1. These appeals have arisen out of two suits filed against the Secretary of State for India in Council for the refund of money collected in the shape of irrigation cess under the provisions of the Madras Irrigation Cess Act. There were five plaintiffs but they all belong to one family and they represent the Inamdar of Rajapudukudi. It will therefore be convenient to speak of 'the plaintiff' in the singular. The plaintiff's inam village Rajapudukudi is irrigated by a tank which receives its supply from a jungle stream called Uppar. There is a supply channel from the Uppar to the tank which for three quarters of its length runs through the Government land and for the other quarter through the inam land; in order to divert the water along the channel a stone anicut has been in existence across the Uppar from time immemorial. In 1888 the Inamdar took the permission of the Government to replace the then existing anicut which is described in the documents as an anicut built of rubble stones by a permanent masonry structure. Permission was given, and the anicut was completed sometime in 1888. In faslis 1332-33 it was reported that the plaintiff had newly brought under wet cultivation about 32 acres of dry land and the Revenue officials imposed a water cess at the rate of one rupee per acre on these 32 acres of punjah. The suits were filed to recover these amounts (approximately Rs. 32 per fasli) and for an injunction against the representatives of the Secretary of State forbidding them to make any such levies in the future.
2. The case on behalf of the Collector was that the Irrigation Cess had been properly levied. He alleged that by the construction of the new anicut in 1888 the supply to the plaintiffs' tank had been increased. His case was that the new wet cultivation was made with the aid of the additional water supplied by means of the improved anicut. He contended also that at the time the anicut was constructed there was not indeed an express agreement, but an implied agreement between the Government and the plaintiff, that if the plaintiff should thereafter bring under wet cultivation any additional extent (over and above the immediately wet anicut under the tank) he would be liable to pay water rate. It was conceded that since the Government did not pay any contribution towards the cost of the anicut, the plaintiff would not be liable to pay the full water rate but a reduced water rate of one rupee per acre.
3. The issues framed by the learned District Munsiff were as follows:
I. Whether the plaintiff has been getting an appreciably larger supply of water for his inam lands from the Uppar river because of the anicut he was allowed to build across the river in the year 1888 and if so whether he cultivated the lands assessed for water rate with such increased supply?
II. Has plaintiff agreed to the levy of water cess now objected to by him and if so was the agreement made under mutual mistake of the parties and without consideration and is it void?
III. Is plaintiff estopped from contending that the levy of the water cess by defendant is illegal?
IV. Is the levy of water cess complained of by the plaintiff legal?
V. Is plaintiff entitled to the injunction asked for?
VI. What relief is plaintiff entitled to if any?
4. On the first issue the learned District Munsiff found that the plaintiff has not been getting an appreciably larger supply of water from his inam lands from Uppar river because of the anicut that he was allowed to build across the river in the year 1888. This finding is confirmed by the learned Subordinate Judge. It can only be attacked in this Court by contending, as the learned Government Pleader has contended, that the onus of proof was wrongly thrown in the Courts below. Quoting the case of The Secretary of State for India in Council v. Sri Mahant Prayag Dossjee Varu : AIR1936Mad794 , the learned Government Pleader argues that the onus should have been thrown upon the plaintiff to show that he was not getting any more water supplied to him than he was entitled to by virtue of the engagement implied in the inam title deed granted to him at the time of the inam settlement in 1867. We do not think that the case of The Secretary of State for India in Council v. Sri Mahant Prayag Dossjee Varu : AIR1936Mad794 has any bearing upon this case. That was a case of irrigation from a tank belonging to the Government and when it was found that the Inamdar who was entitled to irrigate certain inam lands from the tank had greatly increased the area of the lands which he irrigated from the tank, it was held that the burden lay upon him to show that he was irrigating this increased extent of land without using more water. This is an entirely different case from the one with which we now have to deal. Here all the water for irrigation purposes is taken from the tank of the plaintiff. We think that this is a case in which, as was observed in The Secretary of State for India in Council v. Ambalavana Pandara Sannadhi (1917) 33 M.L.J. 15 in the circumstances the burden was on the Government to show that the Inamdar had been storing in his tank more water than he was entitled to under the engagement. In our case there was no allegation on the side of the Government that the level of the anicut constructed across Uppar in 1888 by the plaintiff was any higher than the level of the rubble stone anicut which it replaced. There was also no allegation that the dimensions of the supply channel from the anicut to the tank had been in any way increased. Unless the anicut level were raised or the dimensions of the channel increased, it would be impossible for the change to make any difference in the quantity of water conveyed along the channel to the tank. The only possible improvement in the supply that could be occasioned by such a change would be the prevention of leakage, assuming that the old rubble stone dam was porous; but there is no proof in this case and no statement by anybody that the old rubble stone dam did in fact leak. In these circumstances we think it is clear that the case is governed by the principle of the Urlam case Prasadha Row v. Secretary of State for India (1917) 33 M.L.J. 144 : I.A. 166 : I.L.R. 40 Mad. 886 (P.C.). The anicut and the supply channel having 'remained virtually unaltered the Inamdar is entitled to the water which runs down the channel into his tank and is entitled to use that in any way he pleases. He is not limited to the extent of wet cultivation which he was making at the time of the Inam settlement (1867).
5. The extent of the Inamdar's right under the first proviso to Section 1 of the Madras Irrigation Cess Act is governed by the physical dimensions of the supply channel and not by the actual quantity of water that might pass along the channel. Even if it had been shown that greater supply of water passed along the channel, nevertheless under the proviso the quantity would obviously be variable according to the conditions of the season from year to year.
6. With regard to issue 2, it was found by the learned District Munsiff and confirmed by the learned Subordinate Judge that there was no agreement between the plaintiff and the Government to the levy of water cess now objected to. This also is really a question of fact. The learned Government Pleader referred us to the correspondence which passed between the plaintiff and the Government in 1888 and subsequently and has asked us to say that it does imply an agreement. But we think it is equally possible to explain this correspondence on the assumption that both the Government and the plaintiff were under a misapprehension regarding the extent of the plaintiff's rights. It is quite clear from the correspondence that the Government thought they would be entitled to levy water rate for any increased area brought under wet cultivation after the improvement of the anicut. It is also quite clear that the plaintiff acquiesced in that view and thought that he would be liable to pay water rate for any such increased area. But this is not the same thing as saying that both the plaintiff and the Government agreed to the payment and the imposition of water cess. The learned Government Pleader was able to show that in 1891 the plaintiff paid an amount of one rupee per acre by way of water rate without protest and without taking any steps for its recovery. This however, as both the lower Courts have held, cannot estop the plaintiff from denying his liability. We may quote here the judgment of the Privy Council in The Secretary of State for India in Council v. Subramania Aiyar (1933) 64 M.L.J. 715 (P.C.). Dealing with a somewhat similar case, their Lordships made the following observations:
The action was brought, as has been said, by the trustee of the temple for a declaration that the temple was not bound to pay cess. They had been paying cess for some ten or fifteen years, but they said they had paid it under a mistake as to their rights and they claimed repayment of the amount that they had paid. It is obvious that the amount which they were entitled to claim would be affected by the Limitation Act but as to that no question arises in this particular suit, the question being whether they ought to have paid it at all.
4. We think the case is really concluded by the findings of fact of both the lower Courts, namely, that the plaintiff was not getting an appreciably larger supply after the construction of the anicut in 1888 and that there was no agreement by the plaintiff to pay water cess to which he now objects. The appeals must therefore fail and are dismissed with costs.