1. This is an appeal from the decision of two learned Judges, given under Section 98 of the Code of Civil Procedure, in accordance with the confirming judgment of one of them, Sankaran Nair, J. The question is whether water-cess was legitimately levied by Government, the appellant, from plaintiffs for the water of the Vamsadhara river, which they have admittedly used in their inam village for the irrigation of (1) second crop, (2) wet (or irrigated) crops grown on dry (or ordinarily unirrigated) land. The decision of this question will be a sufficient adjudication on the plaintiffs claims to a refund of past collections and an injunction as to the future.
2. Plaintiffs did not dispute that they used the water of the Vamsadhara, as alleged. The dispute is, therefore, only whether it belongs to and can be charged for by Government. Government has relied on Section 2 of Act III of 1905 in support of its ownership of the water and Section 1, Act VII of 1865, in support of its right to charge for it. The material portion of the former is as follows:
(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nalas, lakes and tanks, and all canals and water-courses, and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property of any zemindar...or inamdar or any person claiming through or holding under any of them,...are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land-owners, and to all customary rights legally subsisting.
And of the latter:Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank, or work belonging to, or constructed by, Government, it shall be lawful for the Government to levy, at pleasure, on the land so irrigated, a separate cess for such water, provided that where a zemindar, inamdar, or any other description of landholder not holding under ryotwari settlement is, by virtue of engagements with the Government, entitled to irrigation free of separate charge, no cess under this Act shall be imposed for water supplied to the extent of such right and no more.
3. As regards the first of these enactments, it is not material that it was passed only during the pendency of this litigation in the Court of first instance. For it is, as regards the ownership of water, a declaratory Act, and such Acts have retrospective effect (Maxwell on Interpretation of Statutes, 3rd Edition, page 309). Plaintiffs demur to its application, on the grounds that the Legislature cannot be supposed to have intended (1) to confer a right of ownership in flowing water, a thing not capable of ownership, or (2) to confiscate existing rights of irrigation or to affect them at all, when the purpose of the Act is only to justify charges for the unauthorised occupation of water and land. These objections are invalid. For (1) it is only in the last resort, and for clearer reason than has been shown, that the meaning of the general provision declaring that water belongs to Government can be nullified. For, as regards (1) the Act statedly makes a general declaration that water belongs to Government; and it is only in the last resort and for clearer reason than has been shown that I can construe it by holding that flowing water can belong to no one. And as regards (2) there is no question of taking away existing rights, but only of reserving them and assigning the burden of proof regarding them. The reference to water would be pointless with regard to its occupation as by a boat on it, the example suggested, since nothing makes such occupation chargeable; whilst the inclusion of only a declaration of ownership as to water without a machinery for charging for its unauthorised use, such as is provided for land, is easily intelligible in view of the fact that the requisite machinery in the case of water had already been provided in Act VII of 1865. It will be necessary to return to the provisions of that Act in another connection. At present it is material only that plaintiffs allege no engagement exempting from water-tax the cultivation now charged for and admit that it is not included in the extent referred to in their title-deed as wet. They are, therefore, bound to prove that the water in question is not Government water, that is, that in the words of Act III of 1905, it is the property of a zemindar or inamdar, or a person claiming under one.
4. The plaintiff's' village, Varahanarasimhapuram, is not on the bank of the Vamsadhara river, and the water reached it by the Mobagam Channel which passes through the Urlam zemindari. The judgment of Sankaran Nair, J., refers throughout to the village as part of the zemindari, but mistakenly. For it is, it is admitted, an independent inam village, which was part of the Jalmur Estate and, having been bought in with the rest of that estate about 1808, is now held directly under Government. Mr. Rangachariar for the plaintiffs has accordingly attempted to establish that the water was either theirs or the property of Urlam. He at one time proposed to argue that plaintiffs had easement or other customary rights against Urlam, which would, in some way not explained, justify them in claiming the water against Government. But this corresponded with nothing in the plaint, or, so far as the judgments showed, in the arguments at earlier stages of the case, and we refused to hear it. His contention was then that the water, being the absolute property of plaintiffs or Urlam, was, in the latter alternative, used by plaintiffs in accordance with some arrangement or license by the Urlam proprietor, the nature of which could have no bearing on the material point that the water did not belong to Government and, therefore, was not material for the purpose of his argument. That case is intelligible. It is only to be borne in mind that, so far as it relates to Urlam, proof of nothing less than absolute ownership is essential in order to sustain it. For we have been shown no authority for holding that mere riparian rights, short of ownership of the water, extend to its diversion for the irrigation of land other than that belonging to the riparian owner himself. Section 7, illustration (f), Indian Easements Act, negatives the wider view of such rights. The Calcutta High Court refused in Belbhadar Pershad Singh v. Sheikh Barkat Ali11 C.W.N. 85 to apply the American doctrine on the subject to India. And this Court in Robert Fischer v. Secretary of State for India 2 Ind. Cas. 325 : 32 M.F 141 held that, if the English Law were applicable, the disability of a riparian owner to use water for non-riparian tenements was absolute and did not depend on proof that actual damage was caused by his doing so. Mr. Rangachariar put his case for the ownership of the river water by Urlam on two alternative foundations; and I shall now deal with the first of them.
5. It was stated by Mr. Rangachariar as follows: When a river, such as the Vamsadhara, flows by a zemindari, such as Urlam, half the river-bed adjacent to the zemindari, and the water thereon belongs to the zemindar, and the other half to the opposite riparian owner, subject to superior riparian rights in the water. The District Judge dealt with this, apparently with the consent of the parties, by a reference to his judgment, Exhibit M in this suit, in another litigation relating to the same river and estate, Original Suits Nos. 37 and 38 of 1904, his finding being that the bed and consequently the water did not belong to Government.
6. That judgment was, of course, given before the Act III of 1905 and the imposition of the burden of proof on the private claimant prescribed in it became law. It is sufficient that it was based on the rejection of an argument from the alleged tidal and navigable character of the river and an inference as to the ownership of its water from the ownership of the channels conveying them to the irrigated land, which I shall deal with later. It is not, in my opinion, clear that the English and American principles relied on by Mr. Rangachariar, as supporting the ownership by the riparian owner of half the bed adjacent to his holding, can be applied to India, where Government has special rights and as regards irrigation special functions. The Indian authorities dealing with accretion are not relevant, since they are concerned, not with ownership of the river-bed, but with a special method of acquiring ownership in formations in it above water. And I am inclined to share the doubt expressed by Sadasiva Aiyar, J., in Mukkassa Nair Veetiil v. Secretary of State for India 15 M.L.T. 247. A decision on this part of plaintiffs' contention is however, unnecessary, because I do not think that ownership of the water will follow from the ownership of the bed, or the moiety of it adjacent to the holding.
7. It is evident that this principle must be scrutinised carefully, before it can be accepted. For its practical application would be most difficult. The right of Government, for instance, to control water for irrigation purposes has been recognised in Robert Fischer v. Secretary of State for India 2 Ind. Cas. 325. cited above, and other cases; but when that right is in question, whether it is general, as founded on authority, or it arises only from the ownership of the opposite bank, how is it to be exercised or limited to the control of only half the water? and how is such limitation to be imposed on opposite proprietors? It is significant that no decisions appear to have been given by the Courts on claims so likely to result in controversy. As regards authority, plaintiffs rely mainly on the early doctrine, embodied in the maxim 'Cujus est solum, ejus est usque ad coelum,' which is stated at page 78; Coulson's 'Law of Waters,' 3rd Edition. But they neglect the learned author's conclusion, that it is supported by modern authors only as regards standing and percolating water and running water which remains for the whole of its course on the land of a single owner, but that with regard to natural streams flowing through adjoining lands, the enjoyment of which is only usufructuary and not absolute, the right to use the water does not arise from the ownership of the soil on the stream, but from the right of access to it which land owners on the banks have by the law of nature.' It will be observed that this statement of the English Law, which I adopt, since it has not been shown to be incorrect, attributes to individuals a right of user in certain circumstances, not of ownership; and I recall the fact that, as observed supra, the establishment of the right to such user will be insufficient to justify Urlam in supplying plaintiffs. The Law in England as regards ownership will be made clearer by a quotation from Embrey v. Owen (1851) 6 Ex. 369:
Flowing water is public juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only that all may reasonably use it who have a right of access to it, that none can have any property in the water itself except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only.
8. On the English Law plaintiffs have relied almost exclusively, as regards this part o their case, and it does not support the plenary ownership of the water by Urlam, or more than its right of user for cultivation of its own adjoining lands, and not for any supply to the lands of others such as plaintiffs. That is sufficient to negative the case of private ownership, as based on the ownership of the bed and banks, and to authorise the application of the presumption referred to in Act III of 1905. It will be convenient to postpone dealing with the Indian cases, until plaintiffs alternative foundation for the ownership of the river water by Urlam has been considered.
9. It was stated by Mr. Rangachariar as being that in a permanently settled estate, such as Urlam, where a river flows through or by the estate, the river-bed and waters, to the extent to which they are in that estate, were granted with it to the zemindar in 1803, subject to superior riparian rights.
10. It is admitted that the Urlam Estate was formed out of haveli lands; that is, lands which, before the Permanent Settlement, were in the possession of no zeminda. There can, therefore, be no question of the existence of any rights, such as zeminiars enjoyed before 1802, in this case; and it can be said at most that rights identical with those of zemindars elsewhere were then conferred. The sanad containing the terms, on which the estate was granted in 1803, has not been exhibited. But it is agreed that it is in the standard form given at page 119, Volume II, Board's Standing Orders (1907). It is conceded that it supports plaintiffs' contention in no degree directly. For it refers only to land and land assessment and makes no reference to rivers, or other water-supply, in connection with the grant. The argument is accordingly that, as the references are to land and land assessment or revenue alone, no further payment was to be made on any other account in connection with cultivation and, therefore, none on account of river water. Particular reliance has been placed on Clause 4 by which provision was made for the liability of the estates for payments, in addition to the land tax, for various other articles of revenue, of which water-tax is not one, the inference being that, as such articles are enumerated and the enu meration must be supposed to be exhaustive, the omission to mention water-tax entails that none was leviable. These are the only grounds, on which it is proposed to imply a grant of all river, water for irrigation, past and future, from the terms of the sannad, itself; and they are, in my opinion, inadequate. No doubt ordinary existing irrigation was granted, since payment for one irrigated crop would, in accordance with usage, be included in the total consolidated land tax or peishkush, so far as it was for the wet land in the estate. That peishkush was, as Sankaran Nair, J., has shown in another connection in his judgment, fixed a bitrarily, and it is not possible to distinguish the portions of it payable for irrigation and land revenue proper. But that is the most that can be allowed, or with which authority and revenue practice are consistent. Extraordinary or second crop irrigation and extensions of irrigation are, no doubt, not mentioned in the sanad. But it is not a necessary inference that they also were included in the grant. For the intention may equally have been to charge for them separately, as has, it will be found in some cases at least, been done. As regards Clause 4, the enumeration does not seem to be either exact or comprehensive. It has not, for instance, debarred Government from levying a duty on the possession of arms in zemindaris, or a road and railway cess for the benefit of Local Boards, although neither of these imposts comes within the descriptions of those the right to which is reserved. In Vedanta v. Kanniyappa 9 M. K14 this Court dealt with the clause and the connected section of the Permanent Settlement Regulation XXV of 1802, holding that the dues, then in question, included in the sayer were not exigible by the owners of land as such, but by the Sovereign, and that, whatever the origin of their title, Government intended to treat the zemindars, with whom it effected a Permanent Settlement, as landed proprietors, and to ignore any rights which conflicted with its own sovereignty. And the judgment goes on:
Such a large proportion of the Crown revenues of India was derived from the land, directly or indirectly, that it was difficult for the early British Administrators to separate with precision the revenue which could conveniently be collected by the Crown from that the collection of which could more conveniently be left to those subjects who had exercised the functions of collection under native rule.'
and later (page 25).
It cannot be denied that in sanads issued in virtue of the Permanent Settlement Regulation the Government dealt ordinarily only with the land revenue. The insertion in sanads issued by the Government of Madras of a clause repeating the declaration contained in the Regulation as to the exclusion of items of revenue other than the land revenue was surplus sage.... Had the clause been omitted, it could not have been contended that the zemindar was entitled to collect revenue other than the land revenue, because of its omission.
11. All this enunciates what the wording and matter of sanad and Regulation indicate, that the Settlement proceeded on general lines and that a grant of one item of revenue is not to be inferred from silence regarding it. Such an inference, it must be added, is intrinsically improbable. For whatever the actual irrigation in 1802 under the great deltas of the Kistna and Godavari, it cannot be supposed that their potentialities were overlooked or dealt with by implication, or that, if they had been transferred, there would have been no attempt in the sanad and Regulation, or by some other contemporaneous enactment, to provide for responsibility for their control, or the decision of conflicting claims to their waters. The grant under construction was made by the Crown; and the Rule of construction in point is not, as it was in Balbir Singh v. Secretary of State 22 A. F 96 that applicable to the grants of a particular description of property, but the general rule, that grants by the Crown must be on strued beneficially to it. Vaman Janardan Joshi v. Collector of Thana and the Conservator of Forests 6 B.H.C.R. 191; Collector of Ratnagiri v. Antaji Lakshman 12 B.J 534 and Adusumulli Suryanarayana v. Acchutta Potanna 22 Ind. Cas. 339 : 26 M.L.J. 99. These, the direct and in my opinion, the only legitimate grounds for a decision, because they alone are available from the actual terms of the grant, entail that no grant of the river water to the Urlam proprietor in 1803 is established.
12. Direct construction of the grant yielding nothing favourable to the plaintiffs, they have endeavoured to support their case further by collateral considerations; and they have, it will be found, made similar attempt in connection with their proposed interpretation of Act VII of 1865. Those considerations consist in the alleged opinions and intentions of Government and its officers at the time of the Settlement, as expressed in various publications. I do not think that they are a legitimate ground of decision with reference to Section 93, Indian Evidence Act, o the general principle that, if 'the language of the Statute admits of no doubt or secondary meaning, it is simply to be obeyed, without more.' Maxwell on Interpretation of Statutes, 3rd Edition, page 72. Here the fact that the sanad makes no reference to a topic to which it might have referred, does not render its language ambiguous or defective; and the Regulation and Act are, in my opinion, susceptible of a reasonable interpretation as they stand. I, therefore, enter on this branch of the argument solely because it has bulked largely here and in the judgment of the learned Judge.
13. It is a difficulty of a different kind that the matters in question were (as plaintiffs learned Vakil admits) never relied on at the trial in the District Court or the hearing of the appeal, when Government might have dealt with them by explanation or counter-citation, but were first referred to in the learned Judge's judgment. The learned Advocate-General has, however, waived objection to them on that ground, claiming only the right to file documents in reply in case, we think, that such reply is required, and filing Civil Miscellaneous Petition No. 1862 of 1915 for their admission. We have not thought them necessary; and we need only add that we felt bound to refuse to allow plaintiffs Vakil to make further references for the first time at this stage in the case to other publications, including Baden Powell's 'Land Tenures' and Volume LXV of 'Records printed for the Madras Government.'
14. It is not necessary to reproduce the extracts relied on, as the greater part of them are given in the learned Judge's judgment. The inference from them must be weak, since they consist in the broadly expressed opinions and pious expectations of bodies so diverse as the Select Committee and the Famine Commission of 1880. The general argument in Court and in the learned Judge's judgment, so far as it is distinguishable from that based on the terms of the sanad already dealt with, seems to me to require more definite support from evidence than it has been given. In particular the assertion that some zemindars had rights over rivers before the Settlement of 1802 and retained them after it and the attempt to corroborate that by reference to the transfer to other zemindars, of which Urlam is one, of the duty of maintaining and constructing tanks and water-courses in haveli lands, are open to question. For the present dispute which relates only to rivers, which are not mentioned in connection with haveli lands and the ownership of tanks, to which (for all that appears) the water-courses referred to may have been appurtenant, and of the water in them would be subject to quite different considerations, with which we are not concerned. For the rest, only three conclusions, which, in my opinion, require notice, have been drawn from these materials and I do not think that they in any way probablise the grant of river waters alleged. They are that (1) renters were expected to develop the lands entrusted to them by improving the channels and other works transferred to, or left in, their control; (2) it was hoped that cultivation would be extended over land waste at the time; (3) there was an impression that the existing supply of water would be continued. But as regards (1) it has still to be decided, with reference to the authorities to be referred to, whether the assignment to renters of the duty of maintaining channels would involve any exemption of water flowing through them from charge, or any transfer of its ownership; (2) if an extension of cultivation was anticipated, it did not follow that the renter's profit was to accrue from his charging for water and not merely for the land and, unirrigated cultivation being common throughout the Presidency it need not have been assumed that the new cultivation would be irrigated or would be irrigated gratuitously; and (3) if the continuance of existing irrigation was secured, that did not entail the grant of free additions to it. On the other hand, if evidence of this description is to be considered, it is significant that no more direct reference to anything approaching a plenary grant of the river water has been found, if one in fact was made, and that the one statement regarding irrigation works in the Instructions to Collectors, that at page 331, Fifth Report, refers only to tanks and water-courses, not to rivers, or works on them. In these circumstances I do not think that this line of argument, if admissible, assists plaintiffs appreciably.
15. There is, next, a contention that Act VII of 1865 is either inapplicable to charges for river water in zemindars and inam, villages, or that its wording is consistent only with a grant of rights of ownership in river water to zemindars and inamdars before its date, on the grounds that (1) the Act was passed in view of the necessity for realising returns from the lately constructed Kistna and Godavari anicuts and not in order to charge irrigation from private sources, where no improvement in or addition to those sources had been made; (2) it applies to rivers in ryotwari tracts only, not in zemindaris.
16. As regards (1) I do feel at liberty to interpret an Act the body of which is clearly and comprehensively expressed, with reference to the alleged motives of the Legislature. We have been referred to the preamble; but it can be treated as indicative of the scope of the Act, only when legitimate doubt regarding the latter arises from the uncertainty of its terms; and I feel none here. Moreover, it is not clear that the preamble in this case justifies any conclusion. It, no doubt, refers to the necessity for 'a fit return' being made to Government 'on account of the increased profits derivable' from works constructed or improved by it. But the reference to both drainage and irrigation works, as the preliminary to provisions which authorise a charge only for irrigation, makes it doubtful whether any accurate statement was attempted; and in the absence of any subsequent provisions for the calculation of the charge to be imposed with exclusive reference to the expenditure on some new work or improvement with which the irrigation can be connected, it is impossible to hold that the right to charge is restricted to cases in which such connection can be established, or that other cases were intended to be exempt because of a previous grant of river water or for any other reason.
17. Then as to the alleged restriction of the operation of the Act to charges for river water in ryotwari tracts, that again is based solely on inference, though it would have easily been susceptible of direct expression. It is urged that Section 1 must not be read as applicable to zemindar is and inams, because, but for its proviso, it would authorise the charging even of irrigation in respect of which an engagement with Government exists, a result so unjust that the Legislature cannot be supposed to have contemplated it, and that the proviso is useless to exclude this result, because it cannot apply to irrigation in zemindaris and inam villages, since the term 'supplied,' which is used in it, not 'supplied or used' as elsewhere in the sections, is inappropriate to those tracts, inasmuch as it connotes a previous request for water which zemindars and inamdars do not and need not make. This attenuated line of construction must be distrusted, if only because its acceptance would leave it doubtful what class of cases the proviso was framed for. But in fact it rests entirely on the distinction between supply and use drawn in Venkatappayya v. Collector of Kistna 12 M. K 407 and Krishnayya v. Secretary of State 19 M.K 24. It is not necessary for the present purpose to consider whether those decisions were correct. For they dealt with ryotwari cultivation in the Kistna District. In that district, as I shall show immediately, Government was at that date insisting on its rights, and under the rules for levy of water cess on zemindari and inam lands in the Kistna and Godavari deltas at page 2, Board's Standing Orders, Volume II (1907), land-holders or the cultivators under them immediately concerned were being required to submit previous applications for the use of water. The interpretations of the term 'supply' and the distinction now relied on between it and 'use' would, therefore, have had no such implication in the district in which these decisions were given as that now suggested; and it may be doubted whether they would have been adopted if the cases had come from other districts, such as Ganjam, than now in question. I, therefore, find no difficulty in applying the proviso generally to land irrigated under an engagement and the Act, as a whole, to river irrigation in zemindaris and inam villages.
18. Something has been said, in this and other connection in argument and in the learned Judge's judgment under appeal, of the history of the relations between Government and the zemindars. It is argued, for instance, that the 'engagement' in the proviso just referred to cannot have been merely for the exemption of lands cultivated wet in 1865, because it would have been impossible to distinguish for that purpose the extent of wet cultivation on which,' with other assets, the peishkush was fixed in 1803. In some cases again it is known to have been fixed then on the extent of cultivation as ascertained before 1786; and it is not to be supposed that the increase between that year and 1802 would have been left out of the calculation, if the extent in 1802 had been intended to bind the zemindar or Government in future. And similarly, to quote the learned Judge, 'if the zemindar is now made to pay cess for the excess area(over that allowed as wet at the Settlement), he cannot now localise the area, if any, then under cultivation, so as to demand their contribution from the tenants of the excess area.' And reference has also been made to the failure of Government in this case to make any demand for many years up to 1894. These arguments, however, are not relied on as supporting any plea of prescription or estoppel against Government, but as relating to conduct which will throw light on the meaning of the sanad, Regulation and Act and the meaning of 'engagement' in the last mentioned; and I deal with them only on that basis, and, as before, rather because the learned Judge has relied on them than because they are, in my opinion, admissible. Firstly, as to peishkush, the particular facts referred to by the learned Judge appear to have been among those imported into the case in his judgment. But, accepting them as given, I cannot, with all respect, see how they prove more than that the peishkush was fixed in some zemindaris in more and in others in a less arbitrary way; and I cannot, even in the case of the latter such as Pittapur, draw any inference from the omission to bring sixteen years' wet cultivation into the calculation. It is common ground only that at least wet cultivation existing before 1802 was included in it and became exempt from separate charge. When the calculation was, it is admitted, in all cases inexact and differed only in the degree of its inexactitude, it is conceivable, as matter of conjecture, that either, as plaintiffs contend, the potential right to the use of water in the future was included in the grant, or that it was reserved to be the subject of future arrangement, which was never made. But the choice between these two theories must then be made on the considerations already set out. It would appear to be true that no effort was made contemporaneously with the Permanent Settlement to identify and register, that is to localise, the particular fields entitled to irrigation at its date. The omission was, no doubt, unfortunate and has led to litigation, and the hardship may, no doubt, be real as between the zemindar and his tenants, when the former has to select from the latter the individuals from whom he will recover what he has paid to Government. But similar hardship must ensue and presumably is taken into account in connection with every Statute by which the burden of proof is placed on the subject against Government and has to be discharged after the lapse of years; and that fact cannot justify the Court in presuming, or accepting inadequately supported inferences in support of a grant, of which direct evidence is wanting.
19. There is, moreover, evidence available, which, if this line of argument is legitimate deserves consideration, since it consists in rules published by Government, which are, it is to be presumed in the absence of anything to the contrary indicative of the extent to which Government has claimed and zemindars and inamdars have acquiesced in a restriction of free irrigation, irreconcilable with these arguments. The theory of a grant of free irrigation from rivers in 1803 was, no doubt, stated by Mr. Rangachariar, as I gave it above, as confined to those zemindar is through which the river in question flows. But that restriction was frequently lost sight of in argument and does not appear to have been recognised in the judgment under appeal, the contention dealt with in it being for a general grant in 1802 of existing irrigation and such further irrigation as might ever be made available, without reference to the proximity of any part of the zemindari to the source. And naturally so. For the restriction can have no logical foundation when the grant is not supported with reference to riparian ownership and every argument for it which has been adduced would be equally valid, if the broader statement in the learned Judge's judgment had been in question before us. It will then be materially against plaintiffs, if it can be shown that some zemindaris have been subjected to the charge for water for many years inconsistently with the grant which they allege as made to all and with their interpretation of Act VII of 1865. That, however, his been the case as regards the large zemindaris, including Nuzvid and Pittapur in the Kistna and Godavari Districts, under rules published originally, in 1861, and re-published last in 1906, which are printed in the judgment of Sankaran Nair, J., in Zamindar of Kapileswarapuram v. Secretary of State 26 Ind. Cas. 590 Board's Standing Orders Volume II (1907). Rule 10 of the original rules and Rule 6 of the later, no doubt, restrict liability to water-tax payable on lands charged as irrigated at the time of, or possessed of means of irrigation before, the construction of the anicuts. But the reason for this restriction, the effect of which was discussed in the case above mentioned, is presumably to be found in the difficulty, already referred to, of determining what land was nd was not irrigated at the date of the Permanent Settlement, not in any consciousness that land newly irrigated since it would not have been liable to charge in consequence of the zemindar's ownership of the river water. For if that ownership had been tacitly admitted, it would have been impossible to do what the rules certainly provide for; that is, to treat zemindars as liable for any charge for river water at all. It is not, it should be pointed out, possible to regard the charge under the rules as made in consideration only of the part played by the anicut in making the water available and as supplementary to a water rate imposed and retained by the zemindar on account of the water itself. For, it is not suggested and it is not, I believe, the case that any such payment is made to the zemindar by the actual cultivator, though evidence of such a payment should have been available to support plaintiffs' argument, if it corresponded with facts. Moreover, the tenancy law in force at different times in the Presidency, Section 11(4), Act VIII of 1865, and Section 30(3) and 33, Act I of 1908, would discountenance such a pretension on the part of the zemindar; vide also Bachu Ramesam v. Nukala Bhanappa 7 M.K 182 and Narasimha Naidu v. Ramasami 14 M.K 44. When, as is the case, the grant in 1803 is alleged as founded throughout the Presidency in the same manner, the fact that it has been formally negatived by practice in two districts, in which the rights of Government have been continuously asserted, is against its validity in others, where they have not.
20. The conclusions reached are against the establishment of the alleged grant in 1802 either directly or indirectly with reference to the wording of Act VII of 1865, or, if the evidence is admissible, the conduct of Government and the expressions of contemporaneous opinions and expectations relied on. It remains to deal shortly with the cases, so far as they are in point, with reference to each of the foundations on which plaintiffs' claim has been argued, the ownership by Urlam of the river-bed and the grant. I have reserved both classes of cases for treatment together, because both are subject to the same observation, that they rather show the vexed nature of the questions in issue than support the existence of a current of affirmative authority in respect of them. For the earlier really decide very little and the later contain hardly any attempt to reconcile the conflicting opinions, which have been expressed.
21. The only early case as to the claim based on ownership of the river-bed is Narasimha Sastrial v. Secretary of State 1 M.L.J. 167. In it the claim, as originally made, was as wide as plaintiffs'. But in second appeal that was abandoned, and the decree allowed merely the right of a riparian proprietor to a reasonable use of the water. The legitimate extent of such reasonable use was not defined; there is nothing to suggest that it included what plaintiffs here require, the right to irrigate the land of others; and the fact that Government claimed only the right of a lower riparian proprietor is immaterial, since a wider claim would have resulted in no more favourable decision. On account, it may be, of some systematic and novel attempt by Government to assert its rights, the other decisions on this part of the argument and the majority of those relating to the grant date from 1908. Robert Fischer v. Secretary of State for India 2 Ind. Cas. 325 : 32 M.K 141 : 5 M.L.T. 149 : 19 M.L.J. 131 recognised the paramount right of Government without reference to Act III of 1905, not only to regulate river water, but also to ownership in it, since, after deciding that any surplus of water after the zemindar's customary requirements had been satisfied was at the disposal of Government, the learned Judges held that the paramount right of Government under the law of the Presidency was independent of the ownership of the bed of the stream, In Secretary of State for India v. Nautheswarar 6 Ind. Cas. 199 : 7 M.L.T. 407the plaintiff was an inamdar, but it is admitted that his rights would be identical with those of a zemindar; and it was held immaterial that the natural stream, which was in question, had been swelled by rain water. The conclusion was in favour of Government, and it was observed that Act VII of 1865 is not based on any theory of the ownership of the bed of a water-course being the foundation of a right to use the water free of charge. Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 was decided in appeal against the judgment in the case already referred to, as containing the District Judge's finding on this point, and is statedly dissented from by Sankaran Nair, J. in his present judgment. The conclusion in favour of Government is based on Act III of 1905 and a statement that the owners of land on the river banks do not own its water. So far the current of authority is clearly in favour of Government. But in Secretary of State v. Kannapalli Vencataratnammah 15 Ind. Cas. 594 : (1912) M.W.N. 771 the Court decided for plaintiff, on the ground that the ownership of water from a Government source followed the ownership of a branch channel by which it was conveyed. Ambalavana Pandara Sannadhi v. Secretary of State 15 M.L.J. 251 was referred to, but in it the ownership of the branch channel was not established and it was unnecessary to consider what its effect on the ownership of the water would have been. So far as Secretary of State v. Kanuapalli Vencataratnammah 15 Ind. Cas. 594 : 23 M.L.J. 109 : (1912) M.W.N. 771 is in point (for it refers only to a channel carrying Government water, not to a river), its authority is impaired by the fact that it does not take account of Act III of 1905, or the reference to water, as well as water-courses, in it and makes no reference to other cases already mentioned. In Secretary of State v. Ambalavana Pandara Sannadhi 18 Ind. Cas. 37 M.K 369 note the judgment adopted the positions as to the effect of Act III of 1905 and the connection between ownership of the river-bed and water now under consideration, though it may be observed that the finding as to the plaintiffs' right to water sufficient to fill his tanks would have been ground for a decision in his favour. Vide Maria Susai Mudaliar v. Secretary of State 4 M.L.J. 350. Lastly, there is the judgment of Sankaran Nair, J, in Secretary of State v. Simhadri Jaghapathiraju 26 Ind. Cas. 692 to the same effect, whilst the other learned Judge concerned, Spencer, J., did not, if I understand him correctly, express a definite opinion on either point. The safe conclusion from these authorities is, I think, only that the theory of a connection between the ownership of the river-bed and water is of recent, growth and that the affirmative reasons which are necessary in order to support it and to displace the earlier decisions have not been given.
22. The first case relied on as supporting a grant in 1803 is Ponnusawmi Tevar v. Collector of Madura 5 M.H. C. R. 6; and there is, no doubt, some language used, particularly in the judgment of Innes, J., which implies that a transfer of the right to use the water in a channel was the basis of the decision. But he connected that transfer, not with the Permanent Settlement, but with the acquiescence of Government in the plaintiff's enjoyment of what had become a customary right. And there is a caution to be observed in the application of this and other cases to the question before us, that references to and findings in favour of a right to water do not necessarily relate to water free of charge, or deal with more than the right to water from a particular source or provided in a particular way. Thus in the case under consideration the plaintiff's right to free irrigation was never disputed, Government alleging that other sufficient provision had been made for it; and the decision is, therefore, irrelevant to the present argument. In Maria Susai Mudaliar v. Secretary of State for India in Council 4 M.L.J. 350 and Secretary of State for India v. Ambalavana Pandara Sannadhi 8 Ind. Cas. 357mittahs, parts of zemindaris granted in 1803, were in question, the irrigation being by artificial channels taking off from rivers; and these cases are relied on by the plaintiffs, though the estates were not riparian. But the rule laid down in general terms gave no support to their contention, since it was that the only undertaking to be implied from a grant of land by Government is one to supply water free of charge to the extent of the accustomed flow at its date, that flow in the earlier case being measured by the capacity of tanks, which the proprietor was entitled to fill, and in the later by the extent of land irrigated. In Secretary of State v. Ambalavana Pandara Sannadhi 18 Ind. Cas. 294 note there is nothing to show whether this principle was referred to in argument; and it is not referred to in the judgment, parts of which appear inconsistent with it. The argument based on a grant in 1803 made its first clear appearance in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 in which in fact the Urlam proprietor was plaintiff; and it is significant that it was postponed so long. It was rejected shortly, the Court describing the only engagement involved in the Permanent Settlement as it was described in Secretary of State v. Ambalarana Pandara Sannadhi 18 Ind. Cas. 37 M. 369 note and as it has been earlier in this judgment, 'that the peishkush being fixed with reference to the area under irrigation, no further charge for the use of water should be made in respect of that area.' There is next the judgment of Miller, J, in the case before us in favour of Government. Zamindar of Kapileswarapuram v. Secretary of State 26 Ind. Cas. 590 note relates to the Kistna District and has already been discussed. My conclusion is that the recognition of a grant in 1803 is of recent date, though it is not clear how far the earlier decisions incompatible with one were given after any such full argument for the contention as has subsequently been put forward. In the circumstances I can only hold that authority, if it does not support, is no obstacle to the decision I have come to.
23. The result is that neither the right of Urlam to the river water, whether as founded on ownership of the river-bed or on grant in 1803, nor plaintiffs' right, so far as it is alleged to be derived from Urlam, has been established. The presumption in favour of Government ownership, authorised by Act III of 1905, must, therefore, be made.
24. The remaining ground, on which Mr. Rangachariar argued the case, was an assertion of plaintiffs' direct ownership of the water. In consequence of the misapprehension of their position by the learned Judge, it is not distinctly referred to in his judgment; but it was stated before us as being that, where there is a channel taking off from a river and it is at the time of Settlement part of the irrigation system of the estate, then, whether or no that channel runs entirely through the estate, it and all the water in it belong to the estate, subject to the customary right of others. In the present case the Mabagam channel, that in question, no doubt, runs through the plaintiff's inam village after running through part of the Urlam Zemindari and before running through a Government village. But then we have the finding of the learned District Judge, which we have been shown no reason for dissent from, that there is practically no evidence to show that the channel was dug by plaintiffs' ancestor, or that any repairs were executed by them or their fellow-inamdars on it, or of any title of plaintiffs or their ancestor to it. In these circumstances it is impossible to hold what plaintiffs' argument requires, that the channel is part of the irrigation system of their village. Further, if any part of the channel were plaintiffs' property, the conclusion already reached, that the river water is the property of Government, would be valid against them; and we have been shown no reason for holding that Government water becomes the property of any individual who succeeds in bringing it into a channel on his land. That position would, no doubt, be justified directly by the case of Secretary of State v. Kannapalli Venkataratnammah 15 Ind. Cas. 594: (1912) M.W.N. 771 already referred to, and indirectly perhaps by other cases which I have declined to follow. It is, however, negatived by the statement in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67:
It does not follow, because the zemindar provides the necessary channels to enable the irrigation of the zemindari lands, that although those channels carry water supplied from a river or channel belonging to the Government, the irrigation is nevertheless exempt from, watercess; and the same conclusion is also supported by other cases among those already dealt with. It is to be observed that the plaintiffs have not and probably could not have based their right to water without charge as distinguished from mere supply of water, on custom. The decision on plaintiffs' claim, as based on their own independent right to free water, must also be against them.
25. I would for the foregoing reasons allow the appeal, dismissing plaintiffs' suit with costs throughout.
Sadasiva Aiyar, J.
26. It is unnecessary for me to state in detail the facts and contentions fully set out in the judgment of Sir Sankaran Nair, J., under appeal.
27. I might begin by saying that when two very learned Judges (Sir Leslie Miller and Sir Sankaran Nair have differed on a question of law, after each of them had bestowed an extraordinary length of consideration to the matter, it is with great diffidence that I express my own opinion on the question on which they have differed.
28. I wish in the first place to clear the ground by a few short remarks on questions which are not either relevant or very remotely relevant to the points to be decided in this case and also on certain arguments advanced on both sides, which, to my mind, are of dubious soundness.
(A.1). The proviso to Section 1(b) of the Madras Act VII of 1865, which refers to engagements with the Government by zemindars, inamdars or other landholders, need not be considered in this case. [What the engagement of a zemindar or inamdar with the Government is, how it is to be ascertained, whether the area mentioned in an inam title-deed as wet is binding on the inamdar or the Government and several similar questions connected with this matter have been considered in numerous cases, of which the latest was decided by my Lord the Chief Justice and Mr. Justice Srinivasa Aiyangar about ten days ago in Secretary of State v. Sri Perarulala Ramannja Geer Swamigal 30 Ind. Cas. 605.
(A.2). A historical retrospect of the relations between the Government and the zemindars, between the Government and their ryotwari tenants, between zemindars and inamdars, between zemindars and their ryots, between the inamdars and their tenants, of the conflicting claims as to the ownership and proprietary rights over the soil made by each of these parties, of the claims to communal lands and so on and so forth, seems, in my opinion, to be of little assistance in arriving at a true view of the provisions of the Statute and Case-Laws which now mostly govern the rights of these parties. Historical deductions almost always differ according to various idiosyncracies, syampathies and prejudices of the students of historical data. Further, the rights of zemindars, as they once existed or are alleged to have existed, cannot affect for better or worse their present rights. I am, therefore, unable to agree with the argument of the Advocate-General based on historical data that a zemindar has now no proprietary right in the soil of the lands enclosed within his zemindari limits, the argument being that as at onetime he was a mere farmer of revenue under the old indigenous Governments, his claim to proprietorship of the soil of poramboke lands should be now negatived. Nor do I attach much weight to the contentions of Mr. Ranga chariar based on the sovereign rights which are alleged to have vested once upon a time in zemindars, such sovereign rights being alleged to include absolute powers of disposal of all lands within their territories. Regulation XXV of 1802, Section 2, vests the proprietary right over the land within a zemindari in the landholder, although that proprietary right may be subject to the communal rights of the villagers and to the occupancy rights of ryots, all which rights are now protected by Statute Law, that is by the Estates Land Act and other Acts. Numerous cases both in this Presidency and in Bengal) where permanent sanads were issued in practically the same form as in Madras) decided by the Privy Council and by the High Courts of Madras and Calcutta have established the rights of the owners of permanently settled estates over the beds of the rivers passing through their zemindari, over the forest lands and hills, and over the mines and minerals found within the zemindari, and over the tanks and the fisheries in the tanks and over the waters therein, that is, they have, in my opinion, established the rights of the zemindars as proprietors of the poramboke lands within their zemindari limits. The inam title-deeds for whole inam villages granted by zemindars prior to the Settlement and confirmed by the Government (both prior to and at the time of enfranchisement) also vest the proprietary right in the poramboke lands (in inam villages, subject, of course, to the customary rights of the ryots and residents) in the inamdars; and the Case-Law has, in my opinion, uniformly recognised that right, of the zemindars and inamdars. The judgment in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 has accepted this position, so far as proprietary rights over poramboke lands are concerned. See also Po nusawmi Tevar v. Collector of Madura 5 M.H.C.R. 6 and Narasimha Sastrial v. Secretary of State 1 M.L.J. 167.
(A.3). The consideration of the questions whether the Government could have intended to be guilty of so much harshness and oppression as would result if a particular Statute were to be interpreted in one way, and whether the Legislature could have intended such a sudden change in the law as would result from a particular interpretation, the consideration of these questions, in my opinion, is of doubtful utility unless the words of the Statute are so very ambiguous that it is legitimate to resort to such extraneous considerations. Speaking for myself, I am not satisfied that there is in this case justification for resort to such extraneous considerations. Further, what might be deemed harshness and oppression on the part of the Government by a mind holding conservative views as regards the sacred rights arising from individual property in land might be considered by a mind with socialistic leanings (socialism, except of the very extreme kind, not being a heretical doctrine in these days) as the proper beneficial exercise by the Government (representing the public communal interests) of its right to get the benefit of unearned increments and of the performance of its duty to utilize the sacred inalienable claims of the people as a whole to the common enjoyment of the benefits arising from all the lands within a State. I shall, therefore, dismiss from my mind the arguments of Mr. Rangachariar based on the alleged glaring iniquity and injustice of trying to get some more revenue out of zemindars and inamdars after the solemn promises alleged to have been made to them by high officers of Government several decades ago.
(A.4).Further, I do not feel much pressed by the wide language used in old English cases and relied on by Mr. Rangachariar as to no individual human being being entitled to claim, ownership of flowing or standing waters, as water standing on or flowing over land (in this respect resembling the air of the atmosphere) cannot be made the subject of ownership until it is separated in vessels or solidified into ice and severed and appropriated as a moveable Mr. Rangachariar quoted English text-books and cases in support of his contention. Under the old English Common Law, it seems that as water is neither land nor tenement, it cannot be sued for separately in a real property action under the name of water or by measure, so long as it is standing on or flowing over land, although the land which underlies it may be the subject of a Common Law action. I think that references to the technicalities of English Common Law actions merely tend to confuse the mind when it has to decide on the rights of Indian litigants. I shall, therefore, not deal with the arguments based on antiquated forms of action. The Indian Legislature in Madras Act III of 1905 has made reference to the 'property' rights not only of Government but of zemindars, inamdars, Government ryots, Malabar jenmis, etc., in standing and flowing water, and Indian Courts must recognise such 'property' rights so far as they are recognised by the Indian Legislature. Further, the use of the wide words 'owner', 'property' and 'proprietor' even in the case of lands has led to great confusion in the determination of occupancy and other rights, as pointed out by Sir Subrahmania Aiyer, J., in the Cheekati case Cheekati Zemindar v. Ranasooru Dhora 23 M.K 318.
(A.5). There were some arguments advanced at the Bar on the question whether the words 'river,' 'stream' 'channel,' and 'tank,' found in Section 1(a) of the Madras Act VII of 1865 meant (1) the bed, banks and the volume of waters taken together in the river, stream, channel or tank, or (2) whether it meant the bed alone, or the bed and banks alone of the river, stream, channel or tank, or (3) whether it meant only the collection of the waters in the river, stream, channel or tank. I think Clause (b) of Section 1 of that Act which speaks of water from any such river, stream, channel or tank,' clearly indicates that the words 'river, stream, etc.,' are used in the sense of the collective body of waters which are called river, stream, channel, or tank according to the respective configurations of the receptacles. The judgment in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 also takes the above view.
(A.6). The question whether, in a case where the irrigating waters, though flowing over or standing on zemindari or inam land, have been assisted in their beneficent work of irrigation by a work belonging to or constructed by Government' (see the preamble and Section 1(a) of Act VII of 1865), the Government can impose water-cess does not arise in this case (while it arose, though only very partially, in the Urlam case, as pointed out in the judgment under appeal). The finding of the District Judge in this case (not disputed before us) is that no such work has been constructed by Government in connection with the Mobagam Channel, or with the branch channel, till it leaves the inamdars limits.
(A.7). Lastly, on the view I take of the facts of this case, it is also unnecessary to decide on the meaning of the word 'supplied' in the first proviso to Section 1, Clause (b), of Act VII of 1865. I might, however, say that I do not agree with the interpretation of that word given in Venkatappayya v. Collector of Kistna 12 M.K 407 and Krishnayya v. Secretary of State 19 M.K 24 namely, that the word 'supplied,' when used in connection with water-supply, implies a previous request by the owner of the land which is supplied with water. As far as water-supply is concerned, rivers, streams, channels and tanks are usually spoken of as supplying fields irrigated under them with water for such irrigation and the idea of a request to the source of supply is inadmissible in such cases. The argument based on the Legislature not having, in the Amendment Act of 1900, changed the word 'supplied,' judicially interpreted as above in Venkatappayya v. Collector of Kistna 12 M.K 407 and Krishnayya v. Secretary of State 19 M.K 24 does not convince me that the Legislature adopted that interpretation, as those cases related to water supplied to ryotwari lands and the amendment of 1900 fully established the rights of Government to levy assessment in respect of water even involuntarily supplied to such ryotwari lands. One other question may be shortly considered here. Assuming that the beds of streams and rivers, flowing between banks, both of which belong to a zemindar or an inamdar, are the property of the zemindar or inamdar and assuming that the waters standing on or flowing over such beds within the limits of the zemindari belong to the zemindar or the inamdar (subject, of course, to the rights of lower riparian ryot in natural rivers and streams, and subject to the ownership over those waters ceasing to exist in the proprietor; on the waters leaving such limits by evaporation or by flowing away) the question is whether, when one of the banks alone of a stream or river belongs to a zemindar or an inamdar, he is entitled to half the bed of the river or stream on his side. The rule of English Law no doubt is that such half along the length bounded on that one side by the riparian owner's land belongs to that riparian owner, provided of course the river is not a tidal or navigable river. But is that also the Indian Law in all cases P In the case in Mukkassa Nair Veettil v. Secretary of State for India (1914) M.W.N. 521. I ventured to express an opinion that the Indian Common Law did not recognise this alleged right of the owner of the land in ryotwari tracts or in Malabar which are not under the Permanent Settlement to half the breadth of a highway, or to half the breadth of the bed of a river adjoining such land. I am still inclined to hold that the historical incidents and peculiar feudal tenures connected with English real property law (which was probably further affected by notions derived from the Roman Law) may have had much to do with the establishment of the doctrine that the soil of highways and of the beds of natural waterways belong in equal half-breadths to the owners on both sides. I think that the Indian Common Law vested such rights in the village community as a whole within the village limits and in the Sovereign power as representing the community in other places. However, I think it is too late to question the applicability of this English Law so far as the beds of non-tidal and non-navigable rivers and streems bounded by zemindari and whole, inam lands are concerned as the case-law has established such rights in favour of the zemindar and inamdar.
29. Mr. Rangachariar, if I understood him aright, would not admit the right of the Government even to beds of rivers bounded by ryotwari' lands on both sides. I can only say that I have never in my pretty long experience come across any case in which a ryotwari tenant-owner under Government has ever disputed the right of Government to dispose of islands thrown upon the bed of the river bounding his land, or to make reclamations by planting with reeds (nanal) or otherwise from the bed of the river close to its banks and to grant such reclamations to anybody they like, Ryotwari lands stand on an entirely different footing from zemindari and inam lands, as Government has not lost proprietary rights over ryotwari lands. That ryotwari land continues 'to be Government land', while land in a permanently settled estate is not Government land is further indicated by the definition of 'Government land' in the Madras Survey and Boundaries Act, IV of 1897, Section 3(ii), which says that 'Government land means any land not forming an estate or any portion thereof', while clause (i) defines the word 'Estate' as zemindari, jagir, mitta, palayam, inam village, etc. Thus the Government treats itself as owner of its ryotwari tenants' lands while it treats the zemindar and inamdar as owner of the lands in permanently settled, estates. A jenmi holding lands in Malabar (whore also there is no Permanent Settlement) is placed on the same footing as a person holding under ryotwari tenure in Clause 2(1)(a) of Act III of 1905. In ryotwari tracts river-bed porambokes and even small channel porambokes (though running through pattah lands) are entered as Government property in public Revenue Records. Gradual and imperceptible accretions to ryotwari tenants' holdings from adjoining porambokes are prevented by placing demarcation stones round patta, lands. The Government still treats itself as the proprietor of the ryotwari lands, whereas in Zemindari tracts, the zemindar is the proprietor, taking the place of Government so far as proprietary rights are concerned, Government having, as admitted in page 300 of the judgment in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 : 8 M.L.T. 389 not, reserved to themselves the beds of channels or tank-beds or the village sites or other poramboke lands within the zemindari limits.
30. As regards river-beds, however, bounded by zemindari lands on one side, the Godavari Lanka case decided so long ago as in 1858 (see Sudder Adawlat Decisions of 1858, page 188) has established the right of the zemindar to the soil of the bed of the river up to half its breadth on his side. Further, in my opinion, the learned Advocate-General's argument contra cannot be accepted in this case in view of the admission in the written statement, paragraph 3, which says that the portion of the bed of the Vamsa-dhara river where the Mobagam Channel takes off is within the limits of the permanently settled estate of Urlam. I might further add that the zemindar's right to half the bed of the Vamsadhara river along the length bounded by the Urlam zemindari is taken as undisputed by the learned District Judge, Mr. Ayling (now Justice Sir William Ayling, one of the Judges of this Court), and his finding was not attacked in the memorandum of appeal filed in this Court. I might also state that in the written statement, the Government's right to levy assessment for the waters used by the inamdars (plaintiffs) for irrigating their lands was based on the specific ground that the irrigating Mobagam Channel and the branch Merakabatte Channel belonged to and were under the control of the Government. (See paragraphs 3, 4 and 5 of the written statement.) The learned District Judge found that these channels did not belong to Government, that the soil of the beds of these channels (at the point where the branch channel leaves the inam limits) had been granted to the Urlam zemindar about 1803 under the permanent sanad fixing his zemindari limits and that the channels were never under the control of the Government. This finding of the learned District Judge is accepted by Sir Sankaran Nair, J., and not dissented from by Sir Leslie Miller, J., and, on the evidence, I am clear that that finding is correct. [See also the plan, Exhibit J, prepared by the Revenue Survey Department in 1871, which demarcates half the river-bed (including the site of the take off of the Mobagam channel) as belonging to the zemindari village.]
31. Having thus cleared the ground, the only remaining question in this case might, in my opinion, be formulated thus:
Do the waters flowing in the Vamsadhara river at the length and over that portion of the bed, which bounds the Urlam zemindari, and from which bed the Mobagam Channel takes off, belong to Government within the meaning of the expression water from river belonging to Government found in Section 1 of Madras Act VII of 1865?' There can be no doubt that the Government start with a strong presumption in their favour under Madras Act III of 1905, that all standing and flowing waters belong to them, but it is a rebuttable presumption. Though this suit was brought before Madras Act III of 1905 was enacted, and though the Government in their written statement relied upon the ownership of the Mobagam Channel-bed and the control over the waters in that channel as the foundation of their claim to treat the waters flowing into that channel from the Vamsadhara river as their property, I cannot say that they are estopped from claiming proprietorship in those waters under the general presumption in their favour raised by Act III of 1905 passed during the pendency of this suit. The provision of that Act raising such a presumption in favour of the Government cannot, strictly speaking, be said to take away any rights vested in persons who had claims over standing and flowing waters. Rules of evidence enacted by the Legislature come into force at once and must be followed by the Courts in deciding on the rights of parties, whatever may have been the previous state of the law in regard to the proper presumptions and burdens of proof under particular circumstances.
32. Taking it, then, that the plaintiffs in this case have to prove that the waters of the Vamsadhara river at the particular place where the Mobagam channel takes off do not belong to Government, the question is, has that burden of proof been discharged in this case? If I understand the judgment in Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 : (1910) M.W.N. 595 : 8 M.L.T. 389 rightly, the opinion there expressed is that, even though the bed of the river may be vested in the owner of the land situated along the banks so as to give him the right to accretions or lankas forming therein (as has been decided in the Godavari Lanka case), and though the bed of the river itself may belong to that adjacent owner, still the collection of waters flowing over the bed can never in any sense belong to that owner and can only belong to Government. The judgment says, for instance, at page 303:
The river, it seems to me, belongs to Government even though the bed may be vested in the owners of the land along the banks.
33. It is said further on in the judgment:
Now clearly the waters of the Vamsadhara river do not belong to any one else but the Government. The owners of the land at the banks of the river do not own the water.
34. Thus, if I understand the decision aright, all flowing and standing waters, though flowing over beds belonging to others, or standing on tank beds belonging to others, are the property of Government. In this connection, I wish to point out that not only 'all standing and flowing waters' wherever situate are and are declared to be the property of Government, but the words just coming after 'all flowing and standing waters' in Section 2(1) of Act III of 1905 are all lands wherever situated.' Thus as regards all lands also wherever situate, the presumption is created by that section that they belong to Government unless proved to belong to zemindars, inamdars, etc. As regards standing water in tanks, can it be reasonably argued that the ownership of the tank bed has nothing to do with the ownership of the water standing on it? Can it be said that, even though rain water fills the tank, standing waters are the property of Government though the tank bed may not be the property of Government? It will be seen further that Section 2, Clause 1, reserves all right of way and other public rights, all the natural and easement rights of other landowners and all customary rights legally subsisting. Thus all standing and flowing water is not made the absolute property of Government even, when it is not proved to belong to the zemindars or poligars or inamdars or ryots. That is, 'plenary' rights are not declared in standing or flowing water in favour of Government. The section again assumes that zemindars, poligars, inamdars, etc., can have the same kind of 'property' or ownership in standing and flowing water as Government is declared to possess. The judgment in Kandukuri Mahalakshamamma Garu v. Secretary of State for India 8 Ind. Cas. 67 says that it was not contended by the Vakils for the appellants in that case that the water was their property (see page 303). I do not know what precise admissions were made in that case. That flowing water by its very nature can never be the absolute property of the Government or anybody else (though the ownership in a very real sense can be predicated of it as vesting in a person so long as the water continues to be situated vertically over land belonging to that person) is clear to my mind; and when Section 2(1) says that all standing and flowing waters are hereby declared to be the property of Government (except as may be otherwise provided for be any law for the time being in force, subject always to all public rights and natural and easement rights of other land-owners and to all customary rights), it seems to me that the Legislature did not intend to give to the Government greater rights of ownership in flowing water than the principles of general jurisprudence would allow. It has been held in this Court that the Government cannot divert water even against the customary rights of their own ryotwari tenants (though the water flow over beds of rivers belonging to Government) without providing other equally effective facilities for irrigation. When water flows in a river over the bed-portion belonging to one owner, that water is temporarily and usufructuarily his property (subject to well-known natural rights of others). As soon as it leaves that portion of the bed and begins to flow, over another bed-portion belonging to another owner, the Water becomes the property of the owner of that bed-portion, subject again to the same rights. So, as all land also are presumably declared to belong to Goverment, water flowing over any lands in presumably the 'property' of Government, the 'property' in the water following the 'property' in the land. I can find nothing in Section 2 of the Madras Act III of 1905 which was intended to give the Government greater rights over water standing or flowing vertically over their land than any other proprietor of land like a zemindar or namdar has over water standing or flowing over his. The distribution of water among their own ryotwari tenants see Chief Justice Scotland's judgment in Ponnusawmi Tevar v. Collector of Madura 5 M.H.C.R. 6 is no doubt a right which the Government exercise as sovereign landlord; but after they had parted with proprietary rights over the beds of particular streams in favour of zemindars or inamdars, it is impossible, in my opinion, to hold that they retain proprietary rights over water standing in tanks in zemindaris, or flowing through zemindari lands, or in water flowing in all natural channels, or through artificial channels constructed with the knowledge and permission of Government and owned by the zemindar or inamdar, or in water percolating into zemindari and inam tracts and such a claim was clearly negatived in the case of Ponnusawmi Tevar v. Collector of Madura 5 M.H.C.R. 6. The Mobagam Channel itself is an artificial channel belonging to the Urlam Zemindar (the channel at its tail end feeding the Mobagam Tank belonging to that Zemindar). If Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 : (1910) M.W.N. 595 has been uniformly followed from which it was decided in September 1910, I ought not, of course, to lightly differ from it. The only case in which it was so followed seems to be the case of Secretary of State for India v. Ambalavana Pandara Sannadhi (1911) M.W.N. 119 But, as pointed out in the judgment under appeal, there is a later decision of Benson and Sundara Aiyar, JJ., added to the report of the decision of the Division Bench on the present case reported as Secretary of State v. Kannepalli Janakiramayya 18 Ind. Cas. 770 this later decision being found in Secretary of State v. Kannapalli Vencataratnammah 15 Ind. Cas. 594 as a footnote case to the present case. The learned Judges, Benson and Sundara Aiyar, JJ., say at page 368:
The channel was not one which passed through any Government property before it reached the village of Lakkinidi. It is apparently not a large stream connected with any system of irrigation maintained by Government.... There was no intention on the part of the Government at any time to derogate from the grant made in 1767. Both of the learned District Judges who dealt with the case proceeded on the footing that the channel and other poramboke in the village belonged to the inamdar. On the whole, we see no reason to dissent from that conclusion. It has, therefore, not been proved that the water irrigating the village belongs to Government.
35. The learned Judges, therefore, clearly-held that when flowing water passes over a river or channel-bed which does not belong' to Government, the water cannot be said to be the property of Government while it is so flowing over that bed. Of course, it may be said that the learned Judges did not refer to the decision of Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 The case, however, of Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 could not have been absent from the mind of at least one of the Judges (namely Mr. Justice Sundara Aiyar) who decided the footnote case reported as Rama Das v. Hanumantha Row 12 Ind. Cas. 449 for it was Mr. Justice Sundara Aiyar (though he was not a Government Law Officer) whoso well-known strenuous and powerful advocacy had been evidently specially secured by the Government for the conduct of the appeals in these Urlam cases in the High Court. If Mr. Justice Sundara Aiyar expresses an opinion as a Judge opposed to the opinion for which he argued at the Bar, such an opinion of his as Judge carries by that fact much more weight, and his non reference to the decision of Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67 from which he clearly differed in Secretary of State v. Kannapalli Vencataratnammah 15 Ind. Cas. 594 is not difficult to understand under those circumstances.
36. There are two well-known legal maxims which usually come to mind in such cases. One is aqua currit et debet currere ut currere, solebat, which signifies that water flows and ought to flow as it used to flow. Grounding on this maxim, it is usually stated that there is no property in running water, but merely a right to use it, and this right may only be exercised so as not to interfere with the use of the water by other persons similarly entitled. But the right to use it can itself be called a property in running water, and (as I have said already) it is not wise to confuse ourselves by juggling with the word 'property' or the word 'owner.'
37. The other maxim is cujus est solum etc., meaning that whoever is the owner of the soil, it is his even to the firmament and to the middle of the earth. This maxim is the basis of the rule that waters in ponds and wells situated on land owned by a person belong to him in a very real sense, and that on the flowing waters also running over his land he has got a real right of property, though of a qualified kind. Section 2 of Madras Act III of 1905, though it talks of property in waters both in the Government and in the zemindar or inamdar, contains (as I said) several clauses qualifying such right of property. I am reasonably clear that the maxim aqua currit, etc., was not intended to be abrogated in favour of Government. That it was not so intended in the case of a zemindar or inamdar is not disputed and the language of the section does not to my mind I constrain us to hold otherwise in the case of water flowing over even Government lands. On the other hand, how else is a zemindar or inamdar to prove his 'property' in 'standing or flowing water' except by proving his 'property' in the land situated over or under such water, it being clear from the Section 2(i)(a) itself that such 'property' can exist in him? See Narasimha Sastrial v. Secretary of State 1 M.L.J. 167.
38. There is, no doubt, a distinction in the extent of the proprietary or ownership rights of a man in water over his soil according as the water is standing water (as in a tank), or water naturally flowing as a river (though the waters cannot be said to belong to anybody else so long as the waters are still vertically over his soil).
39. But I find it very difficult to hold that there is another distinction between (a) the ownership rights of a man in the waters over the soil owned by him, without liability on his part to be taxed by Government for exercising the right of use of such waters springing from such ownership, and (b) the ownership of such waters with the right of user springing from such ownership being subject to the liability to be taxed by Government. I am unable to find that any such new distinction between the extents of rights in waters has been created by Act. VII of 1865 or Act. III of 1905. The former Act refers to a body of waters belonging to Government, and the latter enacts that all waters and lands prima facie belong to Government and that other claimants of rights of ownership in any such waters or lands have to prove their rights as against Government. The former Act gives a right to the Government to tax waters belonging to Government and used in the irrigation of the lands of persons not owning the right in the said waters. A new intermediate class of ownership in waters, in which the soil proprietor has all the ordinary and natural rights to use the water which is his 'property' but with liability to pay assessment to Government (though the Government cannot be said to own the waters as they do not own the soil under the waters), seems to me to be not contemplated by either Act, and no such distinction seems to have been made before Kandukuri Mahalakshmamma Garu v. Secretary of State for India 8 Ind. Cas. 67. On the other hand, it was assumed, as a matter of course, in almost all the cases dealing with this question that if the zemindar or inamdar owns the right to use the waters unlimitedly (excepting, of course, the natural right of lower riparian owner) within his bed without. interference from Government, he is entitled to use them free of assessment and he is entitled even to a refund of the assessment collected from him by the Government on the wrongful claim made by the Government that the irrigating waters belong to them. If a man has the ordinary juridical ownership over waters standing on or flowing over his land (the extent of his right being governed by the well-known rules relating to standing waters, flowing waters, upper and lower riparian rights, etc.), he must also be free from assessment by Government for the use of such waters belonging to him, as the Government can have no ownership at all in such waters till they leave his soil. A new ownership in waters in the Government entitling them to impose assessment for the use thereof, though they have no ownership therein according to ordinary juristic principles, is again difficult for me to grasp and I am not satisfied that any such new kind of ownership was created by either of the two Acts.
40. I am aware that by the amendment of 1900 to Madras Act VII of 1865 it has been enacted that when water from a river belonging to Government by direct or indirect flow or percolation or drainage irrigates any land under cultivation, the Government is entitled to levy a separate cess for such water. In the case of rivers running over Government poramboke, the water is the property of Government and if it irrigates a ryotwari tenant's land by percolation, it continues even after entering the tenant's holding, as I said, to be Government water, as the tenant's land also belongs in proprietary right to Government and is called Government land in the Survey and Boundaries Act. These considerations do not apply to water flowing over or percolating into zemindari or inam lands and no cess can, therefore, be levied under Act VII of 1865 for use of that water, excepting probably in case of the water having been made available for beneficial irrigation through works belonging to or constructed by Government.
41. In the result, I would dismiss this Letters Patent Appeal with costs.
42. The principal question in this appeal is whether the Vamsadhara river, at the place where the Mobagam Channel takes off water which flows to and irrigates the plaintiffs' land, is a river or stream belonging to Government within the meaning of Madras Act VII of 1865.
43. A river cannot be the exclusive property of any person unless it flows throughout its whole course within his land, since, if another person has a right of access to it, he obtains certain rights of appropriating water from the stream and of preventing other persons from interfering with his rights, even though he has no right of ownership over the land whereon the river flows. See Lyon v. Fishmongers' Company (1876) 1 A.C. 662. It cannot have been the intention of the Legislature to deal only with exceptional cases of this kind, and I think that this Act may be construed as applying to such cases of limited property as arise from ownership of the river-bed. I think that the English authorities show, that the owner of the river-bed has a qualified ownership in the stream of water which flows over it, by virtue of which the river and stream may be said to belong to him.
44. It is admitted on behalf of the respondents that' at the beginning of last century the British Government were the owners of the river-bed and of the Urlam zemindari which abuts thereon, and through which the Mobagam Channel conveys water to the plaintiffs' land. It is also admitted by both parties that at about that time the Government issued a sanad of this zemindari in common form, and it is argued on behalf of the plaintiffs that this sanad constitutes a grant of the full ownership of the land comprised in the zemindari, subject to the rights of tenants, and that this grant must be construed in the same manner as a grant of land under English Law and accordingly includes either the whole of the river-bed and the bank adjacent to the zemindari, or at least the river-bed ad mediam filum aquae. The common form of sanad under the Permanent Settlement is not in form a grant of property: it contains no parcels, no dimensions, no boundaries or abuttals, and does not follow any precedent known to a British lawyer, but it is to a great extent a literal copy of the preamble and provisions of Regulation XXV of 1802 and differs from it principally in specifying the amount of the assessment to be paid by the zemindar. Paragraph 13 states that 'The foregoing conditions contain an abstract of the obligations and duties which you shall incur and of the rights which you have acquired under the new constitution erected for the security, protection and prosperity of the subjects of the British Government;' and the sanad concludes, after an exhortation to good conduct, with a declaration that the grantee is 'Hereby authorised and empowered to hold in perpetuity to your heirs, successors and assigns at the permanent assessment herein named, the zemindari of....'
45. The sanad also contains a direction to the grantee to keep accounts, and for that purpose to maintain the village karnams or accountants, and to enter into agreements with the ryots. Both the sanad and the Regulation already mentioned contain the expressions a permanent property, in their land for all time to come,' and 'the proprietary right of the soil', but the words proprietors of land' and 'proprietary possession' have a technical signification in the Regulations, and 'proprietary possession' have been explained by their Lordships of the Privy Council to mean 'the possession and rights of a proprietor in the technical sense in which that word is used, viz., the person who pays the rent immediately to Government' Oolagappa Chetty v. Arbuthnot 1 L.A. 268.
46. In Regulation IV of 1822 the Government found it necessary to declare that the provisions of previous Regulations, including XXV of 1802, were not meant to define, limit, infringe, or destroy the actual rights of any description of landholders of tenants, and that tenants' rights should be determined by the Courts. I think that these Regulations and the form of sanad show that it was not intended to create any rights of property or to make a grant of a particular estate in land, but rather to invest a certain person with the position or status of zemindar of a particular zemindari, to make that position permanent, transferable and inheritable, and to fix the land tax or share of produce payable by the zemindar or his assigns to the Government. Upon this construction the rights of the zemindar are such as were appurtenant to the zemindari at the date of the sanad and, I think, that the burden is upon him to show that his rights extended beyond the natural boundaries of the zemindari. Doubtless the zemindar and his ryots would continue to exercise all rights, naturally and openly enjoyed by them at the date of the grant; thus not only would the riparian villages be entitled to take water from the river, but the cultivators on an artificial channel in existence at that date, such as the Mobagam Channel, would also be entitled to take as much water therefrom as would pass thereby and as the terms of their holding allowed. Any other construction would be contrary to the intention of the Government, that the lands within the zemindari should be profitably cultivated and that the zemindar should obtain his proper share of the produce and be able to pay his assessment to the Government, and would be in derogation from the grant.
44. The riparian villagers may have made some use of the river-bed and banks, but there is no eviderce that any proprietary rights over them or the stream of water were exercised by these villagers or the zemindars at the date of the sanad, and in my opinion the burden is upon those who assert that any such rights passed under the sanad to prove that they were appurtenant to the zemindari and enjoyed therewith.
48. It is I think, obvious that decisions relating to the construction of English conveyances of land, which assume conditions and presumptions different from those prevailing in India, are wholly inapplicable to a sanad under the Permanent Settlement. Even if those decisions apply, the sanad can only be construed as granting the river-bed usque ad medium filum aquse and the stream of water flowing thereon; and since the other moiety of the river has not been shown to have been transferred by Government it must be taken to be a river or stream of water belonging to Government.
49. In the natural course of things part of the latter stream must cross the moiety of the river-bed assumed to belong to the zemindar and flow down the Mobagam Channel, and part of the water which reaches the respondents land comes by direct or indirect flow from a river or stream belonging to Government from or through adjoining land, and is, therefore, chargeable [Act VII of 1865, Section 1(b)].
50. The learned Judge from whose judgment this appeal is brought based his decision upon the ground that the sanad was a grant of all rights vested in the Sovereign in respect of the zemindari and its appurtenances, except such as were expressly reserved thereby. Regulation XXV of 1802 and the common form of sanad issued there under no doubt recognise that the zemindars had formerly exercised certain sovereign rights over the territories under their control, and I think they show the intention of British Government to curtail those rights. Even assuming that the zemindars as petty chieftains exercised some form of sovereignty, it has not been shown that it assumed the form known in the West. As Sir H.S. Maine has pointed out, the idea of the Sovereign as proprietor was derived by the European jurists from Roman Law (see Ancient Law, 10th Edition, page 104 et seq; International Law, page 55); and the idea of sovereignty in India, more especially among such subordinate rulers as the zemindars, was most probably that of a tax-gathering Empire.
51. The ryots grouped in villages were the possessors and cultivators of the soil under immemorial custom, and the right of the zemindar was probably to extract as much of the produce of the soil as he could from them and from the tenants whom he planted upon the cultivable waste. Paragraph 13 of the sanad, which reserves full legislative powers to the British Government, introduces the European idea of 'eminent domain' over the property of the members of the community, under which the Sovereign claims the power of disposing of everything contained within its territory for the general good, and seems to me to negative any intention to transfer 'sovereign rights.' See Hall, International Law, 6th Edition, page 45). There is no evidence that the zemindar in this particular case ever exercised any proprietary rights over the Vamsadhara river, or that as ruler he considered himself to possess such rights, and the sanad itself contains no provision whatever with reference thereto.
52. I am of opinion that the plaintiffs have failed to prove that the Vamsadhara river is part of the Urlam zemindari, and that from their own admission as to the property in the river at the date of the sanad as well as from the general presumption as to the rights appurtenant to the zemindari, and the special presumption now raised by Madras Act III of 1905, the river must be held to belong to Government, subject to the ordinary riparian rights and to the special right of taking water through the Mobagam Channel arising from its existence at the date of the sanad. I agree with Oldfield, J., that the general terms of Act VII of 1865 are not limited by the preamble. The plaintiffs' land is irrigated by water from a Government river, and I think that the burden is upon them to prove an 'engagement' which entitles them to irrigation free of charge [Madras Act VII of 1865, Section 1(b)]. Such an engagement appears in the common form issued upon the Inam Settlement, which states the number of wet and dry acres claimed by the inamdar. It appears from the plaint that the original grant under which plaintiffs hold specified the number of wet and dry acres, and that since the Settlement six acres of the dry lands have been converted into wet, but it is not averred by what right or at what date this conversion was effected. It appears to me that the object of specifying in the original grant and at the Inam Settlement the number of wet acres was to declare the extent of the grantee's rights of irrigation; that is, he was to be allowed to take only sufficient water to irrigate the number of acres described as wet.
53. The claim, to irrigate for a second crop is in effect a claim to take water for double the number of acres specified in his grant, and I think that in order to substantiate the claim he should aver and prove his title.
54. I agree with the order proposed by my learned brother Oldfield, J.
55. The result is that the appeal succeeds and the plaintiffs' suit is dismissed with costs througout.