1. The appellant is a registered pattadar of some lands. She brought a suit against the 1st defendant, the Secretary of State for India in Council, for the recovery of a sum of money collected from her as penal assessment for unauthorised irrigation of her fields with water from a government channel. The District Munsif gave a decree in her favour; but the Subordinate Judge dismissed her suit on the ground that the water which flowed through a breach aided in the cultivation of her lands. The facts found are that there was a breach in the channel which supplies water to the appellant's fields. That was closed and, a few days after its closure, it was again breached owing, it is alleged, to cattle passing and repassing on the portion of the bund newly put up and the water that flowed through the breach passed on to the appellant's fields. The Subordinate Judge holds the appellant liable to the levy of penal water-cess as her lands were benefited by the water which flowed through the breach. His finding on this point is in the following terms:
it cannot be said that the cultivation of the-lands in question was not aided by the Government water which flowed through the breach for three or four days into them and that ploughing was not facilitated by the said water. Hence, 1 am of opinion that the water which flowed through the breach into the lauds in possession of defendants 2 and 3 aided in the cultivation of the said lands.
The question is whether on this finding a ryotwari tenant in possession of what is known as mamool wet is liable to pay penal assessment in respect of water which flowed into his land without his doing anything to let the water into it. The channel in which the breach occurred is admittedly the channel which supplies water to the appellant's fields for irrigation. The contention of the 1st defendant is that the pipe through which water flows from the channel into the appellant's fields was closed for a time by the revenue authorities and therefore the appellant was not entitled to get water during that time from the channel and the use of the water flowing through a breach was not water to which the appellant was entitled and therefore the Revenue authorities are entitled to levy penal assesment. Does the case of the appellant come within the proviso to Section 1 of the Irrigation Cess Act, VII of 1865. The proviso is in the following terms:
Provided also that no cess shall be leviable under this act in respect of land under ryotwari settlement which is classified and assessed as wet unless the same be irrigated by using without due authority water from any source herein before mentioned and such a source is different from or in addition to that which has been assigned by the revenue authorities or adjudged by a competent Civil Court as a source of irrigation.
Under this proviso, in order to make a ryotwari tenant in possession of land classified and assessed as wet liable, he should irrigate without authority water from any source mentioned in the preceding clause of Section 1, that such a source should be different from or in addition to that which has been assigned by the Revenue authorities or adjudged by a competent Civil Court as a source of irrigation to such a land. If water flows from the source which is the source of water for the irrigation of his land he cannot be held liable to pay penal water rate. If he takes water or uses water from a source which is not assigned by the revenue authorities or adjudged by a competent Civil Court as a source of irrigation to his land then he may be liable for penal assessment. But where he uses water from a source which is the legitimate source of irrigation for his land then he would not be liable for penal assessment unless he takes water at the time when he is not permitted to take water or when he is not entitled to take the same. When water flows from the legitimate source of irrigation without any act or illegal omission on his part, can he be liable?. In this case the water flowing from the breach flowed over the fields situated between the breach and his lands and, after flooding them, the water seems to have over-flowed the ridges of his neighbour's lands or percolated through them. The water flowed through the breach only for 3 or 4 days. Whether he had any benefit from the flow of such water or whether the water caused any damage to him by preventing the field from drying up during the period during which it should be allowed to dry up is not a necessary question for considering whether the appellant is liable to penal assessment or not. Where water standing in a neighbour's field overflows the ridges of that field and flows into another man's land, the latter cannot be held liable for penal assessment, for, he could not have prevented the overflood. No doubt, if he actively aided or did something to let water into his field at a time when he is not entitled to that water, he may be said with some show of reason that he has taken unauthorisedly. But in this case it is quite clear that the water which flowed through the breach first filled the neighbouring fields and then entered the appellant's fields.
2. The learned Government pleader has admitted that water of the channel flows through a pipe inserted in the bund to the fields belonging to the appellant and his neighbours. It follows that the channel is the legitimate source of irrigation to the appellant's fields. It appears that water flowing through a breach not caused by him or at his instance filled his neighbour's fields. On these facts, it is not possible to hold that the appellant is liable to pay penal assessment. The proviso clearly says that no cess shall be leviable in respect of mamool wet unless the land is irrigated without due authority from a source different from that to which he is entitled. A person cannot be said to irrigate his fields, if water collected in his neighbour's fields over-flowed the ridges and then filled his lands. There may be cases where water flowing in such manner might flow for a long time and thereby enable one to cultivate his field at a time when he is not entitled to water, but, the flow of water for a short time, say for a day or two, through a breach or sluice, which is closed, but, which gives way owing to natural causes, cannot make a ryotwari tenant in possession of land classified and assessed as wet liable to pay penal assessment. The learned Government pleader relies upon Secretary of State for India v. Swami Naratheswarar : (1910)20MLJ766 for his contention that if water flows into a man's fields even without his volition or anything being done on his part to get water he is liable to pay water cess to Government. The facts of that case are distinguishable from those of the present. That was a case of inam lands. The inamdar was not entitled to the use of water. He did make use of the water which flowed into his lands and raised crops, it was held that he was liable to pay water cess. If a person who is not entitled to water from a Government source gets water owing to a breach or owing to the overflowing the water bunds and raises crops with the help of such water, or uses the water which comes into his lands to which he is not entitled and raises crops, then, he would no doubt be liable to pay water rate to Government. But the case of a ryotwari tenant in possession of lands classified and assessed as wet is different. The case in Krishna Row v. The Collector of Kistna : (1914)26MLJ210 is also distinguishable from the present. In that case the plaintiffs irrigated from two pipes instead of one which was the authorised source of irrigation. Though there was nothing to show that the second pipe was inserted at their instance it was held that they were liable to pay water rate. There the finding was that the water from the 2nd pipe to which they were not entitled was used for irrigation and they were not entitled to the use of water from the 2nd pipe. It is upon that finding that a bench of this Court held that they were liable to pay water rate. The expression 'unless the same be irrigated by using water' must be given its proper meaning. A person cannot be said to irrigate his land if for a few hours water overflows his neighbour's fields and then falls into his lands. Supposing the revenue authorities closed a certain sluice which is the source of irrigation to a man's land, owing to natural causes the sluice gave way and for a day or two water flowed into his land without any act on his part, he cannot be said to irrigate his lands by using water without due authority. In order to bring the ryotwari tenant in possession of lands classified and assessed as wet within the meaning of the section, he must do something in order to let water into his lands or must raise or attempt to raise a crop with the help of the water from a source to which he is is not entitled or at a time when he is not entitled to get water from his legitimate source. What seems to have happened in this case is that the revenue authorities, not being able to fix the blame upon anyone in particular with regard to the causing of a breach in the channel, thought it best to assess everyone into whose fields the water from the breach flowed. On the facts of this case 1 have no hesitation in holding that the 1st respondent is not entitled to levy penal water rate from the appellant. 1 therefore set aside the decree of the Subordinate Judge and restore that of the District Munsif, with costs here and in the Court below, to be paid by the 1st defendant.