1. Plaintiffs sue for a declaration that the defendant, the Secretary of State, has no right to charge water-cess in respect of certain lands belonging to the second and cultivated by the first plaintiff.
2. The plaint sets forth that these lands are zamindari ryoti situated in Veeravallipalam village, near a channel known as Togarapaya; if it be found that water was taken for irrigation purposes from this channel, then it is water which does not belong to Government and to which plaintiffs' land has a natural right (Para. 5-b of plaint).
3. The defendant denied that the channel was ryoti, claiming that it was part of the river Godavari, where it is both tidal and navigable, the water therein belongs to Government and plaintiffs have no natural right.
4. There is no precise sketch of the locality, possibly because no precision can be guaranteed. The lands admittedly lie between the flood banks of the northern branch of the Godavari delta, and when the waters annually subside, the striation of soil and water left in the river-bed presumably is not of unvarying pattern. This circumstance in our opinion does not materially affect the questions which we have to decide.
5. The learned District Munsif found that water had been taken for irrigation as stated by the defendant (Issue IV) and that the channel at this spot was non-tidal and navigable only for a portion of the year. Therefore its water does not belong to Government and plaintiffs have a right to take it free of charge (Issue II).
6. The learned Subordinate Judge on appeal found that the bed of the stream, that is, the Togarapaya, and its banks do not belong to Government. He bases this finding entirely upon the ruling in Chinnappan Chetty v. The Secretary of State for India I.L.R. (1918) M. 239 : 1918 36 M.L.J. 124 assuming that Togarapaya is an independent river and not part of the Godavari, which is the very fact that he had to decide. One of the grounds of appeal which he overlooked is the third:
The Lower Court erred in holding that the Togarapaya is a separate stream distinct from the main river Godavari which extends from flood hank to flood bank.
7. Moreover, the learned District Munsif has clearly stated in his 28th paragraph:
The main contention on behalf of Government is that the bed of the river means everything that lies between the two embankments and that the bed of the Paya consequently is portion of a tidal and navigable river.
8. This is an issue of fact which should have been but has not been determined by the Lower Appellate Court. The materials are all before us, and as nothing will be gained by remanding this suit for a finding, we proceed to determine the question ourselves.
9. It is found by the District Munsif and not disputed that the Godavari near Veeravallipalam is both tidal and navigable (para. 27). His idea would seem to be that if one takes a lateral section of a river, looking, so to speak, straight across from one bank to another, only that portion which is actually tidal and navigable contains water belonging to Government, while those portions which are too shallow to permit of navigation, or too high to be covered by tides, are in the category of non-navigable streams. A river cannot be divided up in this arbitrary manner. In the dry season, most rivers in India exhibit in their beds as much sand as water, but everything between their banks is none the less the river. Here, the navigable and tidal channel of the Godavari lies, as would seem from Ex. B., on the north; and within the main banks to the south of this channel in the dry season is a medley of land and water, lanka and paya; but it is all the Godavari, and the Godavari at a point where it is a navigable river. The same question has been raised in connection with the Ganges. Has a man with fishery rights in the river to confine his operations to the actual main stream, or may he also fish in a detached channel which is only part of the main stream during the annual floods. That he may is ruled in Jogendra Narayan Roy v. Crawford I.L.R. (1905) C 1141. We find therefore that the Togarapaya is part of a tidal and navigable river and Chinnappan Chetty v. The Secretary of State for India I.L.R. (1918) M. 239 : 36 M.L.J. 124 has no direct application to this suit because it deals with a non-navigable non-tidal river. It is admitted that the water of a tidal and navigable river belongs to Government and so the finding that the Godavari at the suit locality is a navigable and tidal river attracts the provision in section a Madras Act VII of 1865:
Whenever water is used for purposes of irrigation from any river belonging to Government, it shall be lawful for Government to levy I a cess for such water.
10. In order to avoid this statutory provision it would be necessary for the plaintiffs to plead the benefit of the proviso to Section 1, that by virtue of an engagement with Government they are en-? titled to free irrigation, or to plead that they have a natural right to the water unaffected by the Statute.
11. They did state that the land in question was ryoti, and this has not been traversed in the defendant's written statement, but it does not appear that they pleaded any engagement at the time of the Permanent: Settlement, express or implied, so that this question does not arise in the present suit. Rut they pleaded a natural right in para. 5-b of the plaint, which is denied in para. 3 of the written statement. It may be assumed that such right, if it existed, remained intact, whether the land was granted at the original settlement, or subsequently, as contended in the lower appellate court. And that such right was not taken away by the Madras Statute Law is laid down by Sankaran Nair, J., in Sri Rajah Simhadri Raju v. The Secretary of State I.L.R. (1914) M. 67 : 28 M.L.J. 51. To prove that the right exists, the plaintiffs must show that the 2nd plaintiff is a riparian owner, and as such has a natural right to irrigate the land which lies adjacent to the river.
12. The land is riparian in the sense that as it is an island in the river its margin is washed by the current. The learned Government Pleader argues that in order to enjoy the privilege of a riparian owner, the plaintiffs should be occupying one of the main banks of the river. But the banks of an island are for all practical purposes equally riparian. In Great Torrington Commons Conservators v. Moore Stevens (1904) 1 Ch. 347 it was held that a riparian owner cannot claim ownership in a river-bed ad medium, filum so as to ignore an island in that bed; the line must ordinarily be drawn between the main bank and the island, bisecting the intervening channel. This would seem to imply that the owner of the island possesses the same riparian rights as the owner of either main bank. We find that 2nd plaintiff is a riparian owner.
13. Then there remains the final question, whether a riparian owner of land abutting a river belonging to Government may claim a natural right to use its water for irrigation. In Prasad Row v. The Secretary of State for India 'the Urlam case,' Lord Parker observed that upon such a riparian owner a cess would appear to be leviable, and the question would arise whether it were possible to imply some engagement with the Government arising out of the natural or prescriptive right of the riparian owner. In that suit it was found that the Zamindar was entitled to take water by virtue of the Permanent Settlement, and the effect of natural or prescriptive rights was not determined.
14. The Urlam case has been discussed obiter by Sadasiva Aiyar, J., in Lakshminarasu Avadhanulu v. The Secretary of State for India (1917) 34 MLJ 223 a suit to which it could not directly apply because there was no proof of riparian ownership. The learned Judge observes that a riparian owner has a natural right to irrigate his land provided he does not cause material injury to other like owners, and 'we should be liberal in recognising irrigational rights as natural rights.' In Subbarayudu v. Secretary of State for India : (1927)53MLJ868 Ramesam, J., in delivering the judgment of the Court, remarks, after citing Secretary of State for India in Council v. Maharaja of Bobbili in which the riparian owner was found to have prescriptive rights, at page 976:
Whether it is a natural right or a prescriptive right of the riparian owner I do not see what difference it makes ... A riparian right is a natural right ... That in India rights of the riparian owner include also the right to take reasonable quantity of water for purposes of. irrigation scarcely admits of any doubt.
15. There would certainly seem to be small room for doubt in the face of these authorities. Had the matter come before me as res integra I might perhaps question whether the right of a riparian owner in India ex jure naturae extends to diverting to his own property water belonging to another person. It is a far cry to reach such a right from the analogy of a riparian owner being entitled to erect a wharf in an English tidal river; the right is conceded in Lyon v. Fish Mongers Company (1877) 1 A.C. 662 which is the basic ruling upon which this claim to natural right is founded.
Every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land, for instance, to the reasonable use of the water for his domestic purposes and for his cattle.' Miner v. Gilmour (1858) 12 P.C. 131.
16. Is irrigation in this Presidency ordinary use? Whatever academic doubt may be raised, this question in my opinion has been answered by our Court in the affirmative. I find therefore that the 2nd plaintiff is a riparian owner of property situated upon the bank of a river belonging to Government and has a natural right to use the water of this river for that irrigation for which a cess was levied. The imposition of that cess is not justified by Section 1(a) of Act VII of 1865 read in the light of the first proviso, because when Government granted the land they granted along with it the natural rights.
17. The appeal is accordingly dismissed with costs.
18. Though no detailed map of the land in question or of the Tagarupaya in its neighbourhood has been produced in this case, the general accuracy of the Government survey map of the Amalapuram Taluk has not been disputed before us. That map shows that the Tagarupaya is not in any part of its course an independent river, but that it branches off from the Goutami, the main northern branch of the Godavari, about 10 miles above the land in question, that though it does not flow back into the Goutami, it connects with the Goutami again about 10 miles below the land in question, and that its whole course for those 20 miles and much farther lies between the main stream of the Goutami and its southern flood bank. I agree therefore that we must find that the Tagarupaya is a part of the Goutami. It is undisputed that the Goutami from the point where it comes into existence as a branch of the Godavari until it reaches the sea is a river belonging to the Government within the meaning of Section 1 of the Madras Irrigation Cess Act. In taking water from the Tagarupaya for irrigation therefore the plaintiffs were taking water from a river belonging to the Government.
19. It is undisputed that the land in question is part of an island which has long existed between the Tagarupaya and the main stream of the Goutami and is on the edge of that island adjoining the Tagarupaya. The plaintiffs pleaded that the land was zamindari jiroyati in Viravallipalam village, meaning thereby, as I think we must understand the plaint, that it was part of the Viravallipalam zamindari. That plea was not denied by the defendant in his written statement. It is admitted that there was a permanent settlement in respect of the Viravallipalam zamindari in 1802 or 1803, and we must take it in the circumstances that the land formed part of the zamindari at that time. It appears from the evidence that parts of the course of the Tagarupaya have changed from time to time, but it has not been suggested before us that it has not flowed immediately next to the land in question from the time of the settlement. Neither party has thought fit to produce the zamindari sanad or a copy of it, and I think from that we may infer that there is nothing in it specifically referring to the irrigation of the land in question or of land within which that land is included. Such a grant, if it had to be construed, it would be our duty to construe strictly against the grantee. But, when we find, as in this case, that land on the bank of an island in a Government river has been settled as part of a zamindari without any particular terms regarding irrigation, in my opinion we must infer that all the ordinary rights of a riparian owner, whatever they may be, were granted to the Zamindar, or recognised, by the settlement. Adopting the view expressed in the closing words of Subbarayudu v. Secretary of State for India : (1927)53MLJ868 I agree that we must hold that those riparian rights include the right to take a reasonable quantity of water from the Tagarupaya for irrigating the land in question on the edge of the island. That being so, the Madras Irrigation Cess Act gives the Government no power to levy a cess for such irrigation, as the settlement implies an engagement to the contrary within the meaning of proviso 1 to Section 1 of the Act. I agree therefore that this appeal must be dismissed with costs.