Venkatasubba Rao, J.
1. In these Letters Patent Appeals the question to be decided is, whether the plaintiffs are entitled, as claimed by them, to a refund of water-cess collected by the Government. Although some relief has been granted to them, all the Courts have unanimously upheld the right of the Government to levy the water-cess. For the plaintiffs, it is contended that this contention is wrong.
2. The land to which the appeals relate, is a part of a minor inam of the total extent of about 20 acres, situate in a ryotwari village known as Manyapu Uratla in Vizagapatam District. The inam in question bore the old Survey Nos. 143-a and 143-b, of which 143-a corresponds to the Re-Survey Nos. 143-1 and 143-3 and 143-b to the. Re-Survey No. 143-2. We are concerned here with the plot bearing Re-Survey No. 143-1 alone. The plaintiffs' inam adjoins, and is roughly south-west of Gurampet Agraharatn, through which passes a channel known as Papanna Cherikalvai, marked ABDF in the sketch, flowing from west to east. Of this channel the part shown as DF is entirely within the limits of the Agraharam; indeed a small bit of the water-course to the west of D is also comprised within its limits. The main Channel ABDF bifurcates at the point B, which is admittedly on Government land. One of the branches flowing from B, as will be seen from what has been said, is BF. We are not concerned with the other branch which flows northward and is shown in the sketch as BC. The plaintiffs have, for irrigating their land 143-1, used the water of the channel marked DE (described as 'bodi'), which takes off at, and flows southwards from, D which, as already stated, is within the limits of the Agraharam. To complete the description, it remains to add that the Channel ABDF itself flows from a presumably larger channel on Government land and belonging to the Government, known as Nimmakattu Channel.
3. The plaintiffs asserted that their entire inam was mamool wet land irrigated from ancient times by the Channel DE; but there is a concurrent finding by both the Courts below that DE was excavated somewhere about the year 1913. It is however contended for them that their inam was confirmed in 1865 or thereabouts and that the entire land of 20 odd acres was shown as wet in the Inam Fair Register, from which Ex. B-l is an extract. The intm title deed has not been produced, but from the available papers, it appears that at the inam enquiry, the total assessment was computed at Rs. 14, on which basis, the quit-rent of Rs. 1-12-0 (being 1/8th of the assessment) was fixed. The argument is, that the land being shown as wet land, the assessment, with reference to which the quit-rent was imposed, should be assumed to be 'wet' assessment; this being so, it is contended, that to allow a fresh levy of water-cess would be tantamount to a double levy.
4. The plaintiffs' right to exemption has been put on two grounds. First, it is claimed that the case falls within the first proviso to Section 1 of the Irrigation Cess Act (Madras Act VII of 1865). For this purpose, it is not disputed that the water which irrigates the land, is from a channel or stream belonging to Government. Section 1(a) applies when water is used for irrigation from a river, channel, etc., belonging to Government; Clause (b) applies whenever water by direct or indirect now from any such river, channel, etc., from or through adjoining land irrigates the land - we are here referring only to the relevant parts of the section. It is unnecessary to decide whether the facts of the present case bring it within Clause (e), for, there can be no doubt that so far as Clause (b) is concerned, it applies; nor has this been disputed. We refer to this, for, an argument may be based upon the absence of the word 'used' in the part of Section 1(b) we have just quoted. It may be contended that whereas Clause (a) covers a case of voluntary user see the discussion in Kanniappa Mudaliar v. Secretary of State : AIR1936Mad42 affirmed in Secretary of State v. Veeranna : AIR1937Mad548 , what the extracted part of Clause (b) contemplates by the use of the expression 'irrigates any land' is involuntary user, thus excluding voluntary enjoyment. To argue so would of course be futile, for, if even involuntary user would cast a liability, voluntary user would a fortiori do so, and as already stated, this contention has not been put forward. The substantive part of the section thus applying, the question arises, can the immunity be claimed under the proviso above mentioned? In other words, can the inamdar point to an engagement with the Government exempting him from the cess? In the inam papers filers there is no reference whatsoever to any source of water-supply, but it is argued for the plaintiffs (appellants) that the mere classification of the land as 'wet' imports an engagement to exempt it from cess. Several cases have been cited such as Chidambara Rao v. Secretary of State for India in Council I.L.R. (1902) Mad. 66, Lutchmee Doss v. Secretary of State for India (1908) 19 M.L.J. 470 : I.L.R. 32 Mad. 456, Venkata Rangayya Appa Rao v. Secretary of State for India (1912) 24 M.L.J. 680, Bommireddipalli Chinna Venkayya v. Secretary of State for India (1913) M.W.N. 858, Papachar Sethumadhavachariar v. Secretary of State (1914) 26 I.C. 187 and Sri Rajah Vadrevu Ranganayakamma Garu v. Secretary of State for India (1914) 28 M.L.J. 297, but the question has not arisen in this precise form in any of them. In all the decided cases, the right of the Zamindar or the inamdar, as the case may be, to irrigate free of cess the area specified as wet, has been assumed and the further question has been raised, was he entitled to free irrigation of any excess area? Here the right to irrigate free of charge even the extent shown as wet is denied and the question that (therefore arises is, from the description simply of the land as wet and in the absence of mention of the source of supply, can an engagement within the meaning of the proviso be inferred? In Yahya Ally Saheb v. Secretary of State : AIR1928Mad97 , there is an observation of Ramesam, J., obiter, which reads thus:
It was the duty of the Inam Commissioner to ascertain the assessment so that the quit-rent to the Government may be fixed, and for the purpose of ascertaining the assessment it may be necessary to enquire how much was wet and how much dry, and as to the wet lands irrigated with water from a Government source of irrigation, how much was cultivated with such water, free of charge; but where the entry is very general, that is, so much land wet and so much dry, I doubt if it had anything to do with the question of irrigation free of charge.
5. This seems to indicate that no claim can be based upon the mere description of the land as wet. Then as in Chidambara Rao v. Secretary of State for India in Council I.L.R. (1902) Mad. 66 one of the cases already referred to, the learned Judges (Bashyam Aiyangar and Moore, JJ.) after referring to the inam papers which showed that the wet area was about 10 acres, went on to observe that according to the principle of law enunciated in Section 13(c) of the Indian Easements Act, the inamdar would be entitled to irrigate the said extent of wet land free of separate charge from the same source from which the land was irrigated at the time of the grant. Here, it is implied that the engagement is not an unqualified one but is with reference to a particular source of water-supply. In Kandukuri Bala Surya Rao v. Secretary of State for India (1917) 33 M.L.J. 144 : L.R. 44 IndAp 166 : I.L.R. 40 Mad. 886 (P.C.) (the Urlam case), their Lordships of the Judicial Committee, while indicating the things to be shown by the person relying on the proviso, refer as one of them, to his being entitled to water for irrigation 'from the source from which he is actually irrigating his lands'. Kandukuri Bala Surya Rao v. Secretary of State for India (1917) 33 M.L.J. 144 : L.R. 44 IndAp 166 : I.L.R. 40 Mad. 886 (P.C.). The appellants' counsel finds support for his argument in the wording of the Board's Standing Order, which says that to the extent of wet land specified in his title deed, no inamdar can be charged for irrigation to a single crop. He specially relies upon the fact that this rule was promulgated by the Government in 1865, that is, about the period of the Inam Enquiry [Board's Standing Orders (1931), Volume 11, Rule 64, p. 423.] The specific case set up by the plaintiffs that the channel DE was the source of water-supply both prior to, and at the date of the settlement, has been negatived by a concurrent finding of the Courts below. There is no evidence whatsoever whether at the time of the grant there was in fact any source of irrigation at all, the water from which was available to the inamdar. Let it be assumed, however, that by reason of the description of the land as wet, reinforced by the Standing Order in question, there is a duty cast upon the Government to supply the water free. But does that absolve the plaintiffs from the obligation of proving that the water they have used is the water from the mamool source of supply? On the facts here they can invoke no sort of presumption in their favour, that the water used is from such source, for, the finding of the Courts below, by which we are bound, is that the channel DE, the water of which has been used, was excavated as recently as in 1913. It has been broadly argued that once the Government's liability to supply water is shown, the inamdar of his own sweet will may tap any water at any point whatsoever. No Court can give countenance to a proposition of this sort, which would lead to startling results.
6. Turning to the facts, there is not even a semblance of justice in the case the plaintiffs put forward. From 1890 the land was shown as 'dry' in the survey and settlement records. It has not been shown that before 1913 it was ever irrigated as wet land. In the last mentioned year, the canal in question (DE) was dug for the first time and the Government forthwith claimed the right to levy the water-cess. They accordingly declared it to be so liable and from 1913 for about 12 years the inamdars acquiesced in the demand and continued to pay the cess. It was not till the plaintiffs, who are recent purchasers, acquired the land that the Government's right was questioned.
7. The second ground on which the immunity is claimed is in the nature of what may be termed a jus tertii. Mr. Govindarajachari for the plaintiffs relies upon certain dicta of their Lordships in the Urlam case to the effect, that once the water is lawfully taken into the channel, the Government would have 'nothing further to do with the matter'. This passage in its context cannot support the learned Counsel's argument, for, their Lordships also observe:
If cess were levied upon her as inamdar, she can rely on the same engagement to the same extent as could a tenant of zamindari land authorised by the zamindar to use the water. (P. 186.)
8. What the earned Counsel seems to suggest is, that by reason of the principle of the Urlam case, the Gurampet Agraharamdar became the proprietor of the water, at the point D where the plaintiffs abstracted it, through the excavated channel DF. In the first place, that case decides nothing of the sort, for, the question involved there is not of ownership of water. Papanna Cherikalvai, it must be remembered, is not a natural but an artificial water-course, as the Government has pleaded and the District Munsiff has found (see first of the two paragraphs in his judgment numbered 13). As Lord Atkinson points out in Maung By a v. Maung Kyi Nyo (1925) 49 M.L.J. 282 : L.R. 52 IndAp 385 : I.L.R. 3 Rang. 494 (P.C.) in the case of an artificial water-course, any right of the owner to the flow of the water must rest on the prescription or grant from or contract with the owner of the land from which the water is artificially brought. The contention therefore based upon the supposed proprietary right of-the Agraharamdar to the water falls to the ground. But apart from that, the question under the Irrigation Cess Act is not whether the water has become some third party's property, but whether the river, stream, etc., is one belonging to or constructed by the Government see Syed Hyder Ali Saheb v. Secretary of State for India (1933) M.W.N. 1457 followed in Ayyanna v. Secretary of State for India (1933) 36 M.L.J. 179 : I.L.R. 56 Mad. 696. Had the channel not been an artificial water-course but a natural one, different considerations might probably apply see Chinnappan Chetty v. Secretary of State for India (1918) 36 M.L.J. 124 : I.L.R. 42 Mad. 239 and Secretary of State for India v. Subbarayudu (1931) 62 M.L.J. 213 : L.R. 59 IndAp 56 : I.L.R. 55 Mad. 268 (P.C.) but that is not a matter on which we are called on to pronounce an opinion. Papanna Cherikalvai, the artificial channel, being undoubtedly the property of the Government, the right to exemption can arise only under the first proviso, which no doubt affords protection to the Gurampet Agraharamdar by reason of the Government's engagement with him, but confers no such benefit whatever upon the plaintiffs, who can rely upon no such engagement either express or implied.
9. In the result, the Letters Patent Appeals are dismissed with costs.