1. The plaintiff the proprietrix of the permanently settled estate of Vegayammapet instituted the suit against the Secretary of State for India in Council for a declaration that a certain definite extent in each of a number of her villages is not liable to the payment of water-cess under Act VII of 1865 to Government and to recover the amount paid by her under protest on account of water tax for the Fasli year 1314. The defendant denied the right to the exemption claimed. The suit was dismissed by the Subordinate Judge of Cocanada and the plaintiff has preferred this appeal. The plaintiff alleged in her plaint that prior to the introduction of the anicut system of irrigation by Government the villages mentioned in the plaint were cultivated with wet crops by means of old and in-dependent sources of irrigation, that these were interrupted and rendered unfit for irrigation by the construction of river embankments and other works connected with the anicut system by Government and that Government is therefore bound to compensate the proprietrix for the loss caused by the destruction of the old sources of irrigation. The plaint further states that in 1880 Mr. Johnson the then Sub-Collector settled the extents of the lands in the villages in question which were deprived of the old sources of irrigation and that his settlement amounts to an engagement on the part of Government not to collect water-tax for those extents. The plaintiff claims exemption also for a certain extent of land in the village of Nedasanametta which was not allowed by Mr. Johnson, The plaint then impeaches as invalid and unjust subsequent proceedings of the defendant deciding that she was not entitled to the exemption allowed by Mr. Johnson but only to less extents in some of the plaint villages and none at all in the others. The defendant put the plaintiff to the proof of any engagement under which the plaintiff is entitled to any exemption from water-cess and denied the engagement said to be constituted by Mr. John-son's settlement.
2. The Subordinate Judge while setting out in detail the history of the disputes relating to water-cess in the villages has finally based his judgment on the ground that the Government has the right to frame rules under Section 1 of Act VII of 1865 for levying water-cess, that the Court has no power to question those rules and that the determination of the extents of land in each villiage which were entitled to exemption in accordance with the orders of Government passed in 1901 could not be questioned by the plaintiff in a Civil Court. The question whe-ther the plaintiff is entitled to any exemption from water-cess depends on whether there was any engagement between her and the Government entitling her to it. The only engagement which the plaintiff could claim in this case must be by virtue of paying wet assessment on any particular land. The assessment on the plaintiff's estate was fixed at the Permanent Settlement which settled the peishcush payable by her estate. If the proprietors of the estate cultivated subsequent to the settlement a larger ex-tent than was classified as wet and assessed with wet revenue they could not thereby plead any engagement with Government which would exempt them from payment of water-tax on what was not assessed as wet land at the settlement. It was not alleged in this case that the water available for irrigation prior to the anicut system belonged to the Zamindar. If such was the case no engagement with the Government would be necessary to entitle the plaintiff to exemption and Mr. Johnson's settlement would have no bearing except on the question of an engagement exempting plaintiff from payment of cess for water belonging to Government. At the same time the mere omission of the plaintiff to cultivate with wet crops any land on which wet assessment was levied at the settlement would not deprive her of the right to exemption from cess for land on which wet assessment was levied. The real question therefore for decision in the case is what extent in each of the villages in question was assessed with wet revenue at the Perma-nent Settlement. The onus of proving this would of course lie on the plaintiff. Documents showing the extents cultivated with wet crops in subsequent years may be relevant evidence on the question of the extent under wet cultivation at the time of the settlement.
3. But the direct question for decision is not what extent was cultivated by the proprietor with wet crops immediately before the introduction of the anicut system. The Subordinate Judge says in paragraph 10 of his judgment that it was not the plaintiff's case in the present suit that the Permanent Settlement should be treated as an engagement of the kind contemplated by Act VII of 1865. But there can be no doubt that the Permanent Settlement must be treated as an engagement of this kind. The Subordinate Judge has not recorded a finding on the question of the extent on which wet assessment was levied in each of the villages in question at the Permanent Settlement. We shall request him to do so now. But as the plaintiff did not in her plaint set up distinctly that the Permanent Settlement would be an engagement in her favour to the extent of the wet cultivation then existing she must amend her plaint by making a definite allegation stating what extent she claims as having been wet land at the time of the Permanent Settlement Mr. Nagabushanam says that apart from the Permanent Settlement the settlement of Mr. Johnson which was ratified by Government would also amount to an engagement exempting his client from liability for watercess to the extent allowed by Mr. Johnson. We reserve liberty to him to make out this contention if he can alter the return of the finding. We may observe that we cannot support the Subordinate Judge's view that any orders or rules framed by Government as to the mode in which the extent of mamool wet should be settled would be binding on the plaintiff. Government's right under Section 1 of Act VII of 1865 to make rules having the force of law is only with respect to the rates at which water-cess should be levied and the manner in which it should be collected. It does not extend to the decision of the question whether there is an engagement exempting any landholder from liability for the tax. That is a question which a Civil Court has certainly jurisdiction to decide.
4. We therefore direct the plaintiff to amend her plaint in the manner stated above within two weeks after the re-opening of the Court after the recess.
5. The defendant may put in any additional written statement. if so advised. The Subordinate Judge will admit any evidence that the parties may adduce on the question of the extent of wet land in each of the plaint villages at the time of the Permanent Settlement and submit his finding within three months after the re-opening of the Court after the recess. Objections to be filed within 10 days.
6. In compliance with the order contained in the above Judgment the Subordinate Judge of Cocanada having submitted findings [which are summarised in the judgment].