1. In view of the decisions,, in Kanniappa Mudaliar v. Secretary of State for India : AIR1936Mad42 and Secretary of State v. Veeranna : AIR1937Mad548 these second appeals must be allowed. The appellant is undoubtedly the owner of ryotwari land registered as wet and on the occasion in question water flowed on to his land only through the sluice through which he is authorised to take water. All that is found is that because there was some obstruction caused by some unknown person to a sluice much lower down, the water banked up in the channel with the result that through the customary sluice of the appellant a greater volume of water than might otherwise have flowed did happen to flow. No serious attempt has been made to connect the appellant with the blocking of the channel at the lower point. On bese facts, the principle of the decisions above referred to is clearly applicable, because the appellant could not be said to have 'used' the water in the sense there explained. After those decisions, it is no longer possible to follow the observations of Ayling, J., in Krishna Row v. The Collector of Krishna : (1914)26MLJ210 in all their generality.
2. It does not appear to me to involve any distinction in principle merely to say that in the prior cases water flowed through a breach in the channel, whereas here the excess flow through the customary sluice was the result of somebody's act in blocking up some lower sluice. If the appellant had in some way been connected with the blocking up of the sluice, the position might be different. In the absence of anything of that kind, it cannot be maintained that the appellant, who had already cultivated these lands in an authorised manner, must be held to have improperly used the extra water that came to his lands through his customary sluice without any act of his own.
3. The second appeals are allowed and the plaintiffs given a decree for refund of the amounts claimed to have been illegally levied, with interest thereon at six per cent, per annum from the date of the institution of the suit till date of payment. In dealing with the question of costs, I cannot overlook the circumstances that the state of the decisions as they stood at the time when the assessment was levied was such as to warrant the course adopted by the revenue authorities. In the circumstances, I think the proper order will be that in the Courts below each party should bear his own costs but that in this Court the appellant in each case will be entitled to his costs. Time for payment is three months.
4. Leave to appeal is refused.