1. This second appeal arises out of a suit for a declaration that the defendant is not entitled to collect any water-rate, road-cess or other cesses in respect of any of the plaintiffs' lands in the village of Bhuj Bhuj, Nellore, irrigated under Lingala Cheruvu and Patha Cheruvu.
2. The defendant, the Secretary of State for India in Council, is entitled to impose water-cess under Act VII of 1865 (the Madras Irrigation Cess Act), when certain conditions are fulfilled, but road-cess is levied by the District Boards under the Local Boards Act of 1920 and not by the Secretary of State for India in Council. So far as the suit relates to the road cess, the suit does not lie and must be dismissed, except as to any increment in the road-cess consequent on the imposition of water-cess. But the second appeal was argued only in respect of water-cess.
3. The District Munsif gave a decree. On appeal the District Judge reversed the District Munsif's decision and dismissed the plaintiffs' suit. The plaintiffs have filed, thus second appeal.
4. The history of the village seems to be somewhat as follows : The village was granted originally as a personal grant burdened with jodi and afterwards at about the time of the permanent settlement the jodi itself was remitted by Mr. Travers and the inam converted into a charitable inam; in the inam settlement of 1862, the inam was dealt with as a Dharmadayam inam which was to be held free of quit-rent so long as a choultry called the Kumundan (vernacular corruption of Commandant) choultry situated on the road to Madras is, maintained properly. In the Government order, dated 1st September, 1913 (Ex. IV), there are a number of papers which show its earlier history. The facts above set forth by me appear from the Collector's letter and it was then supposed that the assessment alone constituted the inam. These particulars also appear from the inam statement, a translation of which also appears in the same papers, and show the date of the second grant by Mr. Travers to be 24-th August, 1803. There is an inam register, which bears endorsements dated 1861 and 1864, appearing as an enclosure in the same Government Order, from which it appears that the total extent of the village was entered as 523.04 acres. Its assessment was put clown as Rs. 400. This apparently has not been made from actual calculation but is a rough estimate at a round figure. Column 10 shows that it should be held so long as the repairs are performed and the choultry is maintained. Column 11 shows that it was granted by Mr. Travers in 1803. This was in 1861. Some time after, a portion was taken up for the trunk road and so a reduction was made. After the necessary reductions were made, the area of the village appears to have been 518.85 acres and the assessment Rs. 380-15-5, This was in 1864. Of the total area 94.49 acres appear as wet. The title deeds are not forthcoming. But as the lands changed hands, it appears that the appellants are not responsible for the non-production of the title-deeds. This is immaterial. The contents of the inam title-deed correspond to the contents of the register and we may presume that the figures in the inam register also appeared in the title-deed. The learned Government Pleader's contention is that the inamdar is not entitled to irrigate, free of water-cess, any excess beyond the 94.49 acres, mentioned in the register. The Government Order above referred to, namely Ex. IV, says that the present extent of the village is 685.56 acres, and as it is not contended by the other party that the boundaries of the village have changed, the discrepancy between the old measurement of 1864 and the measurement of 1913 must be attributed to the use of an inaccurate unit and rough methods of survey in 1861. In the absence of any light thrown on the matter, it must be assumed that the inaccuracy has affected every part of the village uniformly. This is the principle adopted by their Lordships, Benson and Miller, JJ., in A.S. Nos. 182, 183 and 184 of 1904 (vide Judgment, dated 1st May, 1908). On this supposition the 94.49 acres mentioned in the inam register would correspond to 94.49 x 685.56/518.85 or 124.85 acres now The descriptive memoir, Ex. I, shows 120 acres as wet. But even then the plaintiffs are irrigating more lands as wet lands. Ex. VIII-a and IX-a show that for Faslis 1323 and 1324 the extent of wet land under Patha Cheruvu was 140.69 and 141.09 acres respectively. The question therefore still arises whether the excess beyond 124.85 acres (or beyond 94.49 if the method of proportionate increase is not adopted) is entitled to free irrigation. In appeal before the District Judge the Government gave up their contention with respect to the lands under Lingala Cheruvu and the second appeal has been argued only with reference to the lands under the Patha Cheruvu.
5. Now the contention of the Government Pleader is as I have already stated that the inamdar is entitled to irrigate free of water-cess only to the extent stated in the inam register or title-deed. In the first place, in some obvious directions this argument seems to be a little too much. For instance, there is no information available as to how much of the extent mentioned in the inam register was under Patha Cheruvu and how much under Lingala Cheruvu. Only the total is mentioned as 94.49 acres; whether we take the old correct extent to be 125.84 acres or 94.49, there is an increase of wet cultivation in. the village. In fact the total wet area in 1913 is shown as 224.48 acres though so much was not actually cultivated in 1913 and 1914. The increase must have been in respect of the lands under Lingala Cheruvu. This means that though there is an increase of cultivation and there are now more wet lands under Lingala Cheruvu, the Government do not seek to impose water cess in respect of these lands and the extent of wet lands as entered in the inam register is immaterial. This shows that the extent mentioned in the register or the deed is realy not entitled to that extreme significance which is sought to be attached to it by the Government Pleader. His contention is that the inam lands must be distinguished from Zamindary lands and that the principles laid down by the Privy Council in the Urlam case, Prasad Row v. The Secretary of State for India (1917) LR 44 IA 166 : 40 M 886 : 1917 33 MLJ 144, are not applicable to inams. Zamindary lands were permanently settled in 1802 under Regulation XXV of 1802, the Government reserving only the peishcush, and inams were settled under the inam settlement in 1860 to 1864 and the claim of the Government over all the inams in the Presidency was fixed (known as Quit Rent). Their Lordships of the Privy Council in the Urlam case dealt also with inams. Though the inams in that case were inams within a Zamindary they say that the inamdar can rely on the same engagement to the same extent as could a tenant of Zamindary-land authorised by the Zamindar to use the water. There is no Zamindary within which the suit inam is situated. Here the engagement was directly with the inamdar. In the matter of considering the effect of the engagement the same principles ought prima facie to apply to the engagements implied in the inam settlement as to the engagements implied in the permanent settlement. In every case we have merely to estimate the effect of the grant of easement and nothing turns upon either the time of the grant or the particular tenure under which the lands are held by the land-holder. It is said by the Government Pleader that in India the Government have by common law the right of assessing every parcel of land to Government revenue [Vide Boddupalli Jagannadham v. The Secretary of State for India in Council ILR (1903) M 16] and that when they exercised that right in 1862 by imposing certain amount of quit rent on a certain area of wet land they did not exercise their right over the remaining lands on the footing of. wet land and if the inamdar has since been converting them into wet lands, imposition of water cess is the only means of re : -adjusting the rights of Government. . But exactly the same argument will apply to Zamindary lands. It may be that in 1802 only a certain area was irrigated as wet. Merely because the extent of wet land has increased, the Government is not entitled to increase the peishcush or impose fresh water rates so long as the easement granted has not been exceeded. A Zamindar is entitled to make full use of the easement for the development of his Zamindary. The possibility of improving cultivation of lands was of course considered at the time of the settlement. The policy was to encourage such improvement. See Prasad Row v. The Secretary of State for India ILR (1917) IA 166 : 4(Fm 886 at 906 Tnd 907 : 1917 33 MLJ 144. The same considerations apply to inams. In the case of inams also quit rent was fixed for them and was not intended to be altered. The Inam Settlement was as much a great Act of State as the permanent settlement and was so described by the Privy Council in The Secretary of State for India in Council v. The Maharajah of Babbili (1915) LR 46 IA 302 : 37 MLJ 724. To say that the inamdar cannot irrigate more than the extent of land mentioned in the register free of water cess is really inconsistent with the concessions made by the Government in respect of the excess lands under Lingala Cheruvu. Apart from this, let us look at the facts of this particular case. The tank, Patha Cheruvu, in the suit village seems to have its main supply from a hill stream known as Udumalavagu which rises in Government land and until it comes to the suit land passes through Government land and therefore can be regarded as a Government source of irrigation. At a particular place it bifurcates and one of the branches goes to the suit village and is not intended for any other village. The District Judge in appeal finds that possibly the capacity of the tank must have been increased, otherwise a larger extent of land could not have been brought tinder cultivation. 'We are bound to accept this in Second Appeal as a finding of fact. But it is not' suggested, nor has it been found, that the width of the branch leading to the suit village from the point of bifurcation was increased or that any changes were made at the point of bifurcation so as to draw more water in this branch than before. So long as nothing has been done to increase the measure of the easement at the point of bifurcation, it seems to me that any improvement in the capacity of the tank is really immaterial. If the tank holds more water by its bunds being raised now, it only means that water which would have flowed through the branch channel intended for the suit village, but which might have overflowed the tank because the bunds were not high enough to hold it, is now kept in the tank, and not that more water is drawn through the branch channel. So long as the easement is not enlarged, even if more water is conserved, it seems to me that the Government is not entitled to impose water cess. The hill stream, the branch channel and the tank in this case correspond to the Vamsadhara river in the Urlam case. In the language of the Privy Council, 'The Government could not complain if the amount of water taken were within this limit.' Where a certain easement is granted there are two ways of increasing cultivation without enlarging the easement. One is by a more economical use of water. This was recognised in The Secretary of State for India in Council v. Swami Narathesivarar : (1910)20MLJ766 , and also in The Secretary of State for India in Council v. Ambalavana Pandara Sannadhi ILR (1910) M 360. The latter decision was confirmed by the Privy Council in Ambalavana Pandara Sannadhi v. The Secretary of State for India in Council ILR (1917) M 909 following the Urlam- decision in Prasad Row v. The Secretary of State for India (1917) L R 44 I A 166 : 40 M 886 : 1917 33 M L J 144. The second method is by improving the capacity of the tank and by conserving water which might have otherwise overflowed. It is possible that this has happened in this case on the Judge's finding of fact. But as I have already observed this does not involve an extension of the easement and so long as the easement itself has not been enlarged, that is, so long as the water which might have flowed through the branch channel is not increased, apart from such variations as may be due to larger rainfall in one year and smaller rainfall in another year, the extension of irrigated lands does not justify the Government imposing water cess. The learned Government Pleader relied on the decision in Chidambra Row v. The Secretary of State for India in Council ILR (1902) M 60, which is cited also by the District Judge. In that decision at page 69 there is a remark:
it was the duty of the inam Commissioner to ascertain and record in the title deed, not the extent of the land which was actually under wet cultivation at the time of the inam settlement but only the extent to which the inamdar was entitled to supply of water free of charge.
6. I do not know on what materials this sentence was based. With great deference to the eminent judge who made this statement, I doubt if there is anything in the nature of the inam enquiry which justifies it. 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, i.e., so much land wet and so much dry, I doubt if it had anything to do with the question of irrigation free of charge. Anyhow, the observations must be confined to the facts of the particular case. In that case it was a small inam situated in a village which was being irrigated by the Kistna anicut water and any increase of irrigation by an inamdar must necessarily deprive some other ryotwari holders or other inamdars of their accustomed supply of water and in that way enlarged the easement. In that cast-there can be no possible suggestion of increase in the extent of irrigated land not being followed by an increase in the easement. It was not the case of a tank which was the sole source of irrigation for one whole village or a branch channel irrigating' one village. The water in the Kistna and Godaveri anicuts is distributed to several villages through a system of channels under the control of the Government, and where any land-holder uses more water than was allotted to him by the Government he must necessarily trespass upon the rights of some other inamdar or landholder. There being no possibility in that case of the easement solely granted for the inam being enlarged within the limits within which he could irrigate his lands to a larger or smaller extent as he likes, the observations of the learned Judges were justified on the facts. Anyhow we must consider that case, if it is intended to lay down anything, in the light of the decision in the Urlam case. I am unable to distinguish the second appeal before me, on principle, from the decision of the Privy Council. Following it 1 allow the appeal, reverse the decision of the District Judge and restore that of the District Munsif with costs here and in the lower appellate court.
Madhavan Nair, J.
7. The plaintiffs are the appellants. They are the inamdars of a whole inam village called Bhuj Bhuj in Nellore taluq. Originally the inam was a personal grant burdened with a jodi, but it was converted into Dharmadayam by Mr. Travers in 1803 by remitting jodi. At the time of the inam settlement this inam was confirmed in the names of the ancestors of the plaintiffs and a title-deed was given to them. In the Register of Inams the following entries appear as against this inam:
acres cents.Dry 270 65Wet 96 58Garden 0 78Poramboke 155 3'This is followed by the statement....
'The present income is less as the extent of the present wet cultivation is less....
8. The extent will be entered in the title deed.' The Survey Register shows a large extent of wet waste land, which though wet was not actually cultivated at the time of the settlement. The lands of this village were cultivated by the inamdars with water taken from a tank called Patha Cheruvu. The Tank Memories show an ayacut of 120 acres under this tank. Patha Cheruvu is fed by a stream flowing through the Government forest in Nellore Amancherla. The entire bed of the tank-belongs to the Government, but its bund belongs to the inamdars. In Fasli 1323 the extent of wet cultivation carried on by the inamdars with water taken from the Government tank was 146 acres 96 cents and in fasli 1324, 141 acres 9 cents. Tin's extent of wet cultivation being in excess over the extent mentioned as wet land in the Inam Register, viz., 96 acres 58 cents, the Government attempted to levy on the inamdars water rate for cultivating this extra area. This second appeal arises out of a suit instituted by the plaintiffs for a declaration that the defendant, i.e., the Government, is not entitled to levy water cess on the lands irrigated under Patha Cheruvu and for an injunction restraining the defendant from collecting water rate for faslis 1323 and 1324 and for subsequent faslis. The contention of the defendant is that the plaintiffs are entitled to free irrigation only to the extent of 96 acres 58 cents noted in the Inam Register and that for cultivating any land in excess of this area with water taken from the tank they are bound to pay water rate.
9. On the main contention raised in the pleadings, the District Munsif found that the supply channel and the Patha Cheruvu tank, the sources of irrigation for this village, belong to Government, that the plaintiffs did not divert any water to the supply channel from the adjoining channel as was contended for by the defendant, that the capacity of the tank had not been in any way increased by the plaintiffs, that there was no evidence that more water was being taken by the plaintiffs from the tank and that the increased extent of cultivation was due to the thrifty use of water made by the plaintiffs. It was conceded in the course of arguments that the plaintiffs had somewhat raised the height of the bund of the tank, which they had a right to do as the bund belonged to them, and that probably due to the silted condition of a connected channel supplying water to the adjoining Nellore tank more water was flowing into the stream supplying Patha Cheruvu. It was also found by the District Munsif on the evidence of D. W. 1, the Tahsildar of Nellore, that ' the water from Patha Cheruvu irrigates only the lands in Bhuj Bhuj, Nellore, and is intended only for these lands.' The learned District Judge agreed with the District Munsif in all his findings except the one regarding the capacity of the tank. On this he found that its capacity had increased and that now more water was stored in it. Even making allowance for the economic use of water and the improvement in the plug of the sluice which prevented wastage, the District Judge was of opinion that with out increasing the capacity of the tank the large extent of land in question could not have been brought under cultivation. But it may be mentioned--and this fact has not been disputed--that the plaintiffs have not interfered in any way either with the supply channel or with the Tank except by increasing the height of its bund by a few feet.
10. In the circumstances found by him, the District Munsif held that the principle of the Urlam decision in Prasad Row v. The Secretary of State for India (1917) LR 44 IA 166 : 40 M 886 : 1917 33 MLJ 144 applied to the facts of this case and that the Government is not therefore entitled to levy water rate for the excess area cultivated by the plaintiffs. The District Judge held that the decision in The Urlam case, Prasad Row v. The Secretary of State for India (1917) LR 44 IA 166 : 40 M 886 : 33 MLJ 144 is inapplicable and that this case is governed by the decisions in Chidambara Rao v. The Secretary of State for India ILR (1902) M 66 and the Secretary of State for India in Council v. Ramanuja Jeer Swamigal (1945) MWN 636, following which, he upheld the contentions of the Government.
11. The question for our consideration is whether, in the circumstances found by the lower court, the Government is entitled to levy water rate for the excess area of land (viz., the area over and above 96 acres 58 cents) cultivated by the plaintiffs with water taken from the Patha Cheruvu. I may state at once that, in my opinion, the finding of the District Judge that the storage of the tank had increased does not in any way affect the decision of this question, in view of the admitted fact already mentioned that the plaintiffs have not in any way interfered with the supply channel of the tank and, what Is most important of all, the fact that there is no evidence to show that more water is now being taken by the plaintiffs for irrigation.
12. In support of its right to levy water rate, the Government relies upon Section 1 of Act VII of 1865. Under this section, whenever water is supplied or used for purposes of irrigation from any river, stream or channel belonging to or constructed by the Government, the Government is entitled to levy a separate cess for such water, provided the zamindar or the inamdar, whose land is so irrigated, is not entitled, by virtue of engagements with the Government, to irrigation free of separate charge. In order to justify the cess under this Act, it must be made out that the irrigation was caused by water supplied or obtained from a river or stream belonging to the Government. In this case the concurrent finding of the lower courts show that Patha Cheruvu and the stream belong to the Government and, therefore, the water for irrigation is supplied from a Government source. Under the Act, exceptions from the levy can be claimed if the claimants can show engagements with the Government under which they are entitled to irrigation free of separate charge. The law is well settled that permanent settlement sanads and engagements arising out of inam settlements are engagements contemplated by Act VII of 1865. As regards the precise extent to which the zamindars and inamdars were entitled to claim exemption under the cover of these engagements, viz., as to whether the right of free irrigation extended only to the extents specified in these engagements and to nothing more, there has been for a long time acute difference of opinion among the learned Judges of this Court. In The Secretary of State for India in Council v. Perumal Pillai ILR (1900) M 279 : 1900 11 MLJ 117, it was held that where there is no limitation in the grant itself, the proprietor is not entitled to an unlimited water supply. In Chidambara Rao v. The Secretary of State for India ILR (1902) M 66, it was held that an inamdar is not entitled to cultivate free of charge land which is in excess of what was under cultivation at the time of the grant. In Kaindukuri Mahalakshmamma Garu v. The Secretary of State for India : (1910)20MLJ823 , the Urlam case, which was subsequently reversed by the Privy Council in Prasad Rao v. The Secretary of State for India it was held that the only engagement which can be inferred from the permanent settlement is that the peishcush being fixed with reference to the area of the land then under cultivation no further charge for the use of water should be made in respect of that area and that if any extent of land in excess of that area is cultivated by the aid of Government water, water rate could be levied in respect of that excess extent. In The Secretary of State for India v. Janakiramayya ILR (1912) M 322 : 1912 24 MLJ 365, Sankaran Nair, J., in an elaborate judgment dealing with the history of the permanent and inam settlements and the policy underlying such, controverted this view differing from Miller, J. In Letters Patent Appeal against his judgment reported in The Secretary of State for India v. Janakiramayya (1915) 29 MLJ 289, Oldfield and Bakewell, JJ., (Sadasiva Aiyar, J., dissenting) upheld the views of Miller, J., and accepted the decision in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India : (1910)20MLJ823 . The latter decision was again followed by Sir Arnold White, C.J., and Ayling, J., in The Secretary of State for India in Council v. Ambalavana Pandara Sannadhi ILR (1910) M 366, but this was subsequently reversed by the Privy Council in Ambalavana Pandara Sannadhi v. The Secretary of State for India ILR (1917) M 909, following Prasad Row v. The Secretary of State for India ILR (1910)M 366. In this state of the law the Privy Council in the Urlam case, Prasada Row v. The Secretary of State for India ILR (1910) M 366, set aside the decision of this Court in the Secretary of State for India v. Ambalavana Pandara Sannadhi ILR (1910) M 366. Stated shortly, in that case the main question was as regards the exient of the right of the Urlam Zamindar to cultivate the lands of his Zamindari with water taken from the Vamsadhara river which was lying contiguous to it. Their Lordships of the Privy Council pointed out that the permanent settlement was an engagement with the Government within the meaning of the proviso to Section 1 of Act VII of 1865, that the effect of the settlement was to vest the channels, with their head sluices and branch and subsidiary channels, and the tanks or reservoirs in the zamindaris, through or within whose zamindaris the same respectively passed or were situate, and to give the zamindar the right of easement of taking water from the river for irrigation purposes. The following passages in their Lordships' judgment describe the measure of this right at p. 904:
Assuming that the Vamsadhara river belongs to Government, the case may be looked on in this way. The owner of a river and of contiguous land, through which passes a channel constructed for irrigation purposes and supplied with water from the river, grants the contiguous land together with the channel. Obviously some right or easement of taking water from the river must pass. The only question is as to the measure of this right. In their Lordships' opinion, the right 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. The case would have been very different if the contiguous land had been granted reserving the channel.
13. Later on occurs the following passage at p. 907:
There being no evidence whatever that more water is being taken from the river than would be justified by the sanads--construed as in their Lordships' opinion they ought to be construed, it follows that the appellants must succeed in respect of the jirayati lands on which the cesses m dispute were levied.
14. In the result, their Lordships declared that the rights of the zamindar of Urlam under the Urlam sanad to irrigate the Urlam estate from the channels in question or their branches are not limited by any mamool and that the zamindar should not be charged water-cess for the extra cultivation that he carried on with the amount of water he was justified in taking from the river under the sanad.
15. In view of the findings in this case that the source of irrigation belongs to the Government and that there is no evidence to show that more water is being taken from the Government tank than would be justified under the inam settlement, it is argued by Mr. Varadachariar that the principle of the Urlam decision (1917) LR 44 IA 166 : 40 M 886 : 33 MLJ 144 would apply to this case as well and that, therefore, the Government is not justified in levying any water-cess. It appears to me that this contention is well founded; but it is urged by the learned Government Pleader that the decision in the Urlam case (1917) LR 44 IA 166 : 40 M 886 : 191733 MLJ 144 is inapplicable to this case, as here we are, dealing with the rights of an inamdar as against the Government and not with the rights of a zamindar, and further that that decision is based upon a construction of the permanent sanad in that particular case. These observations no doubt are true, but I cannot see how these affect the application of the general principle underlying the Urlam decision (1917) LR 44 IA 166 : 40 M 886 : 1917 33 MLJ 144. The judgment of the Privy Council is not based upon any special or distinctive feature of the Urlam Zamindari Sanad. Their Lordships point out that the effect of the permanent settlement is to vest the channels, with their head sluices and branch and subsidiary channels, and the tanks or reservoirs in the zamindaris, through or within whose zamindaris the same respectively pass or are situate. And then they say, as will appear from the extract that I have already quoted, that, when such a grant or settlement is made, some right or easement of taking water from the river must pass and that right is 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. So long as the measure of this easement has not been enlarged by the grantee in any way, the Government cannot complain. This is the general principle underlying that decision. Inams are Government grants subject to quit-rents, and in some instances to services. The inam in the present case is said to be an ancient one and it was only simply confirmed in the names of the ancestors of the present owners at the time of the inam settlement. There is, therefore, no question of a new contract at the time of the settlement between the Government and the inamdar. It is admitted that engagements arising out of the inam-settlements are engagements contemplated by Act VII of 1865 just like the permanent settlement sanads. The inam title-deed has not been produced, but that does not in my view make it difficult to apply the principle of the Urlam decision (1) to this case. To use language similar to that employed by the Judicial Committee, when the owner of a tank and of contiguous land, in which are situated the sluices and channels for irrigation through which water passes, grants this contiguous land together with the sluices, etc., some right or easement of taking water from the tank must pass. It is obvious Chat such a grant involving such an easement must have been made when this inam was granted. Otherwise, seeing that the tank is reserved for the Government, it would be impossible for the inamdar to cultivate the land granted to him in inam. If this inference arising from the grant is not justified, it will be for the Government to disprove it by producing the title-deed to show the limitations of the inam grant. That has not been done in this case. It follows, therefore, that, so long as more water is not taken by the inamdar than he was taking from the tank at the time of the grant, he cannot be charged any water-cess for cultivating more land with the same amount of water. Though the liability of the inamdars to be charged with water cess under Act VII of 1865 for extended cultivation arose in the Privy Council case, their Lordships did not specifically deal with the question as it was thought for the special reason that the inams in that case were inams within the zamindary. Still their Lordships remark that, if the cess were levied upon her (appellant) as inamdar, she can rely on the same engagement to the same extent as could a tenant of zamindary land authorised by the zamindar to use the water.
16. With regard to the rights of free irrigation depending upon the implied undertaking between the Government and the grantee of the land, an inamdar, a mittadar and a zamindar have all been treated alike by this Court. See The Secretary of State for India in Council v. Ambalavana Pandara Sannadhi ILR (1910) M 366. In support of this statement three cases were cited : Chidambara Row v. The Secretary of State for India in Council (1902) ILR 26 M 66 , Lutchmee Doss v. The Secretary of State for India ILR (1908) M 456 : 1908 19 M LJ 470 and the Urlam case : (1910)20MLJ823 . When the respondent's vakil sought to distinguish these cases on the ground that the first two relate to inam villages and the last to a zamindari formed from Haveli lands, while the suit mitta was carved out of an ancient zamindari, the learned Judges stated,
But it is difficult to see why the same principle -should not be followed, the implied undertaking being based on precisely the same principle in the case of ,the zamindaris and inams.
17. This case, as already observed, was ultimately reversed by the Privy Council on the authority of its decision In the Urlam case (1917) LR 44 IA 166 : 40 M 886 : 33 MLJ 144 . But these remarks of the learned Judges of this Court are interesting in that they show that they were prepared to* treat a zamindar and an inamdar alike with respect to the right claimed regarding free irrigation. Their view as regards the measure and extent of that right was not accepted by the Privy Council. In my opinion, the engagements implied in the permanent settlements and the inam settlements with respect to the matter under consideration should be interpreted in the same manner and in the light of the same principle. Unless the Government proves that the right of cultivation is limited as alleged by it in any particular case by producing the title-deed, I think the general principles underlying the Urlam decision (1917) LR 44 IA 166 : 40 M 886 : 1917 33 MLJ 144 should be applied to the case of an inam as well (at any rate, to the case of a major inamdar), and that an inamdar is not liable to be charged water cess unless he takes more water from the Government tank. Innes, J., rightly states the principle to be applied to cases like the present thus:
Where a channel has been constructed by Government acting as the agent of the community to increase the well-being of the country by extending the benefit of irrigation, and, in pursuance of that purpose, a flow of water is directed to the villages designed to be benefited, it becomes simply a question upon the circumstances of the case whether there has not been a conveyance to such villages in perpetuity of a right to the unobstructed flow of water by the channel. Looking at the permanency of such works and to the permanency attaching to the object, that there was a transfer in perpetuity would seem an almost necessary conclusion, unless there were other circumstances to lead to one of an opposite character. It might of course be capable of being shown that the privilege was granted as a mere license, and that, before the water was allowed to flow to the villages, it had been left open to Government by arrangements then made to obstruct the flow at will at any future period. [See Ponnuswami Tevar v. The Collector of Madura (1869) 5 MHCR 6].
18. The decision in Chidambara Row v. The Secretary of State for India in Council ILR (1902) M 66, no doubt supports the respondent. One of the reasons mentioned as the basis of that judgment is this:
It was the duty of the Inam Commissioner to ascertain and record in the title deed, not the extent of land which was actually under wet cultivatoin at the time of the inam settlement, but only the extent to which the inamdar was entitled to supply free of charge....
19. We have not been referred to any authority justifying this statement. On the other hand, it has been understood that the duties of an Inam Commissioner consisted in ascertaining the ''necessary existing facts with regard to cultivation etc., for the purpose of enabling the Government to fix a proper quit rent while granting an inam. In this connection, the remarks of Sankaran Nair, J., regarding the construction of inam deeds and the interpretation of the entries therein in his judgment in The Secretary of State for India v. Janakiramayya ILR (1912) M 322 : 1912 24 M LJ 365 may well be referred to with advantage. As those remarks are apposite in the present context, I quote them here. Though his judgment was set aside in Letters Patent Appeal, it is interesting to note that their Lordships of the Privy in the Urlam case (1917) LR 44 IA 166 : 40 M 886 : 33 MLJ 144 (PC) arrived at the same conclusions as he did in The Secretary of State for India v. Janakiramayya (1912) ILR 37 M 322 : 1912 24 M LJ 365 regarding the Government's right to levy water cess for extended cultivation in zamindary lands. The remarks are as follows:
Moreover there is nothing in the title deeds or proceedings to show that the inamdar is only entitled to cultivate with channel water those lands entered as wet free of charge and that even those lands arc entitled to exemption only for the first crop. Neither in the despatch from the Government of Madras to the Secretary of State, Revenue, dated 9th August, 1859, with the enclosures thereto giving full information of the intended proceedings to enfrancise inams, nor in the final report of Mr. Blair on the operations of the commission, dated 30th October, 1869, the proceedings of the Madras Government and the despatch of the Sectary of State thereon, dated 10th August, 1871, nor in the mass of records relating to the enfranchisement of inams is there any indication that it was the intention of the Government to advance any claim on account of any excess cultivation or that the inamdar's right was confined to the wet area mentioned in the title deeds. If this was so, the Government could very easily prove it without asking the Courts to upset a practice upon theories. The available records support the contrary conclusion; when water was supplied from Government anicut works, no cess was levied on the mamool wet presumed to have been under wet cultivation at the time of the permanent settlement or the enfranchisement of the inams, but cess was levied on water taken for the irrigation of the rest. That the claim was so restricted to water from Government works is not without significance. The copies of the inam title deeds show that the inam is only 'claimed to be of acres of dry land and acres of wet land'. All information had to be given in the registers as the assessment was fixed at the discretion of Government : no inference can be drawn therefore that any fact therein mentioned was the basis of any contract. In asking the Government to cancel their order that inams limited to a limited number of lives should not be interfered with, the Inam Commissioner said 'it is superfluous to add that in all such settlements every care is taken that the interests of Government do not suffer. A fair addition is made to the present value of the village on account of the prospective improvement from the cultivation of waste lands.
20. Perhaps it is possible to distinguish Chidambara Rao v. The Secretary of State for India ILR (1902) M 66, by noting the special facts that it is a case of a small inam, that possibly the source of irrigation in that case was common to many inamdars and ryotwari holders of lands and that increased cultivation by one inamdar meant necessarily enlargement of the easement enjoyed by him to the determent of the other inamdars. But in view of the Privy Council decision in Prasad Row v. The Secretary of State for India (1917) LR 44 IA 66 : 40 M 886 : 1917 33 MLJ 144, I am inclined to think that the correctness of the decision in Chidambara Rao v. The Secretary of State for India ILR (1902) M 66 is open to question. The same may be said about the decision in The Secretary of State v. Ramanuja Jeer Swamigal (1915) MWN 636 also. That decision is not of much use as it does not contain any discussion of the question under consideration. The decision in The Secretary of State for India v. Srinivachariar ILR (1920) M 421 : 1920 40 MLJ 262 relates to the question whether the full right to the quarries and minerals in a village granted as shrotriem inam passed to the grantee and the decision depended upon the true construction of that grant. It does not lay down any principle useful for the decision of this case.
21. The amount of quit rent to be paid by an inamdar being once for all fixed at the time of the Inam Settlement, it follows as in the case peishcush that the Government cannot by levying water cess increase that amount. In these circumstances, applying the decision of the Privy Council to this case I would hold that the Government is not entitled to charge water cess for the increased extent of land cultivated in their inam village by the appellants in faslis 1323 and 1324. I would therefore set aside the decree of the District Judge and restore that of the District Munsif with regard to the plaintiff's suit for a declaration and injunction as regards Patha Cheruvu with costs here and in the lower appellate Court; but as the Government is the defendant, it is not necessary--as it is not usual--to include in the decree the relief by way of Injunction.