Abdur Rahim, J.
1. The respondents (plaintiffs) are the proprietors of Kunnakudi Mitta. The southern boundary of it is a small river called Harihara Nadhi. A channel called Kunnakudi Kal takes off from a point in the river, goes a little distance towards the north and then to the east (or rather south-east), feeds a tank called Kunnakudi Periakulam which discharges its water at the other end through a weir; from here the channel continues and feeds a smaller tank called Kunnakudi Periakulam; and thereafter it goes on till it discharges itself in Sivalaperikulam. The villages on the north and north-east of the channel are ryotwari villages held of the Government and named Kuthukkalvalasai and Tenkasi. Sivalaperikulam derives its name from the village of Sivalaperi, also a ryotwari village in Tenkasi Taluk. At the source of the channel, a short distance from the river, there is a head sluice situate in the mitta. Further on also within the boundaries of the mitta is one of the points in dispute, what is called outlet No. 2, This outlet or calingula is on the southern bank of the channel; it has a vent in the middle, a masonry wall on each side, with wing walls in the eastern and western bunds. The head of the vent before the interference of the revenue authorities was half a foot lower than that of the channel. There was opening between the stones in the vent to admit of wooden planks being inserted and these used to be put in when it was found necessary, in order to carry water into the tank; in times of flood the planks would be removed so that water might flow down to the river to the south.
2. The mittadars claim that they are entitled to the whole of the water which comes into the channel and through the channel into the two tanks mentioned above within the Kunnakudi Mitta; and if any surplus water is left after irrigating all the lands that they want to cultivate, that is drained off into the Sivalaperi tank. On behalf of the appellant, the Secretary of State for India in Council, it is stated that the channel is a common source of supply treated for the benefit of the plaintiffs' mitta tank, i. e., Periakulam tank and the Ayan Sivalaperi tank. He does not recognise Pettaikulam as a tank in which plaintiffs are entitled to store water and says that the Sivalaperi tank is entitled at all times to two-fifths of the water in the channel which the ryo's have a right to take in seasons of good supply through the open vents in the surplus weir of the Periakulam tank; and in times of low supply through a madai or sluice called Pulavadaimadai at the western end of the Periakulam tank. In the alternative, he says that the Sivalaperi tank is entitled to all the water of the surplus weir of Periakulam as the weir stood in 1859.
3. The defendant also alleges that until 1892 the waterspread of the Periakulam tank was 750 acres of mitts, land and 10-39 acres of Government poramboke land on the north, that since that date the mittadars by inserting permanent wooden shutters in the vents of the weir, which till then used to remain open, increased the full tank level and caused permanent submersion of 13 acres of Government wet land on the foreshore of this tank. He contends that this act of the mittadar is unlawful and that the F. T. L. (Full Tank Level) of Periakulam should be reduced by one foot. The defendant then states that the Kunnakudi channel was in a dangerous condition and needed repairs and for his purpose he found it necessary, as guardian of public interests, to convert outlet No. 2 into a calingula, sent notice and estimates to the mittadars calling upon them to pay their contribution, and that as they would not agree he began doing the works himself. The calingula is constructed with dam stones with their top as their full sluice level and so made as to work automatically without endangering the channel bank or diminishing the supply in the channel or the tank. As for Pettaikulam the case of the defendant is that it is only a portion of the channel below the surplus weir of Periakulam and that it was converted by the mittadars into a supplemental tank in 1871 by constructing a masonry dam across the channel. He wants that the dam should be removed. The defendant claims that the Government, as such, has a right to do all the necessary repairs in the channel partly from contributions from public funds and partly from contributions made by the mittadar and the Ayan ryots. It is denied that the plaintiffs have any right to execute repairs to any of the works in the channel or tank without the defendants' permission.
4. The Kunnakudi channel is an ancient channel. It does not appear when it was dug and at whose cost. It lies almost entirely within the Kunnakudi Mitta and there cannot be the slightest doubt that whoever dug it, it was intended mainly for irrigating the lands of that mitta. The mitta is a portion of the old Chockkampatti Zemindari. The Zemindari was sold for arrears of peishcush or revenue payable to Government in 1835---1836. It was under the management of the Government till 1859 when it was granted to the successor of the original Zemindar and afterwards again sold and divided into parcels. One of these parcels is the Kunnakudi Mitta.
5. During the period that the Zemindari was under the management of the Government they executed repairs and improvements in the channel and it was after such improvements had been effected that the grant of 1859 was made to the predecessor-in title of the mittadar. On the other hand by the muchilika executed at the time, the then Zemindar undertook to keep tanks and channels in repair according to the ancient custom of the Zemindari, and there was no limitation imposed on the right of the Zemindar to use the water of the channel and the tank for purposes of irrigating the Zemindari land. The question of the respective rights of the mittadars and the Government with respect to the user of the water of the channel was raised between them in Original Suit No. 69 of 1894 on the file of the Court of the Subordinate Judge of Tinnevelly (Original Suit No. 26 of 1896 on the file of the Court of the Temporary Subordinate Judge of Tinnevelly), the Government alleging that the water stored in the mittadars tank belonged to them, as it was obtained from an artificial channel maintained by the Government and situated in Government land; and they claimed the right to levy water cess (fasli jasthi) in respect of the second crop raised by the mittadars by irrigating the Hand with the channel water. The claim of the Government was disallowed by all the Courts, the Court of trial, the District Judge in appeal and by the High Court in second appeal Secretary of State v. Perumal Pillai 24 M 279 : 11 M. L. J. 117. It was found that the whole of the water in the tank supplied by the channel belonged to the grantee (i. e., the mittadar) and not to the Government, and that the Government was not entitled to increase the peishcush on the ground that the mittadars had increased wet cultivation and made other improvements in the lands of the Zemindari. But at the end of the judgment of the High Court, it was observed that their finding and decision 'should not be understood as determining any question between the grantee and those who may be entitled to the surplus water of the tank according to established usage.' It is this reservation that is relied upon by the defendant in support of his present claim put forward on behalf of the Sivalaperi and Kuthukkalvalasai ryots. But instead of instituting a proper suit to obtain determination of the right to the surplus water of the Periakulam tank which the ryots in the Ayan villages in question may have according to established usage,' the Government took upon itself the responsibility of forcibly entering upon the mittadars' land and asserting the right claimed by them to regulate the distribution of water to the mittadars and to the ryots of the Government villages. Mr. J. L. Rosario, appearing on behalf of the mittadars, has strongly protested against this action of the revenue officers. On the other hand, the learned Government Pleader urges that it is the paramount right and also duty of the Government in this Presidency to distribute and control the distribution of water for purposes of irrigation and that the revenue officers acting on behalf of the Government were, therefore, justified in going upon the mittadars' land without their permission and in spite of their protests. He relies upon the ruling in Robert Fischer v. Secretary of State 2 Ind. Cas. 325 : 32 M. 141 : 5 M. L. T. 149 : 19 M. L. J. 131. That case instead of helping him contains an observation which is opposed to his contention. It is stated, 'it could not, of course, be suggested that, for the purpose of exercising their right of control, Government would he warranted in committing an act of trespass,' and no other authority is cited in support of such a prima facie untenable proposition, that the Revenue Officers as agents of the Government are entitled to go upon people's land in this Presidency against their wishes for the exercise of any right that the Government may possess to regulate the distribution of water of rivers and channels. Such a right, however, in my opinion, can only be exercised without violating the proprietary rights of others and by the use of lawful means and there can be no doubt, therefore, that the defendant was rightly restrained by injunction from going upon the plaintiffs' land against their wishes to regulate the distribution of water to the channel and the tank.
6. Mr. Rosario then contended that we should not go any further and declare the rights of the parties in the water of the channel and says that this should be done only when the ryots concerned institute a proper suit for the purpose. But having regard to the fact that so much evidence has been taken on the various issues raised in connection with the question and that the dispute has been going on for a very long time, it is not desirable that the matter should be left again in an unsettled condition, in so far as it can be determined now.
7. The first question is, what are the respective rights of the mittadars and the Sivalaperi ryots.
8. The history of the disputes relating to this channel goes back upon the record to 1820. It appears from Exhibit XVII (a) of 1822 that the right of the ryots of Sivalaperi to irrigate the lands under the Sivalaperi tank with water drawn from the Kunnakudi channel according to mamool or usage was recognised by the then Zemindar. As regards the exact extent of that right, it was claimed on behalf of the Sivalaperi royts that they were entitled to two-fifths of the water in the channel (the Zemindar being entitled to three-fifths) in times of scarcity through a sluice in the channel called Pulavadimadai at the western end of the Periakulam tank, and in times of full supply over the weir at the eastern end of the tank. It is also evident from Exhibit XVII (b) that even in 1882 there was obstruction on the part of the Zemindar to the exercise of this alleged right by the Sivalaperi royts. In so far as can be gathered from the documentary evidence in the case which is the-most reliable evidence available the claim of the Sivalaperi ryots to take water through Pulavadimadai was never recognised by the Zemindar or successfully established against him. It is not even shown that there is any defined channel by which water is taken to Sivalaperi lands through the Pulavadimadai. It is, however, clearly established that the Sivalaperi tank has been deriving its supply from the water that flows over the surplus weir of the Periakulam tank at the eastern end. This is proved by documentary evidence going as far back as 1820. In fact it is the main if not the sole, source of supply for the Sevalaperi tank; and this has been recognized by the proprietor of Kunnakudi Mitta from time to time. The mittadar, his agents and lessees have in fact asked for and obtained contribution from the Sivalaperi ryots towards the repairs executed to the channel, and when the repairs were done by the Government the mittadar paid what was accepted by him as his proper share, the rest being borne by Government and the Sivalaperi ryots. The proportions in which the expenses were met have sometimes amounted to nearly three-fifths by the mittadar and two-fifths by the Government and it's ryots at Sivalaperi. These facts are borne out by documents dating from 1870, viz., Exhibits V, IXb, IXa IXj, IXm, XVI series, etc. This evidence would, therefore, seem to indicate to some extent that the division of water in the channel between the mittadars and the Ayan ryots used to be made in the proportion of three-fifths and two-fifths. In the absence, however, of more definite evidence on this point and in view of the fact that the right of defendant to take water through Pulavadimadai in times of scarcity is not established, I am not prepared to hold that the Sivalaperi ryots are entitled to two-fifths of the entire water in the channel and the plaintiffs to three-fifths. The division of the expenses of repairs in such proportion only indicates in a rough way the amount of the benefit which the parties respectively derived from the channel. It would appear that the supply of water in the channel, if it is not allowed to ran waste through want of repairs in the channel or otherwise, is ordinarily abundant and it seldom happened that it was not found to be sufficient for the needs both of the mittadars and the defendant. It should also be borne in mind in this connection that the plaintiffs are entitled to irrigate the lands as they always have been doing through sluices in the channel as well as in the tanks, and it cannot be said that the plaintiffs' rights of irrigation are confined to any particular acreage or to a single crop.
9. The next important question for decision is whether the plaintiffs are entitled to store water in the Pettaikulam tank and if so, what are the extent and limits of that right. The case of the defendant is that the Pettaikulam is a new tank altogether and so is the dam at its eastern, end, and it is claimed on his behalf that the Pettaikulam should be filled up in so far as it exceeds the width of the channel as it goes down from the Periakulam weir. The evidence as to the Pettaikulam tank is somewhat obscure. But evidently there is allusion to a dry pottai tank in a report by the Revenue Officer made in 1822 (Exhibit XVII). Exhibit P, which is the delivery warrant issued to a purchaser of Kunnakudi village in a civil suit of 1866, makes distinct mention of Kunnakudi Pettaikulam from which the marugal channel is stated to be running to Sivalaperi tank. It is possible that it is nothing but a natural depression as stated in Mr. Brandt's Memorandum of 1873 (Exhibit VI). It is not suggested that it was dug by any one and the appearance of it as described by Mr. Brandt rather tends to negative the supposition that it is an artificial tank. If that is so, there can be little doubt that it was originally a part of the channel itself. It lies entirely within the limits of the mitta and the mittadar is in my opinion entitled to all the water that is stored there, and the surplus that flows over into the channel continued at the eastern end is what the ryots of Sivalapari are entitled to. The first dispute that arose over the Pettaikulam was in 1870 or thereabouts and related to a sluice on the south and to a dam across the channel at the eastern end of this tank. It was distinctly asserted at the time in the memorandum of appeal filed on behalf of the mittadar to the Collector that at first the madai or sluice in the Pettaikulam was made of palmyra trunks and that subsequently it was replaced by an earthernware sluice or nazhimadui. It was also stated that the old madai had got blocked for a time and that by changing its material, no harm was caused to the Sivalaperi ryots and that in fact it prevented waste of water. The Collector Mr. Puckle held reversing the order of the Sub-Collector, that the Zamindar had an undoubted right to use whatever water was stored in his tank to the best advantage and the Sivalaperi ryots, whose tank (i.e., the Sivalaperi tank) was only entitled to the surplus drainage, had no cause to complain as long as the surplus channel was left open. It appears, however, from a Memorandum of Mr. Brandt (Exhibit VI) and from Exhibit VIII, which is a letter from Mr. Puckle, who had heard the appeal of the mittadar, to the District Engineer, that the new dam that had been put up at the Pettaikulam tank was regard, ed as objectionable by the revenue authorities. Orders ware pissed in 1874 requiring the then mittadar to remove the dam but he apparently did not feel himself bound to comply with the requisition.
10. There can be no daub1 : that the mittadar. is entitled to take water through the sluice on the south of Pettaikulam. The point for decision is whether he is entitled to retain the dam. It is alleged that by this dim, obstruction is caused to the flow of water into the channel leading to the Sivalaperi tank according to usage, an I in fait the claim of the defandant goes further for he wants that the Pattaikulam tank should be removed or filial up. The evidence on behalf of the plaintiff is that by the masonry dam which they have put up no alteration is effected in the supply of water to the Sivalapari tank. In my opinion, the plaintiffs are entitled to put up a proper weir at the eastern end of Pettaikulam, provided they do not thereby cause any detriment to the supply of water to Sivalaperi, which the ryots have been accustomed to get before the Construction of the new dam. It would appear from Exhibit VII, a report made in 1874 by the Government Tahsildar to the Collector, that the masonry weir at Pettaikulam was constructed under the orders of the Range Officer and that it was sanctioned by the Collector himself. The evidence is not clear upon the materials available as to how and to what extent, if any damage has been caused to the Sivalaperi ryots by this construction. I think it must ha left to the Ayan ryots themselves to seek their proper remedy by a separate proceeding, if in fact they have suffered any injury. That the defendant is not entitled to have the Pettaikulam tank itself removed, is to my mind abundantly clear.
11. Then with reference to the Periakulam tank, the question that we have to decide is, what is the extent of water which the plaintiffs are entitled to store in it, or in other words, what is the proper ayakat of this tank. The evidence furnished by the Settlement Register shows that part of the Survey No. 262 amounting to 10 acres, 9 cents of Government ryotwari land in Kuthukkalvalasai is a portion of the water-spread of Periakulam. This is also borne out by other documentary evidence. The same is the effect of the evidence of the plaintiffs' 14th witness, Mr. Vaikuntam Ayyar, an Executive Engineer, who prepared a map showing the waterspread of this tank at different levels. There can be little doubt that the proper waterspread of this tank is represented by what is called the 3rd contour which corresponds to the sill level of the vents in the calingula. Taking the crest of the surplus weir at 100, the 3rd contour, represents 97.34. The plaintiffs are not entitled to raise the full tank level above this point, whether by the use of wooden shutters or otherwise; for the result of increasing it would be that more ryotwari land on the north would be submerged than is justified and there would be less water to flow over the surplus weir into the channel leading from Pettaikulam to the Sivalaperi tank.
12. The next point for consideration refers to outlet No. 2, the construction made by the defendant in the channel not far from the head sluice. The evidence of Mr. Vaikuntam Ayyar, which I find no reason for discrediting, shows that by raising the sill level by 1 foot, damage is likely to be caused to the channel. It would seem that the natural result would be that the silt that comes into the channel with the drainage from the north, would not be discharged to the same extent as before into the Harihara Nadhi, but would accumulate into the channel itself and gradually get carried into the Periakulam tank. As regards the rest of the construction, I do not think it can be said that any harm will be caused to the channel or to the interests of the mittadars.
13. It should, therefore, be declared (a) that the channel, so far as it lies within the biundaries of the mitta, belongs to the plaintiffs. (b) That the defendant's officers are not entitled to enter upon the mitta land in order to execute any work in connection with the channel with a view to regulate the distribution of water to the Periakulam and Sivalaperi tanks or for any other purpose, if such entry and execution of works is objected to, by the mittadars. (c) The plaintiffs are entitled to store water in the Periakulam tank to the level indicated by contour No. 3 delineated on the plan prepared by the 14th witness for the plaintiffs marked as Exhibit E and they will be restrained from increasing that level. (d) The plaintiffs are also entitled to the water that comes into the Pettaikulam tank but are not entitled to store more water than what used to be contained in it before the date of construction of the new masonry dam, i.e., before 1871 : if this new dam has caused any injury to the ryots of Sivalaperi, they will be at liberty to pursue such remedy as they may have by a proper suit. (e) The plaintiffs are entitled also to take water through the sluices already existing in the channel and in the Periakulam and Pettaikulam tanks. (f) The plaintiffs must keep the channel and the works in connection therewith in proper repair and efficient condition the costs thereof to be borne by them and the Government in the proportions of three-fifths and two-fifths. (g) The plaintiffs must not obstruct the flow of surplus water over the weir at Periakulam at the level indicated by contour No. 3, and the overflow of water from the Pettaikulam tank as it existed before 1871.
14. The defendant will bear the costs of this appeal. Time for payment will be three months.
Srinivasa Aiyangar, J.
15. This appeal arises out of a suit brought by the proprietors of the Kunnakudi mitta against the Government for certain declarations in respect of an irrigation system, the Kunnakudi channel and its connected tanks, and for an injunction restraining the Government from in any way interfering with it.
16. The Kunnakudi channel which takes off from the Harihara river, a natural stream, first empties itself into the Kunnakudi Periakulam (big tank) at its western end and after filling it flows out through a weir at the lower and eastern end of the tank, fills a small tank called Pettaikulam lower down, flows out over a dam placed in the channel contiguous to the eastern bund of that tank and finally flows into the Sivalaperi tank which belongs to the Government. There is a dam in the river to lead the water into the channel, a head sluice which was constructed in the channel about a furlong off from the off-take to regulate the flow and an outlet No. 2 called Chakkilichimadai still lower down in the channel to discharge the excess water in times of flood. The channel has been in existence from time immemorial and was evidently formed for the irrigation of the mitta Kunnakudi lands and certain lands under the Sivalaperi tank in Teakasi, a Government village. Kunnakudi Mitta formed part of the ancient Zemindari of Chokkampatti which was purchased by Government in 1835 for arrears of revenue, remained in amani management till 1859 when it was re-granted to a representative of the original family, for whose debts it was sub-divided and sold in 1861 in Court auction. There have been constant disputes between the proprietors of Kunnakudi and the ryotwari owners of the lands under Sivalaperi from about the year 1820 as to the rights of irrigation through the Kunnakudi channel, which have not yet been settled by any final adjudication by a Civil Court.
17. The main points of difference are the following:
(i) as to the right to the water in the channel in times of scarcity,
(ii) as to the full tank level of the Periakulam, i.e., the height to which the proprietor of Kunnakudi is entitled to impound and store the water lowing in the channel,
(iii) as to his right to store water in the Pettaikulam.
18. There is a certain amount of irrigation through sluices in the channel, of which the most important for the present purpose is through a sluice known as Pulavadimadai at the western end of the tank at the place where the channel enters the tank. Through this sluice water in times of scarcity flows out of the main channel into a small channel along the southern bund of the tank (purakal) and irrigates the lands of the proprietor. The ryotwari owner under Sivalaperi claims a right to lead water into his tank through this channel and says that he is entitled to two-fifths of the water flowing in the main channel and only the remaining three-fifths belongs to the mittadar. There are some general assertions of this right and it also appears that the cost of the repairs and other works executed in the main channel has been divided in the proportion of three-fifths to the proprietor and two-fifths to the Government and their ryotwari pattadars; but there is no reliable evidence except vague oral evidence that the Sivalaperi tank ever had a supply through the purakal or side channel. It is remarkable that in 1820 the request made by the ryotwari owner under the Sivalaperi tank to the Zemindar was to take water through Pallathumarugal, i.e., the surplus weirs at the lower end of the tank (Exhibit XVIIc). Though orders appear to have been passed in 1822 and in 1835 that the Sivalaperi tank should get two-fifths of the water through the Pulavadimadai in seasons of scarcity and through Pallathumarugal in ordinary seasons, so early as 1873 it was stated that Sivalaperi was getting water only through the surplus weir (Exhibit VI). The claim was revived in 1874 and supported by the Tahsildar again in 1893 and supported by the Revenue Inspector, but nothing came of it. In these circumstances without much better evidence than we have in this case, it is not possible to come to any other conclusion than what the lower Court arrived at on this point.
19. The next question is as to the right of the mittadars to appropriate the water in the channel. According to them they are entitled to use and impound as much of the water of the channel as they like and let oat the surplus on to the lower owner who can make such use of it as he wants when he gets it, but that the lower owner is not entitled as of right to any flow in the channel; in effect the plaintiffs claim a right of drainage without being under any obligation to let the water flow on in the channel to the Sivalaperi tank. This obviously is not their right. In these systems of connected tanks supplied with water by or through a permanent artificial channel, each upper owner in the flood season is entitled to fill his tank, which in general is of sufficient storage capacity for the ayakat and subject to this, is bound to allow the water to flow freely on to the lower tank till the last of them is supplied. In a considerable number of oases, before the introduction of modern engineering appliances, this was managed by having an automatic escape at the lower end of the tank, especially if the soil was hard or rocky, approximately at a level with the full tank level of the tank. These escapes were called thambogis. But whatever may be the means adopted to let out the surplus, the owner of a tank in such cases has no right to increase the storage capacity of his tank beyond what it was at the time when the channel was dug, which in many instances can only be proved by the customary flow of water into the tank. In this case there is some evidence that the escape Pallathumarugal, which, there is no reason to doubt, always existed in the lower end of the tank at the place where the weir now is, was not paved with stones till about the year 1888, when probably the mittadar began 2nd crop cultivation systematically (see Exhibits X and XIV), that the level was below the full tank level probably in consequence of scouring, and that it was usual to block it with turf which was opened to let out the water into the channel lower down, when water was low (Exhibit XVII series). There is also some evidence that the mittadar introduced two vents in the weir and put up plank shutters in 1892 or thereabouts and raised the bunds of his tank to increase the storage capacity. On the other hand, the mittadar has adduced evidence to prove that his tank has remained in the same state for about 50 years. Apart from this conflict of testimony, there is other reliable data in the case to fix with sufficient accuracy the F. T. L. of the plaintiffs' tank. Admittedly the tank water in the north submerged some lands of the Government village of Kuthukkalvalasai alias Jagaveeramaperi, when water stood in the tank at the F. T. L. Exhibit IVa is the Settlement Register of that village prepared after the first revenue survey in 1874 and shows a part of Survey No. 262 (262N in the new survey) of about 10 acres odd in extent as the waterspread of the tank. There is no reason to doubt the accuracy of this statement. The plaintiffs' 14th witness, a retired Engineer from the Travancore sarvice, prepared a plan and has drawn contours of the water-spread of the tank at various levels, one of them being the sill level of the surplus weir as it exists now. That is the 3rd contour at 97.34 level, taking the crest as the datum (100), and it will be seen that that submerges just about the extent mentioned in IVa. The adangal accounts of Kuthukkalvalasai prove that after 1893 when the mittadar began to block up the vent way of the surplus weir with plank shutters thereby raising the level of the water in the tank, about 1325 acres more of the lands are submerged so as to render them unfit for cultivation. We may fairly conclude that the present sill level of the weir is the full tank level of that tank and that the plaintiffs were bound to keep the weir open without any obstruction to the outflow from the tank at the lower end.
20. There is one further question on this part of the case. The mittadar says that a small tank called Pettaikulam further down the channel is entitled to a supply, and at the best Sivalaperi is only entitled to the water which overflows a dam placed across the channel at the eastern end of the tank. That this so-called tank was not one of the original system is quite clear; it is not referred to in the earlier documents or disputes. Mr. Brandt who saw the place in 1872-1873 says that 'it has not the appearance of a tank, it has merely the appearance of a slight widening of the channel,' It appears from the careful memorandum prepared by him (Exhibit VI) that the mittadar, taking advantage of a depression there, put up or heightened the bund, managed to gat the consent of the Range Officer of the Public Works Department to construct a masonry dam across the supply channel, to retain the water in the newly formed tank, and also introduced a sluice to lat out water, for irrigation. This took place in about the year 1869 and the Sivalaperi ryot at once complained to the Revenue authorities. The Sub-Collector directed the closing of the sluice and directed that such orders as might be passed as to the masonry work after reference to the Range Officer should be carried out; but on appeal by the mittadar the Collector modified the order of the Sub-Collector by allowing the retention and use of the sluice. Finally the Sub-Collector and Collector ordered the removal of the dam. Though the mittadar was asked to remove the dam which was the real' impediment to the flow of the water in the channel, he did not do so and he has managed to keep it on ever since. There is a pottaikulam referred to in an early document of 1822, but that is not this tank; the word pottaikulam (blind tank) is used there as a common name, probably in the sense of a tank without a sluice or a weir and, therefore not useful for irrigation; and it is remarkable that the tank now in question had originally no ayakat under it. However that may be there can be very little doubt that the masonry dam in the channel, below Pettaikulam was newly put up in 1871 and that the mittadar was sot entitled to do so As we know when it was put up and as sixty years have not elapsed, so as to give the mittadar a right by prescription against the Government, and as it is quite clear that no right to dam the channel and obstruct the flow of water at that place was granted to the mittadar, he is bound to remove all obstruction to the flow of water as it was flowing before the dam was put up.
21. Whether in seasons of scarcity or draught the Sivalaperi ryots are entitled to a division of the water flowing in the channel into three-fifths and two-fifths is difficult to determine on the materials before us If once the water reaches the Periakulam there is now no means of letting it out to Sivalapari till the water overflows the weir, which is quite unlikely when water is low in the channel and the flow scanty. Though proposals were made in 1874 and 1894 for constructing a channel in Government land to draw off two-fifths of the water before the Kunnakudi channel flows into the Periakulam, no such channel has been constructed. The question of three-fifths and two-fifths can only arise if such a channel is constructed, and we need not, therefore, determine it now.
22. There is one other question in the case which is of great importance in determining the exact reliefs which the parties are entitled to in this case. The suit as already said was instituted by the plaintiff. for among other things, an injunction restraining the Government from entering their lands for doing any repairs or making any alterations in the channel system within the limits of the mitta. The learned Government Pleader contends broadly that if it is found that the Government are entitled to any portion of the water flowing in the channel, their paramount right to distribute all unappropriated water in the public interest gives them a right to enter on the lands of a private owner through which the channel flows and make such repairs or execute such works as may be necessary to ensure a proper distribution of the water between the mittadar and their own ryots. Robert Fischer y. Secretary of State (2), the only authority cited by him in support of his contention, is really against him, for the learned Judges, at page 156 of the report observe as follows: 'it could not of: course, be suggested that for the purpose of exercising their right of control, Government would be warranted in committing an act of trespass.' In Ambalavana Pandara Sannathi v. Secretary of State 28 M. 539 : 15 M. L. J.251. where also an inamdar sued for an injunction restraining the Government from, entering on his land and executing any repairs in an irrigation channel within the limits of his village, the learned Judges apparently assumed that a right to another man's land was not implied in the Governmental function of the conservation and control of the, irrigation channels. They had, therefore, to decide whether the channel Was granted to the inamdar or remained the property of the Government. The Government Pleader also contends that the facts proved in this case establish that the Government were the owners of the channel. It is proved that the Government constructed the head sluice in. the channel in 1886, repaired the dam in the river in 1870 and 1885 and levied contribution from the mittadar. On the other hand, there is evidence that the mittadar executed some repairs in the channel himself and obtained contribution from the Sivalaperi ryots. The greater portion of the channel lies within the mitta limits and the channel as its name implies was primarily intended for the irrigation of Kunnakudi; at any rate the ayakat under the Kunnakudi tank is much larger than under Sivalaperi. The grantee of the Zemindari in 1859 also covenanted to keep the tanks and channels in repair according to the ancient custom of the Zemindari. This covenant, though intended primarily for the benefit of the inhabitants of the Zemindari, cannot be ignored in coming to a conclusion as to whether or not the channel was included in the grant. In these circumstances the fair inference to be drawn is that the channel within the limits of the mitta belongs. to the mittadar. This conclusion is materially strengthened by the conduct of the Government. In 1869,' the Tahsildar drew the attention of the mittadar to the estimate made to close a breach in the Kunnakudi dam said that the mittadar was bound to keep the dam in repair as it was within his jurisdiction and warned him that he will be held responsible for any loss to the Ayan nanja lands (Exhibit N). In 1873 and 1874, though peremptory orders were issued to the mittadar to remove the masonry dam placed in the channel at the lower end of the Pettaikulam, when he did not do so, the Government did not feel at liberty to enter on the channel at that place and remove the dam. All that the Collector could do was to advise a civil suit by the Sivalaperi ryots. Again when the mittadar shut up the vent way by planks and raised the level of the water in the tank, so as to obstruct the supply to Sivalaperi and also to submerge the Government lands in the north, the Government felt themselves unable to abate the nuisance and unsuccessfully resorted to the indirect means of imposing fasli jasthi. After the final disposal of the litigation in respect of the fasli jasthi against the Government, the matter of submergence Was again considered in 1903 and all that the Collector could say was that the ryots should be left to protect themselves; and in 1907 when the loss to Sivalaperi by the obstruction of the water-course was again brought to the notice of the Collector, the only proposal made was to construct a dam and dig a new channel new Sivalaperi in Government: lands. In fact till 1910 nobody imagined that the Government had the right to enter on the channel within the mittadar's limits. It is scarcely likely that the Government would have allowed the mittadar to set them at defiance if the channel belonged to them. I, therefore, think that the Government are not entitled to enter on the land of the mittadar against his wish and the plaintiffs are entitled to an injunction restraining the Government from doing so either for the purpose of altering or repairing the channel or tank or executing new works.
23. Mr. J. L. Rosario strongly urged that if we came to the conclusion that the Government are not entitled to go on his land, we should not determine any question as to the irrigation rights between the mittadar and Sivalaperi ryots or Government but should leave the matter at large for a subsequent litigation by the Government or their ryotwari pattadars. As those rights have been the subject of issues and elaborate enquiry in this Suit and as the Whole matter has been fully argued before ns and as it is further impossible to give adequate relief to the plaintiffs of frame a proper decree without declarations as to the substantive rights of the parties in the irrigation system, I think we ought to declare the rights of the parties more especially as it is not suggested that any more materials are available for a decision on those questions.
24. I have not hitherto referred to the works done by the. Government in outlet No. 2. Owing to the wastage of water through that outlet when water was required for irrigation, and, its insufficiency to protect the channel during floods, the Government made certain alterations in the outlet which they considered to be an improvement. The 'mittadar does not like it and has prayed for a mandatory injunction directing the Government to restore the outlet to the old state. I am not satisfied that the alterations made will in any way prejudicially affect the mittadar's rights. But in the view that I take, viz., that the mittadar is entitled and is bound to keep the channel efficient and the tanks in good repair, so as to prevent waste of water in his limits and allow the flow of water in the channel, subject to his right to fill his tank up to the present sill level of the weir, it is unnecessary to grant a mandatory injunction.
25. I agree, therefore, to the decree and order for costs proposed by my learned brother.