1. The principal question in this appeal is, what is the extent of the plaintiff's right to draw water for irrigation from the Thmanur tank?
2. We have no doubt that plaintiff is not the owner of any part of, or share in, the bed of the tank. This question seems hardly to have been in dispute in the Court below, but was argued before us, though Mr. Sundara Aiyar did not consider it necessary for his case to prove his client's ownership.
3. There is no doubt that the tank did not belong to the plaintiff's predecessors before the grant of the Cowle (Ex. C) in 1826, and there is nothing in that Cowle or in the Schedule A attached thereto-a schedule which, according to the Cowle, specifies the lands over which the right to collect the revenues is granted-to suggest that the ownership of the tank was thereby conveyed to the inamdar. On the other hand the schedule rather indicates that it was not so conveyed, and there are circumstances which render any such alienation improbable. There is evidence in this case that part of the tank-bed is situated in the village of Veppampatti and if that is true, and it conies from the plaintiff's own witness, it is highly improbable that the Government would have made over the tank to the inamdar of Tinnanur. Even if that is not true it is certainly true that the tank serves not only Tinnanur but also another inam village and some Government villages, and it is unlikely that the inamdar of Tinnanur would have been made sole owner of a tank of this kind.
4. Mr. Sundara Aiyar contended that, however, the question of the tank-bed may be decided, Ms client must beheld to be the owner of a share in the water of the-tank, or to have rights by way of easement to make use of a definite share of the water for irrigation of the lands of Tinnanur if for no other purpose and that inasmuch as he has not attempted to draw from the tank more than his share he is not bound to pay anything to the Government for the use of the water he has taken.
5. Now, the Cowle Ex. C. says nothing of water rights, and we cannot presume that the Government intended to grant to the inamdar any water right other than those which would pass by implication with the grant of the right over the land. What was granted was the right to collect the revenues of the village and what passed by implication therewith, so far as water rights are concerned, would seem to be an under-taking not to refuse to the ryots holding nanjai lands the quantity of water necessary to enable them to irrigate these lands and so to pay the revenue which they had paid to the Government before the grant.
6. The evidence to which we propose to refer does not prove that the ryots of Tinnanur as a body were entitled to a definite share of the water of the tank as against the Government. It shows that after the grant of 1826 (it is not clear whether the same system was in force before that time) there was an arrangement by which the different villages served by the tank drew water by turns of different duration, arranged, no doubt, originally with reference to the extent of land irrigated in each village; by this arrangement Tinnanur got 5 3/4 shares out of 9 1/2, Annambathu one share and the other Government villages the remaining 2 3/4 shares, and upon the basis of this arrangement, the Government arranged on one occasion with the inamdar to share the cost of repairing the tank. The inamdar, in the agreement made on that occasion, (Ex.Q), is described as being interested to the extent of 5f stares out of 9 1/2 in the water drawn for purposes of irrigation. These shares are also referred to in the correspondence between the officers of Government on the subject of repairs (vide Exs. U. and O.O.). From Exhibit XL, it appears that the Government styled the inamdar as co-owner of the tank, but there is no evidence that he ever held that position and he has never claimed it, though he has claimed to be the sole owner.
7. There is oral evidence as to the distribution of the water by turns, and on the plaintiff's side the fact that the Government has not, before the first of the years to which this suit relates, demanded water cess from the inamdar. This evidence merely shows that there was a customary distribution of the water in the tank between the areas to be served by it; from Ex. U. it is clear that the Government did not rely on this distributory system as deciding the amount of contribution due from the inamdar, though they Used it for that purpose in Ex. Q; in the suit in which Ex. U. is the judgment they calculated their claim on the average area irrigated. On the defendant's side there is the very strong negative evidence of the grant. If the Government were granting a definite share of the water to the inamdar, the Cowle (Ex. C) would have said so. Of course, if the plaintiff could show that the ryots were entitled to a definite share that would be enough, for him, but there is nothing to show that. They may be entitled to demand that not less than 5f out of 9 1/2 shares of the water shall be sent down to their lands, if that amount is required for the irrigation of those lands, but there is no proof that the Government is bound to supply them with more than is required for the purpose of irrigation of the lands irrigated at the time of the grant. There is thus no proof of any engagement between the Government and the inamdar by which the inamdar is entitled to a definite share of the water in the tank, and that being so, the Government has a right by virtue of Madras Act VII of 1865 to levy cess for water supplied for irrigation.
8. The inam granted in 1826 was enfranchised in 1871, a quit rent being fixed at 1/4th of the average annual income, and second crop charge collected by the inamdar on the average extent of 141 acres of nanjai land and 36 acres of punjai land was taken into account in arriving at the income. It is contended by the plaintiff that at least to this extent the inamdar is entitled to free irrigation, and on the other hand, the Advocate-General urges that the water cess levied is a tax and the Government does not, by granting an inam, undertake not to levy taxes on the garantee.
9. Assuming that the water cess is a tax and not rather the price of a commodity, the engagement between the inam Commissioner and the inamdar amounted to this : a certain income is derivable from taxes of different kinds including taxes for the use of water for 36 acres of dry lands and for 2nd crop on 141 acres of wet lands. Of this income the inamdar takes three-fourths and the Government one-fourth as the value of its reversionary rights.
10. This amounts to an engagment by which the Government undertakes not to take more than one-fourth of the income derived from the various sources taken into account, and one of these sources is the charge collected from the ryots for irrigation known as faisal justi or tirva jasti, according as it is levied on the irrigation of nanjai or punjai land. The Advocate-General has not shown us how this charge is to be distinguished from the water-cess leviable under the Act of 1865, and we do not think there is any true distinction. There was then an engagement between the inamdar and the Inam Commissioner by which the latter undertook that the Government would content itself with 1/4th of faisal and tirva jasti on the average area then chargeable with those payments, and it will be a breach of that engagement if on that area the Government now levies a farther charge for water. The Advocate-General suggested that an engagement of this kind was beyond the powers of the Inam, Commissioner. The power of the Inam Commissioner, speaking generally, was to sell, to the inamdar, the reversionary right of the Government, and to fix the price in accordance with the rule laid down by the Government, and the Advocate-General has not shown us that these rules were transgressed in the Settlement with which we are dealing; we are, therefore, bound to presume that they followed.
11. To this extent of 141 acres of nanjai and 36 acres of punjai, we think there is an engagement by which the inamdar is entitled to use the tank water for irrigation for second crop on the nanjai land and for watering one crop on the punjai free of any charge, that is, not included in the quit rent.
12. The learned Judge below allows free irrigation for 42 acres of second crop land stated by the Curnam to be registered as such in the accounts. It, does not appear when it was so registered, but it is not found in Ex. G. and G. 2; it is not unfair, therefore, in the absence of other evidence, to infer that it was not so registered prior to the Inam Settlement, and consequently that it ought to be included in the area for which prior to that time faisal jasti was charged i.e., in the 141 acres for which the inamdar is entitled to irrigation free of cess.
13. There remains the question of compulsion, and upon that point we are unable to agree with the learned Judge, who, with great reluctance, felt bound to hold that the payment by the plaintiff was voluntary. There was here a threat that if the money was not paid within a given time, it would be collected by distress and sale of the plaintiff's property. It is true that when the given date arrived, it would have been necessary to issue a new distress warrant before actual seizure of the property, but that fact does not, in our opinion, affect the efficacy of the threat; the issue of the warrant would inevitably follow the default in payment. It is not necessary to decide whether or not the acts of the officers of the Government amounted to coercion within the meaning of Section 15 of the Indian Contract Act; even if they fall short of that it may be open to the plaintiff to recover Narayanasami Reddi v. Osuru Reddi 25 M. 548H and we have no doubt that here the payment was made to avoid a threatened distraint and was not voluntary.
14. We must, in these circumstances, substitute for the decree of the learned Judge a decree declaring the right of the plaintiff to irrigate free of charge over and above the extent admitted by Government 36 cawnies, 9 vishams, 14 chittaks of punjai land, and a 2nd crop on 141 cawnies, vishams and 2 chittaks of nunjai and directing the refund to him of such amount as this modification may render necessary.
15. As regards costs, we think the plaintiff should recover his costs of the appeal and the parties should pay their own costs in the Court below.