Satyanarayana Rao, J.
1. The Province of Madras, represented by the District Collector, Tanjore, is the appellant in this second appeal and the respondent is the District Board of Tanjore by its President. The suit raises a dispute regarding water rate demanded by the Government. The management of certain inam villages belonging to a chatram is vested in the District Board. The chatram in question is Mohanam-balpuram Chatram situated at Rajamatam. The villages were granted in inam to the chatram by a late Rajah of Tanjore. The grant of these inams was recognised at the time of the inam settlement, and the grant was confirmed. The channel known as Puttuvanachi Vari, is the source of supply of water for the irrigation of the inam villages, and the channel is admittedly situated within the limits of the inam villages. From time immemorial, the water from the channel was drawn for the purpose of irrigation of the lands in the villages without any liability to pay water cess to the Government. This was the state of affairs both before and after the inam settlement. It would appear that in one of the villages there is also a tank to which the water is taken from Puttuvanachavari. After the construction of the Cauveri-Mettur projects, the flow of water in these channels became more certain and perhaps larger in volume. On this ground the Government levied irrigation cess from the plaintiff, the District Board of Tanjore, and therefore the plaintiff was obliged to institute the present suit for declaration that the lands were entitled to free irrigation rights and also for a refund of the water cess collected from the plaintiff. The suit was successful in both the Courts. Hence this second appeal.
2. The only question for consideration is, whether the fact that more water is made to flow into the Puttuvanachivari channel by the Government in consequents of the construction of the Cauveri-Mettur project, is the Government justified in the levy of water cesa,
3. It is now well-established law that the extent of the free irrigation right of a zamindar or that of an inamdar in respect of lands in his estate is governed by the decision of the Uralam case; Bala Surya Prasada Rao v. Secretary of State, 40 Mad. 886: A. I. R. 1917 P. C. 42. The principle of this decision is that the permanent settlement with a zamindar constitutes an engagement within the meaning of the proviso to Section 1, Madras Irrigation Cess Act. On the same analogy, it is established now that the inam settlement is also an engagement within the said proviso. The extent of the rights of free irrigation has to be measured not with reference to the area of the land irrigated at the time of the settlement but by a reference to the physical conditions of the channel and its size. If at the time of the engagement the inamdar or the zimindar was drawing water to his lands from a channel of particular dimensions, the dimensions of that channel provide the measure of the right of free irrigation. This has been decided by the Privy Council in the Swamigal's case; Secretary of State v. Vidhya Varadi Thirtha Swamigal, I. L.R. (1942) Mad. 893 : A. I. R. 1912 P. C. 21. In some cases it may be that the zamindar or the inamdar not only took the water through the channel, but also stored it in an irrigation tank to facilitate continuous supply of water to his lands. The increase in the dimensions of the tank by raising, for example, the F. T. L. would not make him liable to pay water cess on the groundthat he had exceeded his right by increasing the storage capacity of the tank so long as he does not alter the dimensions of the channel which is situate in his inam village; see Tahya Ally Sahib v. Secretary of State, 63 M. L. J. 769: A. I. R. 928 Mad. 97 My attention was drawn by the learned Government Pleader to an observation of Somayya J. in Sri Ekam-bareswami Temple of Sirukaramkur v. Pro-vincial Government of Madras : AIR1945Mad332 , where the learned Judge at p. 818 observed :
'the only ground which would justify the Government in levying water cess is that the channel Ammanam Kolakkal was interfered with at its entry into the village or above, and that a larger quantity of water is taken from the channel than what was hitherto flowing into the village.'
If one considers the facts of that case, the importance of that observation of the learned Judge would be evident. In the inam village there was a tank which irrigated the lands of the village. The water to this tank was supplied by a Government channel known as Ammanam Kolakkal, which entered the village from the North, and after supplying water to the tank, passed on the village lower down. The Government attempted to justify the levy of water cess on the ground that the inamdars raised the level of the surplus weir of the tank and therefore stored more water in the tank than they were entitled to. The learned Judge pointed out, after referring to the decision in Yahya Ally Sahib's case, 53 M L. J. 769 A. I. R. 1928 Mad. 97 and the Swamigal's case, I. L. R. 1942 Mad. 893: that the tank and the channel situate within the limits of the village passed to the inamdars under the grant, and that the inamdars were entitled to irrigate more lands by the water of that tank, and were entitled even to raise a second crop on what was a single crop land. In the context the observations of the learned Judge mean, in my opinion that so long aa the dimensions of the channel were not increased and were not interfered with either above or in the village, it would not be exceeding the right recognised under law, and under the engagement the Government would not be justified in levying water cess. It is not certainly authority for the position that if more water waa brought into a channel whose dimensions remained unaltered, the Government are entitled to levy water cess on the ground that the free irrigation right recognised by an engagement at the time of the inam settlement was exceeded. The expression 'more water' used in some of the decisions no doubt on first impression, appear to be ambiguous; but in the context of the decisions it only means more water in the sense that the measure of therights recognised under the law was exceeded and that therefore the water taken over and above the right was more water. From such expression in some of the judgments, and divorcing them from the context it cannot be inferred that merely because the Government have constructed the Cauveri-Mettur project, as a consequence of which more water flowed into the channel, the Government was justified in the levy of water cess in the present case. In my opinion, therefore, the conclusion arrived at by the Courts below is correct, and the second appeal fails, and is dismissed with costs. (No leave.)