1. This second appeal arises out of a suit brought by the plaintiffs-appellants for a declaration that the levy of penal assessment by the local Government-respondent is illegal. We are in this case concerned with two Survey Numbers 49 and 52 in the village of Chennurivaripalem, which is a hamlet of Krishnapuram. The two survey numbers in question are portions of Kannigala Madugu, a channel which passes through the village of Chennurivaripalem. The trial Court held in favour of the respondent on all the points and dismissed the suit. On appeal the Subordinate Judge has in paragraph 4 of his judgment pointed out various circumstances which, he says, would go to show that really the channel was part of the village of Chennurivaripalem. Having expressed that opinion, the appellate Judge considers in paragraph 5 of his judgment what he considered is the law on the subject. He is of opinion that because the channel in question passes on and serves other Government villages lower down, it must in law be taken that the plaintiffs do not own the channel in so far as it lies within their village unless they prove that the channels were expressly included in the grant of the village. He states that as the whole channel is 30 miles in length and only one mile of its course lies in the suit village, it must be taken that the portion of the channel which is inside the village does not pass to them unless we have an express grant to that effect. In support of this view the Subordinate Judge has referred to certain decisions. Having regard to the decision of the Judicial Committee in the Secretary of State for India v. Vidya Varada Thirtha Swamigal (1942) 2 M.L.J. 367 : L.R. 69 IndAp 22 I.L.R. (1942) Mad. 893 , I think the position is now clear that in such cases it is upon the Government to prove a reservation in its favour either by express reservation or by necessary implication. In the above case, a channel known as the. N.K. Channel took its rise in Government property passed through Government lands, then entered the village of Vagaikulam, of which the respondents' predecessors were the grantees, and after serving the lands in the village directly and through subsidiary channels that branched off from it, the N.K. Channel passed out of the Vagaikulam village and entered Government villages and served those villages. One of the questions raised was whether the channel itself did or did not pass to the grantee. The trial Court held that the channel passed to the grantee under the inam grant. On this and other grounds the trial Court granted a decree to the inamdar. On appeal no opinion was expressed on the question whether the channel passed to the grantee. But on other grounds the High Court confirmed the decision of the trial Court. A further appeal was taken by the Secretary of State for India to the Judicial Committee. A number of questions were raised before the Judicial Committee which are all summarised on pages 900, 901. The third argument runs thus:
that in any event having regard to the importance of the N.K. channel and the subsidiary channels in the irrigation system which the Government had set up and was working, an exception of them must be read by implication into any grant of the village as a whole.
This question is dealt with on page 915. They first repelled the claim that the subsidiary channels also must be taken to have been reserved to the Government. They observed thus:
The subsidiary channels do in some cases carry water which serves to irrigate the lands of other villages so as to give them prima facie at least some right as lower riparian proprietors. Even so, however, their Lordships think it quite impossible to imply any reservation of the beds or banks of these subsidiary channels, haying regard to their number and distribution throughout the village and to the tanks within the village which are connected with them. So to treat them would alter fundamentally the character and value of the grant. It was pointed out in the Urlam case (1917) 33 M.L.J. 144: L.R. 441.A. 166 : I.L.R. 40 Mad. 886 that if any part of the water carried by the channels was to be specially safeguarded in the interest of some other Government villages it would be enough to imply a reservation of water rights; and that a reservation of the channels would raise questions as to the liability of Government for their upkeep and possibly for their management.
Then dealing with the case of N.K. Channel, they said this:
There is more to be said for implying in favour of Government a reservation of the N.K. Channel itself.
The grant itself was not forthcoming and it was pointed out by the Judicial Committee that the evidence in the case was not enough to enable their Lordships to disturb the finding of the trial Court that the Channel passed to the grantee. They say this:
From certain remarks made in the judgment of Varadachariar, J., in a previous case between the present parties, Secretary of State v. Namyana Aiyar : (1937)2MLJ178 a few more facts may be gathered, e.g., 'after flowing through a number of ayan villages this channel at its tenth mile enters the Vagaikulam village and after flowing through that village for three quarters of a mile it enters the Government village of Mannarkoil and finally enters into certain ayan tanks.' But at the moment, their Lordships have not even the assistance of accurate or sufficiently detailed maps of this channel or proper evidence in explanation of them by a surveyor or engineer with knowledge of the locality. The ownership of this channel has been disputed between the Government and the math for a number of years and the question has cropped up and narrowly escaped decision more than once--always it would seem in connection with some small money claim thus coming before the High Court on second appeal as in this case. It was very carefully considered by Varadachariar, J.s in the highly instructive judgment above-mentioned. The trial Court in the present case has held that the N.K. Channel belongs to the inamdar and this has not been reversed on appeal. Their Lordships have some hesitation in the circumstances in touching that finding but as they have arrived at the conclusion that a decision of this question is not necessary to the disposal of this appeal, the matter may still be left open.
There, as in this case, the N.K. Channel first flowed through a number of Government villages, then it entered the inam village, the course of the channel inside the inam village was less than a mile, and after flowing through the Vagaikulam village,' the N.K. Chaneel flowed into Government villages and finally emptied itself into certain ayan tanks belonging to the Government. The Judicial Committee did not consider that these considerations were enough to infer a reservation in favour of the Government even in a case where the grant was not forthcoming. In the present case the lower appellate Court has considered that the fact that the channel in question is of 35 miles in length, that only one mile of its course lies in the suit village and that the channel flows into other Government villages, is enough to imply a reservation to the Government. This view cannot be supported. The Court must now proceed upon the footing that the facts that the channel rises in a Government village, that after flowing through Government villages it enters the inam village, that after leaving the inam village it flows into other Government villages and that the length of the channel inside the inam village is very small compared with the entire length of the channel are not circumstances which would be enough to imply a reservation in favour of the Government. It is not for the inamdar to show that the channel was also included in his village; the presumption is that the channel also is granted along with the whole village. Tanks, channels all do pass to the grantee of the entire village. If the Government sets up that a particular channel by reason of certain special circumstances was reserved, it is for the Government to allege and prove it and the one fact which is relied upon by the Government is not enough. In the case before the Judicial Committee, apparently there were no other facts to determine the question. Here we have the facts found in paragraph 4 of the judgment of the lower appellate Court. The lower appellate Court will have to re-assess the evidence throwing the onus on the Government and find whether in spite of the facts set out in paragraph 4 of its judgment the Government-respondent has proved that the bed of the channel, in so far as it flows through the village in question, has been reserved, i.e., excepted from the grant. The fact that the lands granted were all dry is of no consequence. That, again, must be left out of consideration. Even if the lands are dry, that does not mean that the bed of the channel, in' so far as it flows through the village, has not been included in the grant. As the Judicial Committee points out, it may be that certain rights in the water may be presumed to have been reserved in favour of the owners of the lands situated lower down, but
if any part of the water carried by the channels was to be specially safeguarded in the interest of some other Government village, it would be enough to imply a reservation of water rights; and that a reservation of the channels would raise questions as to the liability of Government for their upkeep and possibly for their management (The italics are mine).
3. These considerations have to be borne in mind before arriving at a decision on this question.
4. There is another question raised by the learned Government Pleader who appears for the respondent, namely, the right arising out of certain resumption proceedings. The village was held in two shares, one of which belonged to one Pattabhiramayya. The half share of Pattabhiramayya was resumed by the Government. There is a question as to what exactly was resumed. The plaintiffs say that what was resumed was only Pattabhiramayya's interest in the cultivated lands of the village and not his interest in the porombokes. There is evidence in support of it. The Government has not clearly stated in the written statement that they resumed the porombokes or the bed of the channel in question. In paragraph 5 of the written statement it is put thus:
This defendant has become owner of a half of the suitinam villages by resumption proceedings duly carried out. S. Nos. 48, 50, and 51 adjoin the suit encroachments in S. Nos. 49 and 52. S. Nos. 48, 50 and 51 are held under ryotwari tenure through the defendant, and the plaintiffs' suit as laid is not maintainable.
5. There is no plea here that the channel itself which is separately demarcated was also resumed. In fact, Ex. 30, which is the New A register shows that the channel has not been resumed. The channel is given various survey numbers during its course through the suit village. 49 is one such number given to it; 51/4 is another; 52 is yet another. I find as against all these numbers there is no remark that it is Government property, for which the expression used regarding lands which were admittedly resumed is ' ayan '. As against all the lands which were admittedly resumed by the Government, there is in column 4 the expression ' ayan,' and in the remarks column, it is said that it is a resumed inam. As against the survey numbers which are assigned to the channel these remarks do not appear; in column 5 it is said to be poromboke and in remarks column, the name of the channel Kannigalamadugu is alone given. With respect to the lands that are not resumed and which belong solely to the plaintiffs, the remark is ' inam ' in column 5. That remark is absent in connection with Nos. 49, 51/4 and 52. Therefore, the omission of the expression either of inam or of ayan as against these survey numbers and the expression that it is Poromboke channel indicates that the Government has not resumed it.
6. The learned Government Pleader then says that the survey numbers resumed by the Government, particularly Nos. 48, 50, and 51 come up to the water edge, that the Government is the owner of the lands on both sides of the channel at this particular point and that therefore the Government is the owner of the whole of the bed of the channel at the particular point with which we are concerned. But this plea has not been clearly raised in the written statement or in the trial Court. There is no plea that the survey numbers, 48, 50 and 51 come up to the water edge. In very many cases, while demarcating the channel, the bunds of the channel are also included in it. Very often, some portions of the land adjoining the bund proper are also included in the channel while demarcating them. It is a special case which ought to be pleaded and proved, namely, that the lands of the Government Nos. 48, 50 and 51 come up to the water edge and that therefore they are entitled by that fact alone to the bed and banks of the channel being the owners of lands on either side. In the absence of more definite plea and having regard to the entries in the register, Ex. XXX, I do not think that it is open to the Government to raise this case.
7. The decision of the lower appellate Court is reversed and the appeal is remanded for disposal according to law in the light of the observations contained in this judgment. Costs of this second appeal will abide and be provided for in the revised judgment of the lower appellate Court.