1. The suit out of which this appeal arises was filed in December 1921 by the owner of the Athimanjeri Estate and relates to the Sholinghur Tank. Wet lands in the village of Panchagantaninadhapuram which is within the Athimanjeri Estate are being irrigated by water from this tank and have been so irrigated for more than a century. Until 1920 no charge was made for this irrigation by Government but in that year, and again in 1921, Government levied water-cess. Plaintiff thereupon filed this suit, claiming an absolute right to one-third of the water from this tank and asking for a perpetual injunction restraining Government from levying water-cess, and for the refund of the cess already levied.
2. The suit was tried by the learned Subordinate Judge of Chittoor. He found that plaintiff had failed to prove his claim to one-third of the water, but that on the facts it must be presumed that Government had entered into an engagement with plaintiff's predecessor-in-title to supply water from the Sholinghur tank to lands in this village free of charge. He also found, however, that by reason of improvements carried out at Government expense in 1873 the capacity of the tank had been materially increased, and, in consequence, the area of irrigation in the village had also been materially increased. From these facts he inferred that the measure of the grant must be the amount of water which the tank could supply before the improvements were effected and this amount be ascertained, from material contained in cultivation accounts for the years previous to the improvements, to be the quantity which could irrigate eighty acres. He passed a decree accordingly, limiting the refund and the injunction to the quantity of water so ascertained.
3. With this decree neither party was satisfied, plaintiff appealing, and Government filing a memo, of cross-objections. In disposing of the appeal and cross-objections the learned District Judge of Chittoor agreed with the Sub-Judge that plaintiff's right to one-third of the water had not been established, and agreed also that the result of the improvements in 1873 had been to bring about a large increase in the area of village lands irrigated from the tank, but he differed from the Sub-Judge's method of estimating the extent of the plaintiff's right to free water. He held that the fact that irrigation prior to the improvements was limited to an average extent of 80 acres was not conclusive, and that other factors besides the lack of water, viz., the apathy, conservatism and lack of enterprise of the ryots had restricted this extent. He realised that it was impossible to arrive at any precise estimate of the quantity of waiter available before 1873, but considered that the fairest method, and the most convenient method, of settling this question was to allow free irrigation to all wet lands in the village for one crop only, reserving Government's right to levy water-cess for any subsequent crop. The effect of this decision is to reduce considerably the amount of water-cess payable by the plaintiff.
4. This solution also, however, has failed to commend itself to either party. This time Government has appealed and plaintiff has filed a memo, of cross-objections.
5. In its memo, of appeal Government contends that plaintiff has no right to free water at all and that this suit should have been dismissed. In the hearing before us however, this extreme position was abandoned. It was conceded that there must have been some engagement to supply some water free of charge, and it was argued in the alternative that of the two methods of ascertaining what that engagement was, that adopted by the Sub-Judge is right, and that adopted by the District Judge is wrong. Plaintiff on the other hand contends that he is liable to pay no water-cess at all, and if that extreme claim is negatived, argues in the alternative that the decree of the District Judge should be affirmed.
6. The law on this subject is to be found in the proviso to Section 1 of the Madras Irrigation Cess Act VII of 1865 which runs as follows:
Provided that where a zamindar or inamdar...is by virtue of engagements with the Government entitled to irrigation free of separate charge, no cess under this Act shall be imposed for water supplied to the extent of this right and no more.
7. It is clear from the language of this proviso that it is for plaintiff to establish what his engagement with Government was, and the only question before us is to decide by what method the extent of plaintiff's right to free irrigation is to be ascertained. It is common ground at the hearing before us that that right was the right to take whatever water was available in the tank at the time when the engagement must be deemed to have been agreed upon - i.e., at some time more than a century ago.
8. Now plaintiff's argument before us is that at the time of the permanent settlement in, the early years of the nineteenth century this tank was in a far better condition than it was before its repair in 1873, and was in fact capable of irrigating all the wet lands in the village. What was done in 1873 was only partly to restore it to its old condition of efficiency. It is, therefore, hr contends, unfair to estimate the quantity of water available in 1805 by assuming that at that time also it could irrigate only 80 acres. In support of that argument he refers to the very cultivation accounts themselves on which Government relies, which show that although only 80 acres were actually cultivated, the total nanja or wet land of the village was entered as about 200 acres.
9. This argument, however, we are unable to accept. In the first place it is due rather to promptings from ourselves, who were anxious to clarify the plaintiff's contention, than to anything to be found in the pleadings. There is no trace of its ever having been put forward in either of the two Courts below. In the second place it is supported by no authoritative text-book and by no evidence of any witness regarding the significance of the particular entry relied on in the cultivation accounts. And finally it is, in our opinion, based upon facts which are unproved and contrary to those found by the lower Courts, which assume throughout in the absence of any contention or evidence to the contrary that the improvements of 1873 were not a mere restoration of the tank to its condition of sixty or seventy years before, but a conversion of an originally inferior tank into a much better one.
10. We must now therefore rule out the extreme contentions of either side, and discuss the methods of ascertaining what was the volume of water available in this tank before the improvements were effected. The method adopted by the Sub-Judge of considering the extent of land irrigated by the water is one which follows the authority of a ruling of this Court, Secretary of State for India v. Ambalavana Pandora Sannadhi (1910) I.L.R. 34 Mad. 366. The question is formulated at page 371 in these words 'whether the area irrigated should be viewed as a final; and conclusive measure of the quantity of water used' and the learned Judges go on to say:
In the great majority of cases no other test of any practical value than that of the area irrigated can be suggested. It has been constantly adopted: and acted upon as conclusive of the extent of a zamindar's rights to free irrigation, as numerous decisions show.
11. Later on at page 372 they lay down the law as follows:
A landholder is not precluded from showing that the excess of wet : cultivation (first or second crop as the case may be) irrigated with the aid of Government water over that existing at the time of the grant, is due to thrifty use of water or careful maintenance of his channels or lands to prevent wastage and not to the use of an increased quantity of water in which case water-cess on the increased area would not be leviable. But in all such cases rigid proof should be required the natural presumption being that the quantity of water used varies in proportion to the extent under irrigation.
12. Now it is argued for the plaintiff, and, no doubt, rightly so argued, that the authority of this ruling is to some extent shaken by the Privy Council in its judgment in the Urlam case, Prasad Row v. The Secretary of State for India (1917) 33 M.L.J. 144 : L.R. 44 IndAp 166 : I.L.R. 40 Mad. 886 . There a different standard of measurement was adopted. It was found that sluices and channels which take off water from a Government river, were granted to a zamindar along with the land through which the channels ran, and the zamindar's right to water, to quote the words of the judgment on page 904:
must be measured by the physical conditions, such as the size of the channel, or the nature and extent of the sluices and weirs governing the amount of water which enters the channel, and not by the purposes for which, the grantor or his tenants have been accustomed to use water from the channel prior to the date of the grant. The water in the channels may never have been used by the grantor or his tenants at all, but it would be absurd to hold on that account that no easement or right of taking water from the river passed by the grant.
13. The Urlam case, however, though of supreme importance in regard to the law relating to the levy of water-cess, cannot be said to afford us any practical assistance in our present problem, for there is no question here of any elaborate system of sluices and channels on a large scale and no evidence of the existence of any such sluices and channels from which the capacity of the tank can be estimated. The test laid down in the Urlam case cannot therefore be applied, and we must fall back on what other material we have. The only positive material is that afforded by the actual extent of irrigation.
14. Now it is, of course, theoretically possible that although the water available in the years before 1873 sufficed to irrigate only 80 acres, the same quantity of water might now be made to irrigate a larger extent. The learned District Judge was, we think, perfectly justified in taking into account the 'apathy, conservatism, and lack of enterprise' of the ryots of that distant period. But those defects in the character of the ryots are more a matter of surmise than of proof and still less has the plaintiff been able to show what extent could be irrigated now with the old water-supply by ryots who are not apathetic, not conservative, and not unenterprising. The words of the proviso to Section 1 of the Act certainly show that plaintiff must clearly prove and define the extent of his right, and where there can be no doubt that he is unable to do this, he must suffer for it as the learned District Judge himself recognises in another part of his judgment (para. 11). We are of opinion that this is a case like that referred to in Secretary of State for India v. Ambalavana Pandara Sannadhi I.L.R (1910) 34 Mad. 366 where the extent of the land irrigated is the only test which is of any practical value, and that before holding that the increase of irrigation is not due to the increased use of water (which is itself made available only by improvements undertaken at Government expense) we must insist upon strict proof of the existence of other causes, such as, e.g., a change in the character of the ryots, or their improved methods of utilising the water. This strict proof is certainly lacking in the present case.
15. In the result therefore allowing the appeal in part, and dismissing the memorandum of cross-objections with costs we must set aside the decree of the learned District Judge and restore that of the learned Subordinate Judge. Each side to pay its own costs of the appeal and of first appeal.