1. The simple question in these appeals is whether the respondents are liable to pay watercess to Government for irrigating lands in excess of the area classed as wet at the Inam settlement with the water of the Etikoppaka channel, similar questions arose in Appasami Aiyar v. The Secretary of State for India in Council (1910) 1 M.W.N. 107 and in Kesri Venkatasubbiah v. Secretary of State for India (1913) 24 M.L.T. 131 the latter decision having been published after the filing of these appeals, if those cases were rightly decided, as I think they were, these appeals must be dismissed.
2. Prior to the present suit, there has been litigation between the parties. In O.S. No. 545 of 1885 on the file of the District Munsif's Court of Ellamanchelli, it was decided that two sluices should be constructed at the entrance of the Koppaka Channel, two feet in height, one being 1-1/2 yards wide for the use of the Koppaka Mokhasadars, and the other, three yards in width, for the use of the Government ryots and the ryots of the Durlapudi proprietor. The right of Koppaka Mokhasadars was thereby recognised by arresting the whole water of the river, giving twothirds of it to Government and taking onethird of it for themselves, and thus their title to one-third of the water of the river was established. But in the settlement statement, Exhibit H, only 10 acres 12 cents of land were registered as wet in this Mokhasa. It is contended on behalf of the Government that the Inam Commissioner only allowed the above said area to be registered as wet land in spite of the Mokhasadar's claim in that settlement to one-third of the water. Exhibit G. is a letter from the Tahsildar of Sarvasiddhi, dated 1-10-1848, recognising the Mokhasadars rights for a flow of water in one turn through the Etikoppaka channel as against two turns through the Pulaparthi channel and this letter is referred to as one of the documents mentioned in Ex. H, as being in the possession of the Mokhasadar. It is, therefore, argued that, though the Mokhasadar's are entitled to take one-third of the water, the Government is nevertheless entitled to impose a cess on the extent irrigated in excess of the registered wet area, as the arrangement come to at the Inam Settlement was a condition precedent.
3. The proviso to Section 1 of Act VII of 1865 declares that, where an inamdar is by virtue of engagements with the Government entitled to irrigation free of separate charge, no ces,s will be imposed under this Act for water supplied to the extent of such right. The question for our decision, therefore, resolves itself into the further question, what is the scope of the judgment in O.S. No. 545 of 1885 which undoubtedly binds the parties. Is the right recognised in that suit limited by the prior settlement which fixed a definite area of land as entitled to water free of charge? and does the decree operate on an ' engagement ' with-in the meaning of the Act?
4. In A. No. 188 of 1911 it was recently held by Wallis C.J. and Sesehagiri Aiyar J. that the Inam Settlement did not override a previous arrangement with the Government by which an inamdar was entitled to water free of separate charge. If the arrangement is one subsequent to the settlement, I shall be inclined to hold that it governed the relations between the parties even more decidedly than an engagement prior to the settlement. In Kesari Venkatasubbiah v. The Secretary of State for India in Council (1913) 14 M.L.T. 131 a decree of Court passed after the Inam settlement was treated as sufficient to establish an engagement of the kind referred to in the proviso to Section 1 of Act VII of 1865.
5. If the Government had a right by virtue of the Inam Settlement to restrict the respondents to the area of the irrigated land allotted to them under the settlement, a demand might have been made, when O.S. No. 545 of 1885 was decided to have inserted in the decree a stipulation that the taking of 1/3 of the whole water of the river should be subject to the payment of assessment on the portion irrigated in excess of the registered area. But not only did Government recognise the Mokhasadras' unrestricted right to 1/3 of the water in this suit but from time to time Government Officials made similar unqualified admissions in Exhs, G.L.M. P and O. I am, therefore, of opinion that the Subordinate Judge was right in his view that the plaintiffs are not liable to pay water-cess so long as they do not take more than their 1/3 share of the water in the stream.
6. The respondents' pleader has attempted to base his claim also on the position that the bed of the stream belongs to the Mokhasadars. It is unnecessary for us to deal with this question as there was no finding in the Lower Court as to the ownership of the entire bed of the stream. The Sub-Judge has found that the river belongs to the Government and is under its control and I find no evidence to lead me to a different conclusion. In O.Section 545 it was only found that the claim itself was situated in that part of the bed of the river which belonged to the Mokhasadars. Such being the findings of fact in the present case a very few words are necessary to distinguish the decisions cited in support of the Respondent's contentions. The Secretary of State v. Janakiramayya I.L.R. (1913) M. 322 and Kandukuri Mahalakshmamma Garu Proprietor of Urlam v. The Secretary of State for India I.L.R. (1910) M. 295 turned on the question whether the ownership of the bed of channels which take off water from the Vamsadhara river claimed by Government to belong to them carried with it a right to use the water of the channel free of charge. The Secretary of State v. Swami Naratheeswarar I.L.R. (1910) M. 21 and Secretary of State for India v. Ambalavana Pandora Sannadhi I.L.R. (1910) M. 366 are cases depending on the question whether the main source of supply was a Government source, a question which it is unnecesssry to consider in detail in the present appeals, as the attention of the parties was not directed to it in the Lower Court. In Kesari Venkatasubbiah v. The Secretary of State for India (1913) 14 M.L.T. 131 Sadasiva Aiyar J. has distinguished the case in The Secretary of State for India v. Swami Naratheeswarar (1910) I.L.R. 31 M. 21 from the facts of the case before him and the same reasons may be used against applying the decision to the facts of the case before us.
7. In A. Nos. 22 and 23, the respondents have filed objection petition in which they seek to have it further declared that they have a right to dispose of their one-third share for any purpose and in any manner they think fit subject to any rights that any other riparian owners, except the Government, may have, in other words, they claim an absolute right over the one-third of the water that they appropriate and keep in their control, to utilise it in any way they may choose; and in support of this they rely on certain expressions in the Judgment of Bramwell B in Nuttall v. Bracewell (1867) L.R. 2 Ex. 1 and on the observations in Holkar v. Porritt (1875) L.R. 10 Ex. 59 where it was stated as regards the diversion of a portion of a certain stream into a separate course. 'The water which come down to him at the farm was his own to use it as he pleased. There was no one entitled to share with him in its use, and no one who could call him to account for any use which he chose to make of it there. In this respect his position was different from that of a riparian owner, who only shares the use of the water in common with other riparian owners.' In Maria Susai Mudaliar v. The Secretary of State for India in Council (1914) 14 M.L.J. 350 there is a similar observation following the remarks of Sir G. Mellish L.J. in Watts v. Kelson (1871) 6 Ch. A. 166 that when the vater arrived in the plaintiff's tanks 'he could do what the liked with it.
8. The question of ownership in running water, never a simple one, is here beset with such uncertainty about the source and course of the stream owing to the want of full evidence on these points that it would be dangerous to make a wide pronouncement about the Mokhasadars' right to exercise absolute ownerships over the water. On the point whether water in a stream can be owned, in Chockalingam Pillai v. Emperor (1912) M.W.N. 119 Sundara Aiyar J. observed, 'In England, water flowing in a river is regarded as not owned by any person, The right of the riparian pro prietor is to use it. He is not the owner of the water which he is entitled to use.' Again in the Secretary of State v. Janahiramayya I.L.R. (1913) M. 322. my learned brother observed that the ownership of water ceased when the water left the land. In the present case, the rights that the respondents claimed in paragraph III of their plaint were rights based on ownership of the bed of the river where the regulating sluices were constructed and the natural rights appertaining to riparian owners. This at least may be said. The respondents have, in addition to their rights as riparian owners, the rights accruing to them by virtue of the decree in O.Section 545 and by certain admissions made by the Government. They have been given such a declaration as they are entitled to by reason of their right to a one-third share of the water: I would not give them any declaration denning more exactly what the rights of riparian owners are than what has been already declared in their favour in this suit.
9. In A. No. 310 there is an objection petition that Rs. 705 collected by the Government as water cess for fasli 1305 and disallowed by the Lower Court as barred by limitation should have been allowed to be recovered. It is conceded that there was an order for attachment and that the suit was brought more than six months after the date of payment. Section 59 of Act II of 1864 prescribes a limitation period of six months for apylying to the Civil Courts for redress to parties aggrieved by proceedings under that Act. As the cause of action is stated in the plaint as being the payment of this sum of money made under protest and under threat of attachment, I think that an application for redress for the plaintiff's grievance should have been made within six months and that the Lower Court, therefore rightly decided that the claim was time barred.
10. These appeals must therefor be dismissed with costs. The objection petitions will also be dismissed with costs.
Sankaran Nair, J.
11. I concur in dismissing the appeals and memo of objections with costs and propose to add a few words on the question of law. Disregarding those instances in which a person could not have got his water but for some work constructed by Government, in all other cases the decisions are uniform that where a right to take water is proved, even though no express agreement on behalf of Government not to levy any charge is proved, an engagement under Act VII of 1865 will be implied and nocess can be levied. Lutchmi Doss v. Secretary of State for India I.L.R. (1909) M. 457 the Chief Justice and Miller, J.: Appasami Aiyar v. The Secretary of State for India in Council (1810) 1. M.W.N. 107 Benson and Krisrnaswami Aiyar, JJ.: Kesari Venkasubbiah v. The Secretary of State for India (1913) 14 M.L.T. 131 Sundara Aiyar and Sadasiva Aiyar JJ. Secretary of State for India v. Ambalavana Pandara Sannadhi I.L.R. (1913) M. 369 Rahim J. and myself, subsequently followed by Miller and Rahim JJ : Secretary of State for India in Council v. Perumal Pillai I.L.R. (1900) M. 279 Ritraj Koer v. Sarfuraz Koer (1906) 15 M.L.J. 351. In the cases of Zamindars and Inamdars some of the decisions put it on the ground that when the Zamindari or Inam was granted, an agreement will be implied against the Government, to allow the natural facilities for rights of irrigation which the landholder then had) Secretary of State for India v. Swami Naratheeswaran I.L.R. (1911) M. 21. Others put it also on the ground that as the owner of the bed of the river, the Zemindar had a right to use the water.
12. There is a conflict of Judicial opinion on the effect of Act III of 1905. I am of opinion that it did not take away any rights which existed at the time the Act was passed and the Government were not by reason of that Act coupled with Act VII of 1865 entitled to impose a cess upon those landholders who were before that Act not liable to pay cess for their using the water. See Kandukuri Mahalakshmamma Garu v. The Secretary of State for India I.L.R. (1911) M. 300 (Urlam Judgment) Benson and Sundara Aiyar, JJ. also before whom this Act was pressed declined to hold the landholder liable. Venkataratnamma v. Secretary of State for India I.L.R. (1913) M. 366. On the other hand Miller and Munro JJ. in the Urlam Judgment approved by the Chief Justice and Ayling J. in Secretary of State for India v. Ambalavana Pandarasanndhi I.L.R. (1911) M. 366 hold that the Act makes the water Government property and entitles the Government to apply Act VII of 1865. In this case it is true the river is found to belong to Government and under its control. The Government may therefore possibly regulate the supply of water without prejudice to the respondents, by constructing sluices etc.
13. But as the right to the supply of water without liability to pay any charge existed already, it is not dependant on the work constructed by Government and no cess under Act VII of 1865 may be levied. The respondent's right to the water has been declared by a judicial decision. No cess is therefore leviable. He cannot get anything more.