Frederick William Gentle, C.J.
1. The appeal arises out of a suit brought by the plaintiff, respondent in the appeal, the Maharajah of Pithapuram, who is the proprietor of a zamindari in East Godavari, claiming compensation for water for irrigating a second crop on the first defendant's (appellant's) inam land situated within the zamindari for fasli year 1347 (corresponding to A.D. 1937-38). It is common ground that the defendant is entitled to water free of charge in respect of the first crop. The learned District Munsiff of Peddapuram dismissed the suit; an appeal by the plaintiff was allowed by the learned Principal Subordinate Judge of Coconada who decreed the suit; the defendant preferred a second appeal to this Court, which was dismissed by Wadsworth, J. This is an appeal pursuant to the Letters Patent by the defendant seeking to have the decree of the learned District Munsiff restored.
2. The appellant's inam land is 48 acres in extent, including a tank of about 3 acres in the centre situated to the south of the river Yeleru over which river the respondent has proprietary rights where it runs through his zamindari. The northern end of the appellant's inam is about one furlong distant from the river, other land being situated between the north boundary and the river bank. The respondent's land is on the east, west and south sides of the inam. A channel, known as the China Thadi Doddi Kalva, runs southwards from the river bank, between the land north of the suit inam and the respondent's land, for about one furlong ; it then continues in the same direction between the inam and the respondent's land for about another furlong until it reaches the tank. The channel has an open head at the river and the flow of water into it is not controlled by the respondent and he has no authority to close it. Water flows from the river through the channel into the tank. The channel does not supply water save to the appellant's tank and from where it is drained of for the purpose of irrigating the inam land. All the water flowing through the channel is exclusively for the appellant's use on his land and is his sole supply. If, at any time, the water in the river sinks below the channel level, the appellant dams the river, thereby increasing the water height so as to enable water to flow from the river into the channel. He carries out all maintenance and repairs to the channel. The suit inam is in the village of Mallam ; throughout the year, covering the period of two crops, the turn system is in operation by which, in every cycle of 18 days, water flows to all villages of the Pittapuram Estate, including Mallam, for six days and out of which it flows for three days through the channel to the appellant's tank ; another channel or other channels convey water to other lands in this and in other villages. Prior to fasli year 1347, no demand was ever made by the respondent for water rate for a second crop irrigation from the appellant although, for many years, water rate has been demanded and paid in respect of other lands in the estate which are supplied by channels other than the China Thadi Doddi Kalva.
3. The appellant acquired the suit land by purchase in 1903. His predecessor in title were called the 'Thota people.' The grant of the inam land in suit was made before the Permanent Settlement of the zamindari in 1802. No record is available regarding the land until 1860. In the Register of Inams, dated February 23, 1860, Ex. D-7, an entry relating to the inam records, in column 3, whether dry, wet or garden, 'wet', under columns 14 and 15, the names in which the lands were entered in fasli 1208 (A.D. 1798) and fasli 1244 (A.D. 1834), under column 20, that the inam can be confirmed as personal. Ex. D-9 is an extract from the register of the Settlement of the rights of the land in suit, no entry appears under column 3-'wet (ordinary or mamool, single crop or double crop), garden, etc.' Ex. P-2 is an extract dated September 3, 1902, from the respondent's permanent register ; it records, in column 5, that the land is wet and in column 6, headed 'Single crop or double crop,' is the figure ' 1 ' which appears to indicate single crop. Ex. P (3) is an entry in the respondent's register dated November 13, 1934, similar to Ex. P (2). These two registers are not kept by any public officer or at a public office and are solely the respondent's private records. Exs. D-1 and D-2 dated June 14, 1915, and January 29, 1916, are leases of the land by the appellant to a tenant for one year, each containing a covenant requiring the tenant to leave the land at the end of the tenure as required by the new ryot for seed beds and sugarcane. Sugar-cane, or dufasal crop, requires irrigation twice yearly and, to all intents and pur-poses, can be treated in the same way as a second crop of paddy. Indubitably, if water rate for a second crop were chargeable, it would be levied in respect of a dufasal crop.
4. The learned District Munsiff in the trial Court, accepted the evidence given by the karnam of Mallam village, who was called on the respondent's behalf, the appellant, his tenant until about 1924, of the suit inam, and a neighbouring cultivator. He rejected the testimony given by two other witnesses called for the respondent, which, to a limited extent only, conflicted with the other evidence,. The learned Subordinate Judge, in his judgment on appeal misstated some of the oral and documentary evidence ; he said the documentary evidence showed that, whenever a second crop was raised, the respondent levied water rate from the appellant and that sugarcane crop was not raised continuously during the last ten or twelve years. That is not in accordance with the documents or oral evidence. The findings of fact by the learned District Munsiff stand.
5. A resume of the facts, whether admitted or established by documentary and oral evidence, reflects as follows : The grant was made before the Permanent Settlement in 1802 ; in 1860 the land was described in the Inam Register as ' wet,' the column in which it is so described does not require a special description, whether single or double. A sugarcane crop can be treated as a second crop. A second crop was raised in each year from 1893 to 1903 and for at least seven years after the appellant purchased the land in the latter year, including the years 1915 and 1916, and also from 1932 or 1934 to 1944 until the trial of the suit in 1944. According to the appellant there was always a second crop after he acquired the property in 1903. Throughout the whole of that period the respondent did not demand nor seek to charge for a second crop irrigation until 1937-38, although in 1902 and 1934 the suit land is entered in his register as single crop wet land, and although other inamdars were so charged. The appellant's inam is wet land and the water for it is conveyed by an open headed channel which is exclusively utilised for that purpose and supplies no other person or land. The respondent does not control the flow of water into the channel and has no right to prevent the flow. The appellant maintains and repairs the channel, he dams the river without let or hindrance, whenever required, to enable water to enter the channel. Throughout each year the turn system is in operation by which water is conveyed through the channel during three days out of every succeeding 18 days, covering the period of both single and double crops. The tank is very old, it dates from time immemorial, it is solely supplied by the channel and as the land is wet, a source of supply must have existed, certainly by 1860, and doubtless long before that year. It has not been suggested there was, at any time, any conduit for water from the Yeleru river to the appellant's land, save the China Thadi Doddi Kalva ; whilst the respondent never sought to charge the appellant for a second crop he has done so in respect of owners of other inam lands for water conveyed by channels other than that which exclusively supplies the appellant.
6. As above stated, the Permanent Settlement of the Pittapuram zamindari to the respondent's ancestor was in 1802 after the grant of the suit inam land to the appellant's predecessor in title. As observed by Lord Parker at page 905 in the judgment of the Board in Kandakuri Bala Surya Prasad Row v. The Secretary of State for India in Council (1917) 33 M.L.J. 144 : I.L.R. Mad. 886 : 44 LA. 166 usually called the ' Urlam case '
the Government could not grant the zamindaris otherwise than subject to the customary rights of the ryot cultivators and the rights of all holders of inams under existing inam grants. The zamindars in whose favour the sanads were made, took therefore subject to those rights.
When the Pithapuram settlement was made, it must have been subject to the rights of the inamdar of the suit inam, whose rights must have been recognised at that time. In the Urlam case the messure of the right to take water is expressed at page 904 by their Lordships of the Judicial Committee thus:
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 purpose for which the grantor or his tenants have been accustomed to use water from the channel prior to the date of the grant.
In Yahya Ali Saheb v. Secretary of State : AIR1928Mad97 it was observed that, even if the area of cultivation is increased, an extra charge for water is not justified so long as the water utilised is no more than that which was previously received and to which the inamdar is entitled. In Secretary of State for India v. Srimath Vidhya Sri Varada Thirtha (1942) 2 M.L.J. 367 : I.L.R. 1942 Mad. 893 (P.C.) the Board pointed out, at page 919 of the report, that the inamdar is entitled to such water, upto the capacity of the channel, as can flow into it, the condition of the river or upper channel being what it is from time to time. In the present instance it is of peculiar significance that (1) the appellant has the right to the exclusive use of the water conveyed by the channel; (2) when the level is too low to permit water entering the channel, the appellant can dam the river to raise the water ; (3) the flow of water into the channel is uninterrupted during three out of each successive 18 days throughout the whole year ; and (4) the flow of water is not subject to any control by the respondent.
7. Mr. Raghava Rao for the respondent sought to distinguish the right of an inamdar, when his channel lies within the inam, e.g., in the case of an inam village, from the right in respect of a piece of inam land where the channel conveying the water is outside the inam and merely discharges water into the land ; learned counsel described such inam as a minor inam and contended that it does not have the same characteristics or rights as a major inam, such as a village. Thus, it was sought to distinguish the present case from the inams in the cited cases. The existence of a difference between a minor inam and a whole village inam and a zamindari appears to have received acceptance by Wadsworth, J., who expressed the opinion that when there is a grant of a single field, specified as 'wet,' in the absence of any indication that that wet land has a right to water for a double crop free of charge, there can be no inference that water capable of being used on the land for a second crop or for a dufasal crop, can be taken free of charge. The learned Judge added that the inference to be drawn from the terms of a grant of a minor inam must have regard to the manner in which water rights in individual fields were normally recognised.
8. The terms of the grant of the inam land in suit have been lost and in an endeavour to ascertain what were those rights, consideration must be given to all the surrounding facts and circumstances. The land is wet and is situated away from the river Yeleru. Water was essential and provision for its supply would, of necessity, have been made in the grant. That provision must have been by way of China Thadi Doddi Kalva, which supplies the inam land alone and no other land and no person other than the proprietor. The entry in the 1860 register describes the land as wet, without restriction as to the water to which the proprietor was entitled. Without let or hindrance the appellant is entitled to dam the river, when the level is below the channel head, in order to obtain a flow of water into the channel, and water is received during three days out of 18 successive days throughout the year, uncontrolled and unrestricted by the respondent. The appellant alone carries out the maintenance and repairs to the channel. No charge for water for a second or dufasal crop was ever sought to be made before 1937, in spite of the land being recorded as single crop wet in the respondent's own registers of 1902 and 1934 and in spite of other inamdars being charged for water conveyed by other -channels. These circumstances alone reflect an absolute right to all water through the appellant's channel, free of any charge. In addition there are further facts. At the latest, a dufasal crop was raised in 1893. While there is not express testimony in regard to every year thereafter, but the- testimony of the tenant relates to the period from 1893 until 20 years before he gave evidence in 1944, i.e., in 1924, borne out by that of a neighbouring landholder and the admission by the respondent's witness that a dufasal crop was raised from about 1932 or 1934 to 1944; further, the appellant himself said water for a second crop was used ever since he bought the land in 1903.
9. In my view, the proper inference to draw from the evidence is that, ever since 1893, at the latest, until 1937 water has been supplied by the channel to the inam every year for a second or dufasal crop, continuously and uninterruptedly and for which no charge has been sought to be made. No suggestion was made of any demand for a charge at any time prior to 1893. The demand was first made about 1938 when the present claim for compensation was put forward by the respondent in respect of that year. In 1893 or even later, if the inam land in suit had not been entitled to water for a second or a dufasal crop free of charge, an assertion of a right to payment for it assuredly would have been made. The only inference to draw from the foregoing is that, in the original grant, the inamdar was given a right to all water; the measure of his right being of all water conveyed by the channel from the river; it could be used for a second as well as for a first crop free of all charge. I am unable to see that, in the present instance, a minor inam though it may be; the incident regarding the right to water is in any way restricted. In this respect I am unable to agree with the view expressed by Wadsworth, J.
10. If the opinion which I have expressed is not correct, the question then arises whether the appellant has acquired a right by prescription to water for a second crop free of charge. Such a right or easement is capable of acquisition after 20 years of continuous and uninterrupted user Vide Idara Pitchiah v. Zamindar of Venkatagiri (1928) 59 M.L.J. 111 and Pakala Venkanna v. Rajah of Bobbili The evidence and the facts and the circumstances relating to the period from 1893, to which attention had previously been drawn, establish fully that the requirements of the acquisition of such a right by prescription have been satisfied.
11. In my opinion the decision of the learned District Munsiff was correct and those of the two appellate Courts were wrong. The appeal should be allowed with costs throughout including the costs of this appeal and the decree of the trial Court restored.
12. I entirely agree.