88. To enable us to decide this appeal satisfactorily, we consider it desirable to allow the parties to adduce further evidence on the following point:-- j, (1) What, if anything, passed to the grantee under Exhibit XX under the words ' besides poramboke ' and whether she obtained a right to the channels conveying water to the tanks irrigating the lands of the Lakkamdidi village or to those tanks themselves ?
89. The lower Court has not dealt with this point in its judgment, but appears to have assumed that the Government did not reserve the channels and tacks at the time of the Inam settlement.
90. We request the District Judge to take the additional evidence that the parties may adduce and to submit the same together with his opinion on the effect of such evidenoe within one month after the re-opening of the District Court after the recess.
91. In pursuance of the above order, the District Judge of Ganjam took additional evidence, both oral and documentary. As regards the oral evidence ho found that it was of very little use. The accounts given by the witness might be sot aside as of little value in coming to a conclusion on the question whether the inamdars of the plaint village of Lakkamdidi were entitled to the beds of the plaint Yellamanohili channel and its sub-channels so far as those beds lay within the limits of the Inam village of Lakkamdidi.
92. As regards the documentary evidence he found that the plaint village of Lakkamdidi was one of the villages in the Chicacole Haveli. Before 1766 the Haveli belonged to the Mogul Emperor. The Emperor granted the management of the Ciroars to the East India Company, which leased the lands in Chicacole to one Sroaram Eaz. The latter granted Lakkamdidi to Kannepilli Kamavadhanulu for subsistence. It was Yekabogha Agrahar up to 8th February 1861 on which date the holder of the village died leaving Kannepilli Venkataratnamma,--his childless young widow (see Recitals in Exhibit 16). The Haveli lands were resumed by the Government from the temporary lessees and sold in lots in 1803 and 1804 to the highest bidders on permanent settlement. Twenty proprietary estates were formed by the sale o the Chicacole Haveli lands in 1803. One of them was Jarjangi. The plaint Agraharam village of Lakkamdidi was within Jarjangi. The proprietors of those twenty estates were entitled to get only Tcattubadi. The Government seemed to have reserved to themselves the reversionary right in the inam tenures included in these proprietary estates. (See page 149, Exhibit N.) There oould be no doubt that Lakkamdidi was an Yekabhoga Agraharam (whole village inara), enjoyed by Brahmin inamdars. Besides the major whole village inams there were minor inams which related to grants of defined extents of lands as contrasted with grants of entire villages (see paragraph 29, page 155 of Exhibit N).
93. A reversionary right to resume the inam on failure of direct lineal heirs seomod to have been always asserted by the Government [Gunnaiyan v. Kamakchi Ayyar I.L.R. (1903) Mad. 339, In 1854, the Government wished to give up their reversionary interests in the whole village inams and similar inams situated in the zamindaria, after fixing a permanent quit-rent. The Deputy Collector, as Inam Commissioner, being appointed to fix such values, prepared the register for Lakkamdidi (Exhibit 16). The whole village of Lakkamdidi was an Yekabhoga inam till the middle of the 19th Century. Then one-tenth of the village area seemed to have passed to Ravi Janikiramayya by a court auction sale and nine-tenths was enjoyed by Kannepilli Venkataratnamma. Two title-deeds were issued to Venkataratnamma and Janikiramayya in 1867. Neither of these is forthcoming now. The form of grants then obtaining in respect of whole village inam title-deeds appeared from Exhibits K, K-7, K-10, K-11, L--1, 2 (a) and 2 (b). The form in the first page first set out the grantee's present title and was then followed by the Government 'proposals to give up their reversionary right in consideration of a quit-rent. Then on the second page, the conversion into free-hold in favour of the grantee was entered as the grantee had agreed to pay the quit-rent demanded. The form in page 1, paragraphs 1--3 was as follows:
1. On behalf of the Governor in Council of Madras, I acknowledge your title to the shrotriom village of...claimed to be of...acres of dry land and...acres of wet land besides poramboke.
2. This inam is subject to a jodi or quit-rent of...and is hereditary, but it is not otherwise transferable ; and in the event of failure of lineal heirs it will lapse to the estate.
3. On your agreeing to pay an annual quit-rent of...inclusive of the jodi already charged on the land as above said, your inam tenure will be converted into a permanent free-hold.
94. Venkataratnamma got her title-deed in this form (dry and wet lands 'besides poramboke'). It had to be observed that in the case of minor inams, the title-deeds issued about that time did not contain the manuscript additional words ' besides poramboke.' Act VIII of 1869 made clear that only the rights of Government were intended to be granted and that no proprietary right in the soil (which did not already exist in any particular inamdar) were intended to be newly given. About 1898 Venkataratnamma wanted a renewal of her last title-deed of 1867. Exhibit 20 was issued to her on 20th June 1898. Although this title-deed varied from that of 1867 in some particulars, it 'followed the old form including the insertion of the manuscript words, ' besides poramboke' after the mention of the area of dry, wet and. garden lands. As regards the meaning of these words ' besides poramboke,' one very important entry, appeared in Exhibit K-2 (the Lukulam Register of 1862). The Inam Commissioner first mentioned the gudikat extent of the lands in Lukulam for purposes of valuation. He then deducted the extent of poramboke in favour of the inamdar [poramboke consisting of (a) the bed of the river Vamsadhara, (6) paths, (c) pasture land, (d) burial grounds, (e) channels, (f) sandy deserts, (g) sandy heaps in the bed of the river, (h) tanks and (i) village sites]. Then he made this important note: 'The agraharamdars have nothing to do with the bed of the river,' that is, he denied their titles to the items marked (a) and (6) above out of the poramboke items but he did not say that the agraharamdars had no right to the other poramboke areas, items (b) to (f), (h), (i) which included the channels (e) and tanks (h). The Government must have intended by the insertion of the words ' besides poramboke ' in the major inam title-deeds issued between 1863 and 1867 to acknowledge the title of the inamdars to the poramboke lands along with the cultivated dry, wet and garden lands. The insertion of the words could not moan that only the Government right to revenue from poramboke land was given to the inamdar, because poramboke lands were not assessed to revenue. The interpretation of the words as meaning 'excluding poramboke' or ' the Government reserving to itself the poramboke ' was to say the least, far-fetched. By the words ' besides the poramboke ' the Government acknowledged the title of the inamdars of the whole inam village to the channel beds, and tanks in dispute.
95. This Appeal coming on for final hearing, after the return of the finding of the Lower Court, and the case having stood over for consideration the Court delivered the following
96. The District Judge (Mr. Sadssiva Ayyar) has submitted the fresh evidence adduced both by the plaintiff and the Government and has expressed his opinion ' that by the words '' besides poramboke ' in the inam title-deed, Exhibit XX, given to the inamdar--proprietor of the village--the Government acknowledged the titlo of the inamdar to the channel beds and tanks in dispute. The claim of the Government to water-cess cannot be maintained unless the water irrigating the village flows directly or indirectly from any river, stream, channel, tank or work belonging to or constructed by Government. According' to the former District Judge's finding the Garebulagedda which irrigates the lands in the village takes its rise in the Parlakimedi zamin-dari and does not pass through any Government lands before it irrigates the plaint village ; and the Government has not exercised any control over the gedda. But it was contended at the former hearing of the appeal that, although there is no evidence that the channel or stream and the tanks irrigating the village belong to Government it must be presumed that the ownership thereof is vested in it by virtue of Section 2 of Act III of 1905 (Madras Land Encroachments Act) which enacts (we quote only the necessary portion of the section) that' ...the bed of the sea and all harbours and creeks below high water mark and of rivers, streams, lakes and tanks and all canals and water-courses and all standing and flowing water and all lands wherever situated, save in so far as the same are the property (o) of any zamindar, poligar, mittadar jagbirdar, shrotriemdar, or inamdar or any person claiming through or holding under any of them...are and hereby declared, to be the property of Government, except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners and all customary rights legally subsisting.' It was contended for the plaintiff, the inamdar, that the section does not really alter the law as previously under-stood and that the channels passing through the whole inam village cannot be presumed to be the property of the Government. We considered it desirable to call for a finding on the question whether by the grant of the inam to the inamdar the title to the channel irrigating the village belonged to the inamdar.
97. The original inam title-deed which was granted by the Government in 1867, has not been produced. It is stated to have been destroyed, A fresh title-deed which was granted in 1898 has been produced and is marked as Exhibit XX. An extract from the Inam register, Exhibit XVI, has also been produced. It appears from it that the Inam was originally granted in 1767 to one Kannepalli llamavadhanuln as personal hereditary inam by Sitaramraz. Sitaramraz was the brother of Viziaramraz, the then Zamindar of Vizianagram. He wagta renter under the East India Company which had obtained a Mrman from the Moghul Emperor granting the management of the circars to the Company. The village in question was included in the Chicacole Haveli in 1802. The Governmen sold its Haveli lands in 1803-04 to the highest bidders on permanent settlement; and 20 proprietary estates were formed by the sale of the Chicacole Haveli. The village in question is situated in one of the zamindaris so formed named Jarjnngi. The inam village was excluded from the permanent settlement of the Jarjaugl Estate. The proprietor of the estate was entitled only to get the kattubadi fixed on the village, the right of resumption of the inam being reserved by the Government. The Government subsequently recognised the inam granled by Sitaramaraz and settled the inam with the inamdars and granted a patta to them. The inam register Exhibit XV[ does not show that the Government intended to exclude any portion of the inam which had been originally granted in 1767. Exhibit XVI shows the mode in which the quit-rent payable for the village was fixed) the porambpkes consisting of channels, tanks village sites, pattis, burial grounds, hills as well as jungle and pasture lands together amounting to 116 acres was excluded from the total acreage of the village. The assessment was fixed on the cultivated dry and wet land. Exhibit XX, the inam patta of 1898, shows that the Government acknowledged the title of the inamdars to the whole village. It states : ' I acknowledge your title to a personal inam consisting of the right to the Government revenue of land claimed to be 108'38 acres of dry, 218'53 of wet and 13 acres of garden and situated in the Jarjangi proprietary shrotriam portion of the village of Lakkimdidi of Chicacole, district of Ganjam.' The words ' besides poramboke ' are inserted in the margin, the extent of this poramboke being as appears from Exhibit XVI, 116 acres. the District Judge assumes that the original title-deed must have also acknowledged the inamdar's title to the shrotriam village said to consist of a certain extent of dry and wet land besides poramboke. This assumption is based on the form of grants issued in respect of whole village inams as appearing from the title-deeds granted by the Government for other villages produced on behalf of the plaintiff, Ibis unnecessary to consider whether this assumption was safely made. It is contended on behalf of the Government that the object of the Inam title-deed was only to recognise the inamdar's title to the Government revenue or melvaram of the village and in cases where the inam was enfranchised to give up the Government's right of resumption; that as no melvaram was levied or payable on porambokes there could have been no intention to recognise the inamdar's title to any poramboke by the grant of title-deed. We do notdecide in this case that the mere insertion in the maigin of the title-deed of the words ' besides poramboke ' must necessarily be taken to be' an acknowledgment by the Government of the inamdar's title to all kinds of poramboke. It was held in Narayanaswami v. Kanniappa Second Appeal No. 1445 of 1910 by this Court that such is not the necessary effect of the insertion of those words. The question in that CHBO related to the bed of a stream. The inam there was granted by the British Government in 1802 in lieu of certain lands held as emoluments of the office of Nattirvar which had been resumed by the Government. No boundaries were stated in the documents relating to the grant and no mention was made of the river or river-bed. The Court held that notwithstanding the insertion of the words besides poramboke 'in the margin of the title-deed the documents in the case showed that it was not intended to acknowledge the inamdar's title to the bed of the stream. In Ambalavana Pandara Sawnadhi v. Secretary of State for lndia I.L.R. (1905) Mad. 539 it was held that a grant of village ' with all wells, tanks and waters ' within the boundaries did not pass to the grantee an artificial water-course then existing which irrigated the village granted and other lands. There was no mention in the grant of the channel although the existence and importance of channels as separate entities was present to the mind of the grantor and although tanks and wells were separately mentioned. It was held that the. omission of the channel was intentional and that from that circumstance it was clear that itcould not have been the intention of Government to recognise the inamdar's title to the channel or its bed. The effect to be given to the insertion of the words ' besides poramboke' must depend on the evidence available in each case and the circumstances attending the grant, In this case it is extremely unlikely that when the whole of th0 village was granted in 1767 by Sitaramrasa it was not intended to convey to the grantee all the waste and porambokes in the village. The British Government accepted that grant and recognised the inamdar's title under it. The channel was not one which passed through any Government property before it reached the village of Lakkimdidi. It is apparently not a large stream connected with any system of irrigation maintained by Government and as found by the former District Judge the channel was not controlled by the Government to any appreciable extent. There was no intention on the part of Government at any time to derogate from the grant made in 1767. Both of the learned District Judges who dealt with the case proceeded on the footing that the channel and other poramboke in the village belonged to the inamdar. On the whole we see no reason to dissent from that conclusion. It has therefore not been proved that the water irrigating the village belongs to Government. In the result, we dismiss the appeal with costs. The memorandum of objections has not been argued and is also dismissed with costs.
Second Appeals Nos. 1831 and 1834 of 1908.
Sankaran Nair, J.
98. The plaintiff is the inamdar of Adangarkulam village Nanguneri taluk. He states that a natural stream, Hannmanadhi which takes its rise in the Western Ghats flows through his village ; that he has been taking the water of that river to his tanks, six in number, at certain Beasons of the year when it was required for the irrigation of his lands ; that in order to divert the water into his channels he had to put up a dam across the river-bed as the river is on a level lower than that of the channels and water could not flow into liem when it was knee-deep or less than that and that he has been doing so, according to him, from time immemorial. The dam consisted of a masonry anicut with intorstioes between the vertical stones which he filled up when necessary, with mud or palmyra leaves. The plaint states that the masonry anicut in some places was damaged and he had therefore, to put up a temporary mud dam in front of it, for diverting the water into his channels. The first defendant the Government, recently levied an assessment from him for taking the water into his tanks. The other defendants are the ryots of some of the neighbouring villages who also deny plaintiffs' right to take water as claimed by him. He therefore seeks a declaration of his right to take the water of the stream to his tanks by diverting it into the channels and for that purpose to put up a dam across the river-bed, and also a declaration that the Government had no right whatever to levy any tax on him for taking such water. The first defendant who in the Secretary of State for India in Council denies that the river where it passes through his village belongs to the plaintiff. It is asserted that the river belongs to Government and that the plaintiff at the time of the inam grant did not acquire any rights claimed in the plaint to the use of the water. It is also denied that the anicut belongs to the plaintiff or that he is entitled to put up any dam across the river or to take water as he alleges through the channel for purposes of irrigation. The Government also allege that the plaintiff can only take water to irrigate the lands which were under wet cultivation at the time of the inam grant and that the assessment was in posed because he utilized the water of the stream for the purpose of raising nanja crop on lands on which it was not usual to raise before. The other defendants also deny the plaintiff's right. They allege that if the plaintiff is allowed to take water as claimed by him irretrievable loss and injury would be caused to the defendants who hold lands below. The right of the Government to the river bed, however is not accepted by them in their written statement.
99. The facts which are admitted or proved beyond doubt are--the Hanumanadhi river takes its rise in the Western Ghats and after running through various ryotwari villages in the midst of which the plaintiff's inam village is situated flows into the sea. Three of the hamlets belonging to this village lie on the western side of the river and the fourth or the last one, Uramali hamlet lies on the eastern side of it. For the irrigation of the lands belonging to these three hamlets lying to the west of the river, there are five tanks and there is one tank for the Uramali hamlet on the east side of the river. The masonry anicut which is referred to in the plaint is built across the river-bed to raise the level of the water to divert it into the channel which takes water for the stream to the five tanks of the three hamlets. That masonry anicut being now in disrepair the plaintiff has put up a mud-dam in front of it to divert the water. At some distance below that anicut the river bifurcates and at or near the point of bifurcation the plaintiff has put up a mud dam to prevent the flow of water along one of the branches and to make it flow into the other, that is the eastern branch that he might take it into his Uramali tank.
100. The plaintiff's case is that this system of taking water into his tanks has been in existence from time immemorial. The subordinate judge has found that the anicut across the bed of the river was built by the plaintiff's predecessors within the limits of the Adangarkulam village, that the river Hanumanadhi ran through the village both the banks of the river belonging to the plaintiff. He also found that he was a riparian owner of the inam village. The question whether ho was a riparian owner was raised apparently with reference to the plaintiff's claim as an inamdar. On the question whether the plaintiff was entitled to take the water he found that the plaintiff as a riparian proprietor was entitled to take the water for the irrigation of his own lands without causing any material injury to the other riparian proprietors and that the method he had adopted of constructing anicuts for the purpose of damming the river was in the circumstances of the ease, the only reasonable method of enjoying his right. He also found that no material injury was thereby caused to the other riparian proprietors. He also came to the conclusion that the plaintiff's predecessors-in-title had been putting up the dams in question and thereby diverting the water of the stream into his channels for a very long time probably from the year 1803 and certainly for more than 30 years. He was therefore of opinion that even if the plaintiff's natural right to take the water as a riparian proprietor has not been proved he has proved a right by prescription to take the water and he was also of opinion that in the circumstances of the case there is a presumption of a grant by the Government in favour of the plaintiff. He further held that the first defendant was not justified in imposing penal assessment on the ground that the plaintiff had pat up a dam and that the plaintiff as a riparian owner was entitled to the use of his stream to irrigate his inam village to any extent provided he did not thereby interfere with the rights of the other riparian owners either above or below him. It was also held that it was only when the plaintiff used Government water for the irrigation of any lands in excess of the original area that the Government had a right to raise any revenue on that account and that this was not Government water in that sense. The other questions which were argued before him and decided are not material for the purposes of this Second Appeal. 11 e accordingly passed a decree in favour of the plaintiff declaring his right to put up a dam in the river.
101. In appeal it is first contended before us that the finding of the Judge that the dam erected at A in the plan across the bed of the river to take water to the five tanks is within the plaintiff's village of Adangarkulam is wrong. The Survey plan of the inam village of Adangarkulam on the west of the river and of Thanaikulam on the east of it, shows that the bed of the stream is included within the limits of Adangarkulam. The river at that place is called Adangarkulam river in the Pymash accounts and is described as the boundary of another village, Kalyanakulam also on the eastern side (k). The Government Revenue accounts of 1803 treat the bed of the stream adjoining it as part of the Adangarkulam village (Exhibits E,E-1, and E-2). These are the reasons given by the learned Subordinate Judge for his finding The Advocate-General however states that though the village is recognized as belonging to the plaintiff and the descriptions of the boundaries and the Revenue accounts of the village may show that the river bed is included within its limits, ye I, unless it is expressly stated that the river bed is conveyed it will not pass and ho relies upon the decision in Narayanaswami v. Kanniappa Second Appeal No. 1445 of 1910 and in Kondappaneni Kotayya v. Ganguru Seshayya (1913) 14 M.W.N. 495. That was a case of a grant on shrotriem tenure and it is stated in the judgment that the object of the grant was to make a provision for an official whose office was no longer necessary and ' what was regarded was the land as producing an income. ' In the case before ns there is no grant produced. There is therefore nothing to rebut the inference drawn by the Subordinate Judge from the facts above set forth. It also appears that the plaintiff and his predecessors have been exercising acts of ownership in the bed of the stream by putting up stone pillars. Moreover when the plaintiff applied to the Inam department of the Revenue Board office that the poramboke in the village may be ordered to be expressly included in the Inam patta he received this reply, ' It is not the practice to enter the extent of poramboke lands too in the pattas issued on the Settlement of the whole village. The term entire village includes the poramboke and all other lands which are within the four boundaries and comprised in inam patta Hub. The inamdar, therefore, may enjoy in any way he pleases all the lands within the boundaries of each village. There is no necessity to pay separate tax to Government for it ' (Exhibit S). I uphold the finding of the Subordinate Judge on this question.
102. It is next urged by the learned Advocate-General that the plaintiff's claim to erect a bund or dam up a river is unreasonable. The plaintiff is a riparian proprietor : ho has a natural right to use the water of the stream for irrigating the lands of his Adangarkulam village provided he does not thereby cause any material injury to the other riparian proprietors. What quantity of water he is entitled to take and how he is to take it for irrigating the lands must depend upon the circumstances of each case. Erecting a dam or bund across the bed of a river when it is low to raise the water to a sufficient height to divert it into an artificial channel for irrigation is one of the common methods in this Presidency of using the water of a stream by a riparian proprietor. That a dam may be erected when it is reasonably required for the use of stream water is recognised by the Judicial Committee. See Miner v, Gilmour (1858) 12 Moo. P.C.C. 131 and Debi Pershad Singh v. Joynath Singh I.L.R. (1897) Cal. 865,. The Subordinate Judge in a careful judgment finds that, when the water in the stream is only knee-deep or below that level, the erection of bunds to raise the level to divert the water into channels is necessary for purposes of irrigation. He finds that the holders of land above and below have been similarly erecting bunds to take water to their lands. Six permanent anicuts above and two below were erected by the Government to divert stream water into irrigation channels. In 1873,1874, 1882 and 1889 the existence of the dam and its prejudicial effects on the cultivation of Government ryotwari lands was brought to the notice of the Government and they recognized the plaintiff's right to take water by the erection of dams (Exhibit 0). It is difficult to believe that, if this had been unusual, it would have received any recognition. There is therefore strong evidence to support the conclusion of the Subordinate Judge that the erection of bunds at certain seasons when the water was only knee-deep is reasonable and in Second Appeal we cannot interfere with that finding.
103. The Subordinate Judge also finds that no material injury has been caused to the defendants by the erection complained of. We therefore uphold the decision of the Subordinate Judge that the plaintiff has the right to erect dams which ho has erected to enjoy his natural rights. No objection has been taken to the dimensions of the dam or to the time of its erection.
104. The Subordinate Judge goes further and finds that even if material injury was caused to the other riparian proprietors they are not entitled to complain as the plaintiff has acquired a right to take water to his tanks by prescription. He ' finds that even if the masonry anicut was put up for the first time only in 1872 or 1873 the plaintiff has been damming up the stream to take water through his channels to his tanks for irrigation by putting up mud or sand dams across the bed of the river long before that time. He finds from the documentary and oral evidence adduced in the case that these channels have been in existence as supply channels for his tanks from before the year 1803. He discredits the defendant's evidence that they were only marukalls or drainage channels. This finding is supported by evidence and we see no reason to interfere with it, and on this finding also the plaintiff is entitled to the declaration that he has obtained.
105. It is contended on behalf of the Government that the plaintiff was not entitled to take water to raise wet crops on lands on which hitherto it was only customary to raise dry crops, on the ground that it must be taken that the plaintiff was only entitled to receive so much of the water of the stream as was conceded to him by the Government when the village was granted to him in inam, and if he takes any more water he is liable to pay any assessment that may be imposed under the Madras Act VII of 1865. The Subordinate Judge disallowed this claim on the ground that the river did not belong to the Government under section I of that Act as he had found that it ran through the plaintiff's village, the banks on either side belonging to him and also on the ground that he is a riparian proprietor. It is however urged by the learned Advocate-General that tinder Act III of 1905 whatever might have/been the law before it must now be taken that the water of the stream belongs to the Government. The provisions of this Act were not considered by the Subordinate Judge as the suit was instituted in 1904 before the Act was passed. In reply to this it is urged before us by the respondent's pleader that, first of all, the Act did not interfere with the rights which existed before and the riparian rights of the plaintiff are preserved and, secondly, that neither the water nor the stream belonged to the Government. It was also/urged that on the facts found in this case there was an engagement between the plaintiff and the Government by which the former was entitled to irrigation free of charge. It is not contended that the plaintiff has taken more water than he has been taking before. It appears that, he has taken water from the river only to fill the tanks as he has been doing hitherto. The carrying capacity of the channels is not said to be greater now than before nor is it said that the tanks have been widened or deepened in order to take in more water than hitherto. The plaintiff is clearly entitled to irrigation of such land as it is in his power to do so with the water which according to the findings, he is entitled to take from the stream. The right that is proved |s the right to take the water until the tanks are filled. It is not shown that he has taken more water than that. We must therefore disallow the contention on this ground; The Second Appeals are dismissed with costs under Section 82, Civil Procedure Code. We allow a period of three months for payment of costs.
Abdur Rahim, J.
106. I agree.