar's right to free irrigation of land on which water-cess had been collected.
49. But I do not think the plea can be sustained. A demand by the Government having at its back the powers given by Act II of 1864 must, unless in special circumstances, which are not shewn here, amount to a threat of distraint if the money demanded is not paid, and if payment is made to prevent the execution of that threat, I am unable to see how the payment can be regarded as a voluntary payment. (See Narayanasami Reddi v. Osuru Reddi I.L.R. (1902) M. 548 and Lutchmee Doss v. Secretary of State for India I.L.R. (1909) M. 456
50. I would therefore modify the decree and refuse the declara-(a) prayed for in paragraph 30 of the plaint: grant a declaration that the plaintiff is entitled to irrigate free of water cess second crops grown on the inarn lands belonging to her except on those situated in the village of Venkatapuram to the extent of the wet area specified in the respective title deeds, by means of water flowing &c; , as in prayer (b) of paragraph 30 of the plaint, and direct payment to the plaintiff of the amount collected for second crop 011 inams so far as the collection is unauthorised by this declaration-and also payment of the difference between the claim on jerayati first crop in Urlam village and the amount due taking the extent of mamul wet to be 984 instead of 706 acres, the extent in Kobagam village being 370 instead of 360 acres. As to interest the District Judge allowed interest and we do not intend to disallow it. Interest will be allowed on the sums decreed at the rates allowed by the District Judge up to the date of decree and at 6 per cent on the aggregate after the date of decree till the date of payment.
51. Each party should pay his own costs in Appeals Nos. 64 and 65 of 1907. As the memorandum of objections in Appeal No. 64 of 1907 is unnecessary, it must be dismissed but, as its grounds are identical with those in Appeal No. 65 of 1907, its presentation cannot have increased the costs of the plaintiff and it will be dismissed without costs. Each party should bear his own costs in the lower Court.
Appeals Nos. 129 and 134 of 1907.
52. These are appeals from the Subordinate Judge's decree in Original Suit No. 30 of 1906.
53. The suit was for declaration similar to those prayed for in Original Suit No. 19 of 1905 and refund of water-cess collected for Fasli 1314, and our decree should follow that in Appeals No. 64 and 65 of 1907. There is one question raised which was not in Original Suit No. 19 of 1905 and which requires separate consideration. It is dealt with in the 12th and following grounds of appeal in Appeal No. 134 of 1907 and in the 13th and following paragraphs of the Judgment of the District Judge. I agree with the District Judge on the evidence that the water was used to irrigate second crops on lands ordinarily irrigated from the Mobagam channel, and that the water so used was surplus water of the Polaki channel and was carried to the Mobagam channel through various branch channels.
54. I also agree with the District Judge that clause (b) of Section 1 of Act VII of 1865 does not apply to the case because the land was not irrigated by water flowing from or through adjoining land within the meaning of that section nor was it stored in a reservoir and thereafter used. But it seems to me that clause (a) is applicable: the water is used from a river belonging to the Government, just as much as is any other water used from the Polaki channel. The question what would be the rights of the parties supposing the water of the Mobagam channel were mixed with those of the Polaki channel does not arise, whether the irrigation from the Mobagam channel is or is not irrigation with water supplied from a river belonging to the Government: because no water from the Mobagam channel head was used in this case and for the purpose of this question the Mobagam channel bed formed only a branch channel from the Polaki channels. I would allow the Appeal No. 134 of 1907 on this point, and in other respects modify the decree in the manner indicated in disposing of the Appeals Nos. 64 and 65 of 1907. Each party should bear his own costs in Appeal No. 129 ; and Appeal No. 134 is allowed with costs. Each party should bear his own costs in the lower Court.
Appeals Nos. 35 and 36 of 1905.
55. Appeals Nos. 35 and 36 of 1905 are appeals from the decree of the District judge in Original Suits Nos. 37 and 38 of 1901 by the Lukulam Agraharamdars in regard to water cess on second crops grown on wet lands in their agraharam.
56. It seems to me clear from Exhibit H (which is Exhibit LXXl in Appeal No. 64 of 1907) that the rates fixed in order to arrive at the quit-rent stated in Exhibit J were struck in consideration of the circumstance that the lands were generally grown with second crops. It cannot be doubted, I think, that in arriving at his rate of 6 Rupees per acre the Inam Deputy Collector relied on the fact that even in unfavourable seasons the wet lands were twice cultivated. It follows that a payment for a second crop irrigated, at any rate for a second crop of the kind on which water-cess is now levied, was included in the amount on which the quit-rent was fixed, and a further charge on that amount would be a violation of the engagement implied in the grant J.
57. Appeals Nos. 35 and 136 of 1905 must be allowed and the respective plaintiffs in Original Suits Nos. 37 and 38 of 1903 given decrees declaring that of the lands in their agraharam classed as wet lands the extent specfied in their title-deeds is entitled to irrigation free of water-cess for second crops of gingelly, green gram, ragi, etc., raised thereon after the ordinary wet crop with the water of the Vamsadhara river through the Lukulam and Modagam geddas (in Appeal No. 35 of 1905) and through the Lukulam gedda (in Appeal No. 36 of 1905) and a direction to refund the amount claimed with interest at 6 per cent. from date of levy to date of payment.
58. In the lower Court and in the appeals the parties will pay their own costs as the agraharamdars in their claim for unlimited free irrigation.
Appeal No. 40 of 1905.
59. In Appeal No. 40 of 1905 the Government succeeds so far as the declaration is concerned, but fails as regards the second crop charge claimed. Each party may, therefore, bear his own costs.
Appeal No. 41 of 1905.
60. Appeal No. 41 of 1905 is an appeal from the decree of the Districe Judge in Original Suit No. 38 of 1903 in so far as it refuses costs to the Government. As I hold that Original Suit No. 38 of 1903 ought not to have been dismissed and that each party thereto ought to pay his own costs, I think this appeal must be dismissed with costs.
S.A. No. 237 of 1907.
61. Second Appeal No 237 of 1907 is an appeal by the Government from the decree of the District Judge in Appeal No- 161 of 1906 on his file. He there held that the Government was not entitled to collect water-cess on the second crop raised on their inam lands by means of water drawn from the Mobagam channels.
62. The plaintiffs did not set up any engagement with the Government or give evidence of any such engagement. They rested their case on an alleged right to irrigate from the Mobagam channel free of water cess. I am of opinion that they have not that right for reasons already given : and in the absence of any engagement, the Government is entitled to levy a separate charge on second crops.
63. The appeal must, therefore, be allowed and the suit dismissed with costs throughout.
64. I agree.