1. This second appeal arises out of a suit to recover from the defendant who is the Secretary of State for India in Council Rs. 8-13-2 being the water tax collected from the plaintiff by the defendant's officers and paid under protest and now alleged by the plaintiff to be illegally collected. The plaintiff is the pujari of a certain temple which owns a darmila inam, 12 acres and odd in extent. The inam was included in the assets of the zamindari of Guttenadivi at the time of the permanent settlement and was granted to the temple subsequent to it. Hence the word 'darmila' inam (that is, subsequent inam), as opposed to inams granted prior to the settlement and excluded from the assets of a permanently settled estate and afterwards enfranchised by the inam rules in 1861 to 1864. Thus, the suit land is not an enfranchised inam and is part of the zamindari lands of Guttenadivi. The zamindari of Guttenadivi is a small zamindari paying a peishcush of Rs. 651 in Amalapur taluk (vide Maclean's Manual, Glossary, Vol XII under Amalapuram). The river Godavari is cross bunded by an ancicut below the town of Rajahmundry at the village of Dowleshwaram and below it splits up into two branches forming the Godavari delta. The northern branch is known as the Gautami branch and the Southern is known as the Vasistha branch. Between the two branches are the taluks of Amalapur and Razole and the zamindari of Guttenadivi is in the former taluk. The Gautami branch in the course of its progress towards the sea which it joins near Koringa splits up into Innumerable branches which separate and join again forming islands; so that, it is some times difficult to say which is the main stream of the Godavari. The suit lands abut on a branch known as the Addarapu Kalva or Chilapa Kalva. The plaintiff alleged that on both sides of the branch are Guttenadivi lands but the courts below have found this against the plaintiff. They found that while on the one side there are Guttendivi lands, there are on the other side the Government lands of the Yedurlanka village. The plaintiff appellant has questioned the correctness of this finding. For the present, the case will be discussed on the footing that the finding is correct. Both the lower courts dismissed the suit. The District Munsif found (vide paragraph 48 of the judgment) that the Government as owner of one of the bunds is also the owner of the northern half of the bed of the stream. He, therefore, held that the Government is entitled to levy water cess. On appeal the Subordinate Judge held that the stream was navigable and, therefore, belongs to Government. With reference to a contention that the plaintiff is entitled to exercise rights of a riparion owner free of water ceas both the lower courts observed that long user has not been made out in the suit. The plaintiff files this second appeal.
2. Before us in second appeal two points have been elaborately argued. First, whether the stream is a navigable stream at the place where the suit lands abut on it, and secondly, in any event, that the plaintiff is entitled to the exercise of riparian rights free of water cess. On the first question, whether the river is navigable, the District Munsif recorded his finding thus (Paragraph 48 of the judgment):
One of the branches of the Godavari bifurcates into Virudhagantami and Uppaganti Kalva each a mile wide; that Addarapij Kalva takes off from Uppaganti Kalva; that it is four or five miles long, that on one side of it at the point where plaintiff takes out his water there are Government lands and on the other Zamindari lands; that it is navigable in the ordinary sense of the term for big boats for about 6 or 7 months and only for fishing boats later to a disteance of 20 yards in, the remaining period of the year. It is admittedly subject to tidal action. As owner of one of the bunds half of the stream belongs to Government. On this ground, I find that Government is entitled to levy water cess.
It is clear that the District Munsif thought that the river cannot be regarded as a navigable river, for if it could be regarded as navigable, the Government would have been the owner of the whole of the bed, but he held that the Government owned half of the stream. Earlier in paragraph 35, he observed : 'The water is fresh only for four months in the year and that it is brackish during the remaining 8 months, that fairly big boats pass over it from July to January and, thereafter, only small novas and that Chilpa Kalva is navigable for six months for fairly big boats.' The Subordinate Judge said:
The learned District Munsif having fully examined the evidence came to the conclusion that the stream is navigable for big boats for about 6 or 7 months in the year for boats of a load of 15 tons and for the rest of the year for small fishing craft. In this finding of fact also I wholly concur and the result of it is to make it out that the stream is navigable all through the year.
I think the Subordinate Judge has misunderstood the District Munsif's finding. The District Munsif did not hold that the stream is navigable all through the year. In his opinion the fact that only small fishing craft passed through the stream after January is not enough to make it navigable, whereas in the view of the Subordinate Judge it is enough. The question, therefore, arises, whether, on the facts found, namely, that the stream is navigable for big boats for about six or seven months but for the rest of the year for small fishing craft only, the river can be held to be navigable throughout the year; and secondly, whether navigability throughout the year is necessary to make a river navigable for the application of the rule that a river which is tidal and navigable belongs to Government. Taking up the latter question first, the point was fully discussed in the judgment in The Secretary of State for India v. Venkatanarasimha Naidu (1920) MWN 209. Both the learned Judges held that for a river to be properly described as navigable it must be navigable throughout the year. Burn, J., observed at pages 222:
Navigable has always been interpreted to mean 'navigable throughout the year.' J. G. Bagram v. The Collector of Bhullooa (1864) 1 WR 243 Chutvder Jaleah v. Ram Churn Mookerjee (1871) 15 WR 212, Mohini Mohan Doss v. Khajah Assanoollah (1872) 17 WR 73 and The Secretary of State for India v. Bijoy Chand Mahatap ILR (1919) C 390.
With reference to an argument of the Government Pleader in that case that the Calcutta decisions were based on the wording of the Regulation of 1825, he observed:
Assuming this to be so, there seems to me to be no reason to suppose that the public rights in river beds are greater in Madras than in Bengal, at any rate where the banks form portion of permanently settled estates. No Madras authority has been cited which supports the claim now put forward.
Sadasiva Aiyar, J., also refers to the cases in Chunder Jaleah v. Ram Churn Mookerjee (1871) 15 WR 212 and The Secretary of Etate for India v. Bijoy Chand Mahatab ILR (1919) C 390. In the decision in The Secretary of State for India v. Bijoy Chand Mahatab ILR (1919) C 390, Fletcher, J., relies on the earlier decision in Chunder Jaleah v. Ram Churn Mookerjee (1871) 15 WR 212. The case went up on appeal to the Privy Council and was affirmed in the Secretary of State for India v. Maharaja of Burdwan (1921) LR 48 IA 565 : ILR 49 C 103 : 42 M LJ 61, Viscount Cave observes:
From Guruchumbook up to Ampta that is to say, for a distance of about fourteen miles, the river is navigable at certain seasons only, and for present purposes may be treated as non-navigable.
3. At page 111 it was pointed out that the Subordinate judge came to the conclusion
that the whole bed of the river where it ran through the zamindari lands, and the bed ad medium filum aquae where it bounded those lands on one side only, was the property of the zamindar, and accordingly that the churs formed on these parts of the river-bed belonged to the zamindari.
At page 112 it was said,
in dealing with this appeal their Lordships accept the concurrent findings of the Courts as to the ownership of the bed of the river and of the churs formed upon it since the date of the settlement.
4. It is clear from the above quotations that the Privy Council accepted Fletcher, J.'s view in The Secretary of State for India v. Bijoy Chand Mahatab ILR (1919) C 390. The decision in The Secretary of State for India v. Venkatanarasimha Naidu (1920) MWN 209 was followed and the decision in The Secretary of State for India v. Maharajah of Burdwan (1921) LR 48 IA 565 : ILR 49 C 103 : 1921 42 M LJ 61 applied by Devadoss, J., in The Secretary of State for India v. Bala Venkatarama Chetty (1926) 52 MLJ 15, but we are informed that the decision is the subject of a Letters Patent Appeal and I do not wish to rely on that case. But I cannot get over the reasoning of the Privy Council in the Secretary of State for India v. Maharajah of Burdwan (1921) LR 48 IA 565 : ILR 49 C 103 : 1921 42 M LJ 61 and I have come to the conclusion that a river must be navigable throughout the year if it is to be regarded as a naviable river. The Learned Government pleader relied on Orr Eving v. Colquhaun (1877) LR 2 AC 839. It is true that Lord Blackburn observed at page 847 that
there is ample evidence that there had been, at least as long as living memory extended, a user by the public of the navigation in the river, dur (sic) the period of the year when the water was high enough;...and he does not entertain any doubt that the interlocutor, so far as it finds that the Leven is a navigable river free to the public, and that the Defenders have no right to execute works which obstruct the navigation, is right.
But on a closer examination of the case it shows that distinction was drawn between the ownership of the bed of the river and the right to navigate that, though the river was navigable in the sense that the public have a right to navigate it, he applied the rule of medium filum aquae to ascertain the ownership of the bed (vide page 854) and allowed the appeal on the ground that the appellant did not obstruct the public rights of navigation, by the pier he has erected, and for the purpose of the ownership he regarded the river as a non-navigable river (see page 856). This case does not therefore support the Government Pleader's contention. It is true that in America it has been held that it is not necessary that the river should be navigable throughout the year (see Farnham on Waters, Vol. 1, pages 100 to 102, Black's Pomeroy on Water Rights, page 463, Section 218, and Angle on Water Courses, p. 696, Section 537. But having regard to the observations of the Privy Council in Srinath Roy v. Dinabandhu Sen (1914) LR 41 IA 221 : ILR 4242 C 489 : 1914 27 MLJ 419 referring to the observations of Chief Justice Tilghman in Carson v. Blaser (1810) 2 Binney 477 and President Porter in Zimmerman v. Union Canal Company (1856) 1 W&S; 351, applied by Sadasiva Aiyar and Burn, JJ., in The Secretary of State for India v. Venkatanarasimha Naidu (1920) MWN 209, it is unsafe to rely upon the American decisions and apply them to Indian conditions which are sometimes different. The branch of the Godavari near the suit lands is known as Addarapu kalva. The Telugu word 'Kalva' generally means an artificial channel as opposed to a natural stream. ft is clear that at the spot in question there must have been so many changes in the configuration of the branches of the river that the people have ceased to regard this branch as a natural stream. The width of the stream at the place as accepted by the courts below is not more than 100 links or 22 yards (see D. W. 1 quoted by the District Munsif in paragraph 28).
At the time of the tide, there is no water in it.
D.W. 2 also says that at low tide the bed will be quite dry leaving a small quantity of water, knee deep and mud. The above statements are taken from the depositions of defendant's witnesses who will be naturally more inclined to support the defendant. The conditions of this branch seem to be far worse from the point of view of the navigability than those of the river Kistna discussed by Sadasiva Aiyar, J., in The Secretary of State for India v. Venkatanarasimha Naidu (1920) MWN 209. The Government Pleader also attempted to argue that the river was as a matter of fact navigable throughout the year because small fishing craft are able to navigate it from January to July. But that small fishing craft may float over the water is not enough; small fishing craft are very often mere logs of wood on which fishermen sit while fishing and cannot be said to be useful for commercial purposes. In Farnham, Vol. 1, page 100, Section 23, it is observed:
the term includes all waters which for a period long enough to be of commercial value are of sufficient capacity to float water craft for the purposes of commerce, or float to market the products of the country through which the water extends, so as to be useful to the. population along its banks. This is alike the rule of the Civil, English, Common and American Law.
The rule is not satisfied by the mere fact that fishermen take fish from the stream for their own sustenance. The evidence does not show that there is any trade in the fish and that fish from the river are cured and exported to other places along the water way. If there is any doubt about the evidence I would certainly call for a fresh finding allowing further evidence if necessary but I have already extracted sentences from defendant's witnesses. They are far from showing that the river is navigable throughout the year even for small fishing craft. But, assuming as it is, it is not for commercial purposes. I have therefore come to the conclusion on the findings of the lower appellate court and on the materials before us that the river is not navigable throughout the year and therefore cannot be regarded as a navigable river and that no further finding need be called for on the matter. In view of my conclusion on the second point I am about to discuss, it is all the more unnecessary to call for a finding.
5. I now proceed to discuss the second point in the case, namely, whether, by reason of the riparian rights of the plaintiff, he is entitled to use the water free of water-cess. On this matter, the history of the case law in this Presidency may be stated as follows : In The Secretary of State for India v. Swami Namtheswarar ILR (1910) M 21 : MLJ 766, it was held that, where water flowing from a Government source flowed through a sheet of water in an inam and then overflowed the inam, the inam was liable to pay water-cess. One might concede that where water from a Government source directly irrigates the inam, the inam is certainly liable to pay water-cess, but where the water from the Government source naturally flows into a tank or stream within the inam and then the water is used for irrigation, it is only natural rights that are being enjoyed and, therefore, the inam is not liable for water cess. But, however, this view did not then prevail. This case was followed in The Secretary of State for India v. Ambalavana Pandara Satinadhi ILR (1910) M 366 . In that case, where water from two hills, one belonging to the Government and the other to the private party, combined and flowed in a channel between Government and private lands and the water was used for irrigation by a private party, it was held he was using Government water; but to the extent that the accustomed flow at the time of the grant was utilised for irrigation, it was held that the inamdar was not liable to water-cess. But where more water was used than the accustomed flow at the time of the grant, it was held that he was liable to water-cess. In this decision, the decision of the High Court in the Uralam Case, Kandukuri Mahalakshmamma Garu v. The Secretary of State for India : (1910)20MLJ823 , was followed. But the Uralam Case itself and this decision both went up to the Privy Council and I will refer to their effect later on. Meanwhile, before the Privy Council decisions were passed, there was some change in the trend of the decisions in the High Court itself. In The Secretary of State v. Janakiramayya ILR (1912) M 322 : 24 MLJ 365 (a Letters Patent Appeal), it was held by Sadasiva Aiyar, J., that the presumption of ownership in flowing water is rebutted by showing that the bed of the stream over which water flows does not wholly belong to Government. Where half the bed belongs to a private owner, Madras Act III of 1905 cannot be held to abrogate the ordinary juristic principles regarding flowing waters or to create a new kind of ownership in the Government in respect of them which entitles them to impose assessment. His view was that, if there are riparian rights and where the irrigation is limited to the exercise of such rights, there is no right to levy water-cess. But his view that half only of the bed belonged to Government did not prevail, and the other two Judges held in the opposite way. In Sri Rajah Simhadri Raju v. The Secretary of State ILR (1914) M 67 : 28 MLJ 51, it was held by Spencer and Sankaran Nair, JJ., that where a right to take water is proved and established in a. previous litigation, an engagement to give it free of water-cess should be implied, and Government could not levy water-cess. The Secretary of State v. Janakiramayya ILR (1912) M 322 : 24 MLJ 365 was distinguished on the ground that it turned upon the question of the right to the bed; whereas in the case before them there was no riparian right, but the mokhasadars were enjoying the right as a matter of easement. It is somewhat difficult to follow the distinction. If in The Secretary of State v. Janakiramayya ILR (1912) M 322 : 24 MLJ 365 the inamdar had a riparian right and if in Sri Rajah Simhadri Raju v. Secretary of State ILR (1914) M 67 : 28 MLJ 51 the inamdar had a right to easement, one would think that the latter case is not stronger than the former. In Prasad Row v. The Secretary of State for India (1917) LR 44 IA 166 : 40 M 886 : 1917 33 MLJ 144, the Urlam case decided by the High Court in Kandukuri Mahalakshmanamma Garu v. The Secretary of State for India : (1910)20MLJ823 came up before the Privy Council; at p. 894 in discussing the Irrigation Cess Act Lord Parker observed:
If, for example, a ripirian owner irrigates his land with water derived from a river or stream of which it can be truly said that it is a river or stream belonging to the Government, a cess would appear to be leviable even though the Government had never spent a single rupee in improving the source of supply. If, in order to avoid this result, reliance were placed on the first proviso, the question would arise whether it were possible to imply some engagement with the Government arising out of the natural or prescriptive right of the riparian owner.
6. Here I wish to note that these sentences refer only to a case where the river or stream belongs wholly only to Government and it is only in such a case that the cess is prima facie leviable by Government and exemption could be claimed, if at all, only on the ground of an engagement within the meaning of the proviso. But where the river or stream cannot be said to belong wholly to Government, the observations that cess is prima facie leviable and therefore it is necessary to get exemption by reliance on the engagement are not applicable. Where the river or stream does not wholly belong to Government but only a half or no part of it, as where the owners of both sides are private owners and water from a Government source higher up flows into the river, it looks as if in the view of Lord Parker cess is not prima facie leviable. At p. 896, His Lordship then discussed the object of the proviso and his conclusion was that the object was to safeguard the obligation not to increase the jumma. At p. 897, he discusses the question whether the right to irrigate free of water-cess is limited to the mamul enjoyment at the time of the grant. Then after describing the various channels in the case, His Lordship observes at page 904:
Obviously some right or casement of taking water from the river must pass. The only question is as to the measure of this right.
7. He then comes to the conclusion that the measure of the right is not the mamul of enjoyment at the time of the grant but the capacity of the easement granted as shown by the configuration of channels and sluices and such other features. At the bottom of page 905, he observes;
Assuming, on the other hand, that the river Vamsadhara does not belong to Government, the right of taking water from it into each of the four channels could not depend on any easement created by virtue of the permanent settlement. It would depend in part upon the natural rights of riparian owners and in part on prescriptive rights existing at the date of, and passing under, the sanads, or acquired since the sauads were granted.
8. Then his Lordship observes:
The construction of the sanads in the way their Lordships construe them has the advantage of being in ample accord with the known policy and objects of the permanent settlement. * * * * The policy was to encourage such progress.
9. Then he says at page 907 that conclusions of the lower courts were fallacious. The actual case was one of easement and not of riparian rights, but the way in which his Lordship discussed the construction of the sanads and the policy of the Government at the time of the settlement and used it for the purpose of determining the measure of the easement shows that exactly the same principles would apply to determine the effect of the grant even if it were not a case of easement but a case of riparian right. In fact the riparian right and the prescriptive right were put together in the paragraph immediately preceding the discussion of the construction of the sanad. It is true at an earlier page (895), His Lordship observed:
It is a nice problem whether a riparian owner, who is exercising his natural or prescriptive right of taking water from a natural stream for purposes of irrigation, is taking water from a stream belonging to the Government within the meaning of the cess Act.
But that nice problem was only in respect of a stream wholly belonging to the Government. Where the stream does not wholly belong to the Government, but, on the other hand, partly belongs to the riparian owner or does not belong to the Government at all, it is not a nice problem. But assuming it 'is a nice problem in all the cases, there does not seem to be any doubt as to what the answer would have been from the manner in which the question is discussed, at page 906, though the matter had not to be decided in that case. But in the case immediately following it, namely, Ambalavana Pandara Sannadhi v. The Secretary of State for India ILR (1917) M 909, which was on appeal from The Secretary of State for India v. Ambalavana Pandara Sanadhi ILR (1910) M 366, it was conceded by both the parties that the decision of the Privy Council in the Urlam case [Prasad Row v. the Secretary of State for India (1917) LR 44 IA 166 : ILR 40 M 886 : 33 MLJ 144] applied to that case also, When we remember that the case in The Secretary of State for India v. Ambalavana Pandara, Sannadhi ILR (1910) M 366 was the case of a channel in which water from a Government hill and a private hill combined and flowed and the channel flowed though the private owner's land, it is clear that the Urlam decision [Prasad Row v. The Secretary of State for India (1917) LR 44 IA 166 : ILR 40 M 886 : 1917 33 MLJ 144] was held to extend to the case of riparian owners by the decision in Ambalavana Pandara Sannadhi v. The Secretary of State for India (1917) I L R 40 M M 909 (P C). In my opinion the effect of the decision of the Privy Council in Prasad Row v. The Secretary of State for India (1917) LR 44 IA 166 : ILR 40 M 886 : 1917 33 MLJ 144 and Ambalavana Pandara Sannadhi v. The Secretary of State for India (1917) ILR 40 M 909 (PC) was not only to reverse the decisions in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India ILR (1910) M 295 : 20 MLJ 823 and The Secretary of State for India v. Ambalavana Pandara Sannadhi ILR (1910) M 366, from which they arose in appeal, but also to reverse the decision of the majority in The Secretary of State v. Janakiramayya ILR (1912) M 322 : 24 MLJ 365. In Lanshininamsu Avadhanulu v. The Secretary of State for India (1917) 34 MLJ 223 it was held that in the case of enjoyment of riparian rights the inamdar is not liable to water-cess. Sadasiva Aiyar, )., followed his own view in The Secretary of State for India v. janakiramayya ILR (1912) M 322 : 1912 24 MLJ 365, for, though he was then in a minority, he now found he was at liberty to follow that view on account of the Privy Council decision in Prasad Row v. The Secretary of State for India ILR (1917) IA 166 : ILR 40 M 886 : 33 M LJ 144 . I entirely agree with the view taken in Lakshminarasu Avadhanulu v. The Secretary of State for India (1917) 34 MLJ 223, as to the effect of the Privy Council decision. This view is further supported by the fact that the basis of the decision of the majority in The Secretary of Stale v. Janakiramayya ILR (1912) M 322 : 1912 24 MLJ 365, namely, that the whole bed belonged to the Government, a view with which Sadasiva Aiyar, J., did not agree and by reason of which that case was distinguisred in Sri Rajah Simhadri Raju v. The Secretary of State ILR (1914) M 67 : 1914 28 M LJ 51, was itself overruled in the Full Bench decision in Venkata Lakshminarasamma v. The Secretary of State ILR (1917) M 840 : 1917 35 MLJ 159 [see also Neelakandan Nambudripad v. The Secretary of State (1919) 12 LW 371] so that, this is another reason why the decision in The Secretary of State v. Janakiramayya ILR (1912) M 322 : 1912 24 MLJ 365 ceases to be of any authority. And if the whole bed does not belong to the Government, that decision does not apply, there is no nice problem to decide and the principles of Urlam Case [Prasad Row v. The Secretary of State for India ILR (1917) IA 166 : ILR 40 M 886 : 1917 33 M LJ 144 ), apply. In The Secretary of State for India in Council v. Maharajah of Bobbili (1919) LR 46 IA 302 : ILR 43 529 : 37 MLJ 724, a decision of the Privy Council, Lord shaw after quoting the sentences of Lord Parker in Prasad Row v. The Secretary of State for India ILR (1917) IA 166 : ILR 40 M 886 : 1917 33 M LJ 144, have already quoted, referring to the natural or prescriptive right of the riparian owners, says:
that question so reserved is the point now in issue. In their Lordships' opinion such an engagement should be implied in the circumstances already set out. The predecessors of the respondent were using the water as of right when the servient zamindari was forfeited to the crown in 1833; with the owners of that zamindari they had, to use the general term employed in the statute, a good engagement. In taking the servient estate, this engagement accompanied the transaction, and the engagement was thereafter with the Crown.
10. In that case the riparian owner abutting on the channel had a right by prescription to take the water of a river through the channel over the lands of the Zamindar of Palkonda which were since forfeited to Government. It was held there was an engagement not to levy water-cess. Whether it is a natural right or a prescriptive right of the riparian owner, I do not see what difference it makes. The method of reasoning in Prasad Row v. The Secretary of State for India (1917) LR 44 IA 166 : ILR 40 M 886 : 1917 33 MLJ 144, the way in which it was conceded that it applies in Ambalavana Pandara Sannadhi v. The Secretary of State for India in Council ILR (1917) M 909 , the decision in Lakshminarasu Avadhanulu v. The Secretary of State for India in Council (1917) 34 MLJ 223 and finally the decision in The Secretary of State for India in Council v. Maharajah of Bobbili (1919) LR 46 IA 302 : ILR 43 M 529 : 1919 37 MLJ 724, all show that at this day no distinction can be made between the effect of a grant on the measure of irrigation rights granted, whether the enjoyment at the time of the grant was by an easement or as a riparian owner with natural or prescriptive rights. In the present case, the lower courts observe that the immemorial use of riparian rights by the plaintiff is not proved. In this observation the lower courts are, in my opinion, guilty of a misconception of law. A riparian right is a natural right and is not acquired by immemorial user. It exists by law, it may be lost by the adverse enjoyment of another, but it has not got to be enjoyed to be kept up. Whatever the enjoyment at the date of the grant may be, the measure of the right that passes is determined only by the configuration and the width of the river or stream. I therefore think in this case the plaintiff is entitled to draw water from the Addarapu Kalva in exercise of his rights as a riparian owner and so long as he does not exceed those rights he is not liable to water-cess. That in India rights of the riparian owner include also the right to take reasonable quantity of water for purposes of irrigation scarcely admits of any doubts.
11. In the result I would allow the appeal and decree the suit with costs throughout but only with interest at 6 per cent. instead of 12 per cent. claimed.