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Kandalam Rajagopalacharyulu and ors. Vs. the Secretary of State for India in Council and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1914Mad174; (1915)ILR38Mad997
AppellantKandalam Rajagopalacharyulu and ors.
RespondentThe Secretary of State for India in Council and ors.
Cases ReferredVenkata Rangayya Appa Rao v. Secretary of State
Excerpt:
madras irrigation cess act (vii of 1865), section 1 - engagements' construction of--undertaking by government to supply water for wet lands free of charge--engagements at the time of the permanent settlement--subsequent engagements, express or implied, if included under the section--unauthorised acts of subordinate officers, how for binding on government--ratification, essentials of--communication of, to the other party, if necessary--when complete--government orders, how far ratifications--indian contract act (ix of 1872), sections 196 to 200 and 3 to 6. - - ' it is not a very happy phrase, but i can only understand it as meaning' land entitled to be irrigated with government water without charge. government water without charge was enjoyed by lands which wore brought under wet.....ayling, j.1. the suits out of which these second appeals arise are all of a similar character. they are brought by various proprietors of land under the godavari anicut system for a declaration of their right to irrigate their lands with anicut water free of water rate, for an injunction restraining government from levying water rate under act vii of 1865, and, except in second appeal no. 1774 of 1911, for a refund of the amounts collected.2. the substantial question involved in each is the extent to which government is bound to allow the irrigation free of water rate. it is not denied that the water used is government water; the only question is whether government is bound by an 'engagement' within the meaning of section 1 of act vii of 1865 to allow the irrigation free of charge,3. some.....
Judgment:

Ayling, J.

1. The suits out of which these Second Appeals arise are all of a similar character. They are brought by various proprietors of land under the Godavari anicut system for a declaration of their right to irrigate their lands with anicut water free of water rate, for an injunction restraining Government from levying water rate under Act VII of 1865, and, except in Second Appeal No. 1774 of 1911, for a refund of the amounts collected.

2. The substantial question involved in each is the extent to which Government is bound to allow the irrigation free of water rate. It is not denied that the water used is Government water; the only question is whether Government is bound by an 'engagement' within the meaning of Section 1 of Act VII of 1865 to allow the irrigation free of charge,

3. Some of the suits deal with mokhasa villages, others with minor inams, and such may conveniently be treated separately.

4. Second Appeals Nos. 1398 to 1401 and 1770 and 1774 of 1911 all arise out of suits relating to mokhasa villages, all in the Ellamanchili Zamindari with the exception of one (that resulting in Second Appeal No. 1898 of 1911) which relates to a village in the Nidadavole Zamindari. These suits will be considered first.

5. All these suits are laid on the basis of an alleged engagement with Government embodied in an order of Government (G.O. No. 101, Revenue, dated the 16th January 1864) to the effect that Government water would be supplied free of charge to all these lands, whose pre-existing sources of irrigation were out off by the anicut works. This general engagement, or undertaking, on the part of Government is said to have been subsequently given practical effect by the proceedings of a Deputy Collector named Subba Rao who in 1876 determined the actual extents to be allowed rate free in each case, and the proceedings of Mr. Subba Rao are said to have been ratified by Government in its Order No. 661, Revenue, dated the 13th September 1894.

6. Government denies both the alleged engagement and the ratification.

7. The first point for determination is as to the meaning of the word 'engagement' in Section 3 of Act VII of 1865. It has been repeatedly held, and is not now disputed, that in all cases of permanently-settled estates where the income derivable from wet lands has been taken into consideration in settling the peshkash payable to Government, there is an implied undertaking of the nature of an enforceable contract on the part of Government to allow the use of Government water to such wet lands without charge; and that this implied undertaking amounts to an engagement within the meaning of the Act. There is a similar implied engagement as regards enfranchised inams. If I understand the learned Government Pleader aright, he contends that these undertakings deducible from the circumstances under which the peshkash (or quit-rent in the case of an inam) was determined arc the only engagements contemplated by, or within the moaning of, the Act. I can find nothing in the Act tending however remotely to justify such a narrow construction. The word 'engagements' is not qualified in any way, as it would have been, had it been intended to limit it to the cases just referred to. An imaginary case may be taken: suppose that Government bar), prior to the Act, constructed a channel through a Zamindar's land for the benefit of Government lands on the understanding that, in consideration of the Zamindar allowing the use of the ground through which the channel was dug, he should be allowed to irrigate his own lands from it, free of charge; can it be contended that such an agreement could not be pleaded under the Act as a bar to the subsequent imposition of water-rate or would it not rightly be held to be an 'engagement' within the meaning of Section 1?

8. I am content to rest my decision on the plain wording of the Act, and do not propose to follow in detail the arguments of the learned Government Pleader and vakils for the appellants based on previous rulings of this Court or on various Government Orders and other official documents written shortly before the passing of the Act., and referred to as showing the probable intention of Government. As regards the former, it is true that the earlier cases [Chidambara Row v. The Secretary of State for India in Council I.L.R., (1903) Mad., 66, Lutchmee, Doss v. Secretary of State for India I.L.R., 32 Mad., 456 and Secretary of State for India v. Ambalavana Pandarasannadhi I.L.R., (1911) Mad., 366, only deal with what I may call permanent Battlement engagements; but they contain nothing suggesting the exclusion of other engagements. In Kandukuri Mahalakshmamma Gam v. The Secretary of State for India I.L.R., (1911) Mad., 295 (Urlam case), the learned Judges discuss the evidence of another engagement, though they find it not proved; and in two other cases, Secretary of State v. Kameshwaramma (1904) App No. 182 to 184 and Sri Raja Venhatarangayya v. The Secretary of State for India (1913) M.W.N., 417, they find a similar engagement to that now set up as coming within the scope of the section. The most recent case, Kesari Venkatasubbiah v. The Secretary of State for India (1913) 14 M.L.T., 131 is also a distinct authority in support of my view.

9. In the last named case one of the learned Judges has to some extent based his conclusions on a consideration of antecedent official correspondence. Before us much argument has been devoted to this line of reasoning, and the Government Pleader was permitted to file some fresh exhibits in the shape of Government Orders and Board's Proceedings connected with the documents considered in that case, but not referred to in the judgment. The admission of these documents was allowed on the understanding that they were to be referred ho only as bearing on the interpretation of the term 'engagement.' I do not propose to discuss any of these documents or their effect, inasmuch as, with all deference, 1 doubt whether it is either necessary or advisable to interpret the plain wards of the Act in the light of expressions of the views of Government before its enactment - -vide Administrator-General of Bengal v. Premlal Mullick I.L.R., (1895) Calc., 788, Kadir Bakhsh v. Bhavani Prasad I.L.R. (1892) All., 145 judgment of Edge, C.J.,-and Queen-Empress v. Bal Gangadhar Tilak I.L.R., (1808) Bom., 118. I may remark that, if debates in the legislature should not be referred to, it seems still less legitimate to refer to expressions of the antecedent views of Government, which may have been modified during the passage of a Bill through the legislature, 1. may also refer to the remarks of Lord Halsbury in Milder v. Dexter (1902) A.C., 474.

10. Assuming, then, that an engagement of the kind alleged by the appellants would be an engagement within the meaning of the Act, has such an engagement been proved? It is, of course, entirely distinct from, and independent of, the engagement deducible from the condition of permanent settlement and inam grants, to which reference has been made and which in admitted by Government. The District Judge haw held that it has not been proved; and, although his finding, based chiefly on the interpretation of documents, in open to question in this Court, I am of opinion that he is right. The plaint in the suit ending in Second Appeal No. 1398 of 1911 (with which the other plaints are identical or practically so) sets out the engagement as follows:

That prior to the introduction of the anicut system of irrigation into the Godavari delta the mokhasa village of China Nindrakolanu had a wet ayakut of katties 24 watered under old and independent sources of irrigation. The introduction of the anicut system interfered with these sources of irrigation and rendered then useless for irrigation purposes; Government were therefore bound to compensate the mokhasadars (plaintiff's predecessors-in-title) for the loss either in money or otherwise and to cover up all such cases. Government in its Order No. 101, Revenue, dated the 16th January 1864, declared that Government water would be supplied free of charge to all those lands whose pre-existing sources of irrigation wore cut off by the anicut works. Agreeably with the said declaration of Government and tinder the orders of his departmental superiors M.R. Ry. Subba Rao Pantulu Garu, then in charge of the division, recognised on 17th July 1876, acres 54686 as mamool wet, i.e., as land entitled to Government water free of charge, fixing the old wet ayacut at katties 22-6 and converting it into acres at the average conversion rate of acres 24'53 per katti. Though full justice was not done to the mokhasadare (plaintiffs and their ancestors) they submitted to the above settlement and it has now been in force for nearly 30 years having been ratified by the Board and Government, There is thus an engagement between the plaintiffs and the defendant in regard to the extent of mamool wet in China Nindrakolanu and it is not now open to the defendant to go behind it and re-open the question.

11. A copy of G. 0. No. 101, Revenue, dated 16th January 1864, is filed as Exhibit XXIV in Original Suit No. 24 of 1905 (Second Appeal No. 1400 of 1911); and as this is alleged to contain the 'engagement,' it obviously calls for very careful consideration, The Government Order was passed on a letter from the Board of Revenue which was not tiled in the lower Courts. A copy was tiled and exhibited before us, but subject to the conditions that it was only to be used, as already stated, in connection with the interpretation of the word 'engagement' in the Act. Fortunately, however, the purport of the Board's letter is set forth vary fully in the Government Order itself. It apparently dealt with two subjects:

(1) the submission of a draft Act for levy of water-cuss.

(2) a proposal to modify the rules previously in force in Godavari and Kistna for the levy of water-cess.

12. We are only concerned with the second of these which is dealt with in paragraphs 7 to 12 of the Government Order as follows:

13. [His Lordship then set out, the Government Order (vide pp. 999-1000 supra) and proceeded as follows:]

14. The decision of Government is set forth in paragraph 12 to confine the concession to 'land whether inam or zamindari shown to be entitled to irrigation at the cost of Government.' It is not a very happy phrase, but I can only understand it as meaning' land entitled to be irrigated with Government water without charge.' It cannot be contended that a right to the use of. Government water without charge was enjoyed by lands which wore brought under wet cultivation between the time of Permanent Settlement and the introduction of the anicut system; and the reference to an 'engagement to supply water' in the last sentences of the paragraph cannot have referred to such lands.

15. It is, of course, in the order of Government and not in the proposals of the Board that the alleged 'engagement' must be sought, and it is to be noted that Government do not accept the Board's proposal as quoted verbatim in paragraph 10; but formulate the terms of the concession themselves.

16. I can find nothing in the Government Order relied on by the appellants more than a resolution to abandon the charge of half water-rate on wet lands so cultivated at the time of Permanent Settlement or inam grant on the ground that the charge was arbitrary, impolitic and an infringement of rights acquired at the Permanent Settlement, or under the terms of the inam grant, This is a totally different thing from the engagement pleaded in the plaint.

17. It is true that, as appears from various exhibits, in later years some misapprehension prevailed as to the reasons which influenced Government in passing its Order of the 16th January 1864, as well as the exact definition of the concession. The Board in drafting rules (which were duly approved by Government) followed the wording of their original proposal, as set forth in paragraph 10 of the Government Order: and this naturally led to some confusion. But I may refer to Exhibit XXIX in Original Suit No. 24 of 1905 (Second Appeal No. 1400 of 1911), from which it will he quite clear that in 1888 both the Board and Government entertained no doubt that the concession allowed by Government in 1864 was limited to the 'Gudikat wet area,' that is, the area entered as wet in the Permanent Settlement accounts. It is unnecessary to discuss these later documents in detail, inasmuch as it is not suggested that any of thorn constitute an addition to the 'engagement' which has to be found within the tour corners of G.O. No. 101, Revenue, dated the 16th January 1864. As a matter of fact, the question of whether the wet area at the time of Permanent Settlement or at any later time before the introduction of the anicut system should be adopted as the teat was never viewed as a matter of any practical importance, probably for the simple reason that no general increase or material variation of wet ayacut took place in the interval.

18. It is necessary however to consider another argument put forward on behalf of the appellants. It is said that, whatever may have been the intention of Government in passing G.O. No. 101, Revenue, dated the 16th January 1864, the concession was interpreted by their officers and given practical effect in a particular way, and this procedure was approved and ratified by Government in 1894, so that as thus given effect to it must now be treated as a binding engagement-

19. The officers in question are Messrs. Hope, Collector of Godavari in 1875-76, and K. Subba Rao, Deputy Collector on General Duty. Mr. Subba Rao, under instructions from Mr. Hope's predecessor, made an investigation in sixteen villages, including these now in question, and submitted proposals to Mr. Hope for the determination of the 'usual wet-area' on which exemption was to be allowed. Copy of Mr. Subba Rao's report is filed as Exhibit IX in Original Suit No. 46 of 1906 (Second Appeal No. 1468 of 1911). He took the 'highest' area of wet cultivation in any one year before the villages were brought under the anicut as the basis of his recommendation: and converted this area (recorded in the Bhuband accounts only in terms of seed grain, into acres on a system of calculation of his own. The appellants contend that his procedure in both particulars has been ratified by Government and cannot now be called in question. It embodies the exemptions they now claim. It was not argued before us that Subba Rao was acting under the authority of Government, or that, in the absence of ratification by Government, Government would be bound by his action. A clear authority against such a view, if it were needed, is to be found in The. Secretary of State for India in Council v. Kasturi Reddi I.L.R., (1903)) Mad., 268 . The only question is whether his settlement was ratified by Government. There was certainly no ratification by Government at the time, Exhibit X (in the same suit) shows that the Collector Mr. Hope (influenced apparently by the sole idea of saving himself trouble) told Subha Rao to dispose of the matter himself, and let parties aggrieved appeal to him. No appeals seem to have been filed: and no further question was raised hill 1892, when Mr. Higgins, then Collector of Godavari, raised the question of whether the unauthorised settlement of Mr. Subba Rao should be repudiated. The Board in a resolution, dated the 31st March 1894, recommended that it should, on the ground that Subha, Rao's conversion rate was excessively high: hut Government in its Order No. 661, Revenue, dated the 13th September 1894, directed that 'having regard to the official position held by that officer when he made the Battlement and to the circumstance that in fixing the rates, ho proceeded under the orders of the then Collector of the district and followed the sanctioned rules on the subject, the settlement made by him should not now be repudiated.'

20. This in the order, which is now put forward as it ratification which is irrevocably binding on Government.

21. The District Judge states that the order 'was never communicated to the parties concerned and was not in fact acted upon.' This statement appears to be correct: and it has not boon traversed before us. The whole question was reconsidered shortly afterwards on receipt of a further report, and on the 17th Juno 1895 Government passed a fresh order (copy filed as Exhibit XII in Second Appeal No. 1468 of 1911) directing that in all cases in which the rates of conversion had not been accepted for at least 20 years they might be revised. This, in effect, repudiated Subba Rao's settlement, which was only submitted for the Collector's orders on 31st December 1875, and this was Government's final decision in the matter.

22. In these circumstances, I do not consider that the order dated the 13th September 1894 can be treated as a ratification which would bind the hands of Government. There can be no estoppel, for it was never communicated to the landholders, much lease acted upon by them. Mr. Seshagiri Ayyar for the appellants contends that no communication of the ratification is necessary, and that any expression (written or oral) of a resolve to ratify contract is absolutely irrevocable oven though uncommunicated and though the ratifier may change his mind a moment later. This is a startling proposition and one in support of which no authority has been cited.

22. The sections of the Contract Ant which deal with ratification (sections 196-200) are silent on this point, and no rulings which have any bearing upon it have been quoted before us. But on a consideration of the principles which seem to underlie the Act, it seems to me that an express ratification within the meaning of Section 197 cannot become complete until it is communicated to the other party. Till than it is liable to revocation. This is in accordance with the principles embodied in the provisions of Sections 3-6 of the Act, which deal with proposals, acceptances and revocations (vide, in particular, Section 5).

23. The Government Order, dated the 13th September 1894, in so far as it purports to ratify Subba Rao's sittlement, must therefore be treated as an incomplete ratification, having been revoked before communication, and is therefore noli binding upon Government.

24. I therefore agree with the District Judge in holding that the plaintiffs have failed to prove the engagement set up by them, and that the suits as framed must fail. In one case only (Second Appeal No. 1774 of 1911) the appellant's vakil has in this Court applied for, and been granted, permission to amend his plaint by basing his claim not on the engagement first pleaded, but on the usual engagement to allow free irrigation to all the wet ayakat at permanent settlement. In the other appeals the appellant's vakil on mature consideration elected not to apply for a similar amendment. This case (Second Appeal No. 1774 of 1911) will have to be considered separately. The other appeals (Second Appeals Nos, 1D98-1401 and 1770 of 191.1) must be dismissed with costs.

25. [His Lordship then dealt with Second Appeal No. 1774 of 1911, and reversed the decree in the same and then disposed of Second Appeals 1308, 1468 and 1563 of 1911 which were dismissed; but the judgment relating to the same has been omitted herein as not material to be reported.]

Sadasiva Ayyar, J.

26. Of the nine suits out of which these nine second appeals have arisen six fall under one class and three under another class. The latter three are the suits out of which Second Appeals Nos. 1368, 1468 and 1563 have arisen. The other six suits form a distinct though connected class, the allegations in the plaints in those six suits being very similar. But during the arguments before us, the plaint in suit No. 1774 was allowed to be amended and hence the suit out of which the Second Appeal No. 1774 arose has to be separately dealt with from the other five suits. I shall first, therefore, shortly deal with the Second Appeal No. 1774.

27. As amended, the material allegations in the plaint in that suit are as follow:

(a) The plaintiff is the proprietor of the village of Navarasapuram, Narasapur taluk, Kistna district.

(b) Prior to the introduction of the anicut system of irrigation into the Godavari delta, the plaintiff's proprietary village of Navarasapuram had a wet ayacut of P. 48-19 (T).--11 M. irrigated under independent sources of irrigation. The construction of the river embankment by the Government intercepted those sources and rendered them useless for irrigation purposes.

(c) Under such circumstances, the Government were bound to compensate the proprietor, and they declared by a general order (G.O. No. 101, dated 1864) that in all cases where the pre-existing sources of irrigation were out off by the anicut works Government water would be supplied free of charge.

(d) Under the orders at his departmental superiors, M.B.Ry. K. Subba Rao Pantulu Garu, the officer in charge of the division, in 1875, settled the extent entitled to free irrigation in the plaintiff's village to be 603 acres 48 cents by converting the old wet ayacut (P. 48-19-11) into acres at the average conversion rate of the village, viz., acres 1232 per putti, and it is not open to the Government; to go behind this settlement of Kanchi Subba Rao and re-open the question. At the time of the Permanent Settlement between Government and the plaintiff's ancestor, the wet ayacut was also of the extent of 48 puttis 19 (T) and 11 manikkas. There was therefore an engagement at the time of the said Permanent Settlement (1837) between Government and the plaintiff's ancestor that the plaintiff's estate was not to be charged water-rate for water used in irrigating the said area, which was being cultivated as wet at the time of the Permanent Settlement.

(e) From 1875 to 1905 the plaintiff enjoyed free irrigation for the 603 acres 48 cents settled by Kanchi Subba Rao; but meanwhile another Deputy Collector appointed by Government, M.R.Ry. P. Negeswara Rao Pantulu Garu, reduced the mamul wet extent of the suit village from 603 acres 48 cents to 430 acres 76 cents, i.e., by 172 acres 72 cents; and Government has been illegally levying water-rate on this difference of 172 acres 72 cents from 1905.

28. On the above material allegations, the plaintiff brought the suit against the Secretary of State for a declaration of the plaintiff's right to enjoy these 172 acres 72 cents also free from water-tax and for an injunction. The defendant, the Secretary of State, raised several defences to the plaint as originally framed; but after the plaint was amended by inserting the allegation that the plaintiff was entitled to free irrigation as regards the area which was classed as wet at the time of the Permanent Settlement of 1837, the only defence pressed is found in paragraph 6 of the written statement. The said paragraph 6 is as follows:

The conversion rate of 8 acres to the putti adopted by M.R.Ry. P. Nageswara Rao Pantulu Garu is correct, and the plaintiff is not entitled to any greater extent of irrigation free of water-cess than has been allowed by M.R.Ry. P. Nageswara Rao Pantulu Garu, viz., 430-76 acres.

29. The only questions, therefore, for decision in this case are:

(1) What was the extent in puttis of wet lands at the time of the Permanent Settlement, it being admitted that there was an implied engagement by Government that area should be free of water-rate?

(2) What is the correct rate of conversion for such area? Is it 12'32 acres per putti as was decided by Kanchi Subba Rao Pantulu Garu in 1875-76, or is it 8 acres par putti as decided by Nageswara Rao Pantulu Garu in 1904?

30. As regards the first question, three officers of the Government, viz., K. Subba Rao Pantulu Garu in 1875, C.K. Venkatachalam Pantulu Garu in 1895 and P. Nageswara Rao Pantulu Garu in 1904, all proceeded on the footing that the plaintiff was entitled to free irrigation as regards 48 puttis 19 (T) and 11 manikkas. 'They differed only as regards the conversion rate. The documents produced for the defendant, the Secretary of State, VIZ., husband accounts, Exhibit I series, show that, at the time of the settlement, the wet area was 48 and odd puttis. The next question is as to the conversion rate. The learned District Judge in his judgment in the connected suit No. 1898 of 1911 dealt with this question at length. In paragraphs 31 and 32 of that judgment the learned District Judge holds that the rate of conversion for puttis at 8 acres per putti, which was adopted by the Inam Commissioner (who was followed by P. Nageswara Rao Pantulu), was an arbitrary rate and was not at all accurate. As the District Judge remarks in that judgment, the area given in the Inam Commissioner's title-deed at 8 acres per putti and the area in acres as found by actual measurements at the survey of these inam villages do not tally at all, and 'we have no evidence that any inamdar has encroached on any area outside what was granted him under his title-deed.' As the learned District Judge says in another place, the area entered in the title-deed of tine inamdar in acres 'was not measured before that area was entered in the title-deed' and 'the old area shown in the husband accounts was merely converted into acres by multiplying it by whatever commutation rate the Inam Commissioner had fixed for that taluk' and was so entered in that title-deed. 1 [once the true area for the inam lands mentioned in puttis in the husband accounts should be arrived at in the mode in which similar areas were arrived at by the High Court in Appeal No. 182 of 1904 and in Mahalakshmamma v. Secretary of State for India (1910) M.W.N., 595 . The learned District Judge practically adopted that same plan in the present case and arrived at the area of mamul wet as 49-101X1131-93 acres i.e., about 550 acres I might add that in Maclean's Manual of Administration (Volume II, Glossary, page 711), the area of a putti is admitted to be not a uniform area but to vary between 8 and 11 1/2 acres it different villages. In the case decided by Benson and Miller, JJ., a putti was found to be 11 to 16 acres. In Mahalakshmamma v. Secretary of State for India (1910) M.W.N., 595, a putti was found equal So 20 acres. We think that on the question of the conversion rate of a putti we are bound by the finding of the District Judge as it is a question of fact, and the learned District Judge has given good reasons for his finding, based on the evidence and probabilities!. The District Judge, however, has dismissed the plaintiff's suit on the ground that the plaint was based upon an implied engagement at the time of the construction of the Godavari anicut (about 1855) instead of on an engagement at the time of the Permanent Settlement of 1837, and that, as the implied engagement of 1855 has not been proved, the suit failed though the plaintiff was really entitled to free irrigation for 550 acres by reason of the engagement at the time of Permanent Settlement. As we have allowed the plaint to be amended so as to enable the plaintiff to rely upon the engagement at the time of the Permanent Settlement, we must set aside the decree of the District Judge dismissing the suit wholly, and a decree will issue in plaintiff's favour declaring his right to irrigate his lands by the Godavari anicut works to the extent of 550 acres and granting the injunction prayed for against Government. As the plaintiff has substantially succeeded in this case I was rather inclined at first to allow some coats to the plaintiff against the Government, but I do not think it necessary to differ from the opinion on this point of my learned brother that each side should bear its own costs throughout.

Second Appeals Nos. 1398 to 1401 and 1770 of 1911.

31. In the suits out of which these 5 appeals arose, the plaintiffs are mokhasadars and proprietors of villages containing wet lands irrigated by the Godavari anicut system. In the plaints, the plaintiffs set up implied engagements with the Government as regards their right to free irrigation. To avoid confusion, we have to distinguish between two implied engagements made at two separate times, This distinction has not been uniformly recognized in the numerous proceedings of the Board of Revenue and the Government Orders, which have been adduced in evidence in these cases, and hence much confusion has arisen. The first engagement was admittedly at the time of the Permanent Settlement. The Permanent Settlement as regards the village in dispute it Second Appeal No. 1398 was made in 1802, that village being in the Nidadavole estate. In the four other Second Appeals, the villages in dispute are in the Elamanchili Zamindrai, which was granted by a sanad of 1837. Both sides agree that at the time of the Permanent Settlement (1802 in one case and 1837 in the other four cases), Government did impliedly engage not to charge water-tax upon the wet area cultivated as mamul wet at the time of the said Settlement (1802 or 1837 as the case may be). The learned Government Pleader further conceded (he could not but make this concession in view of the proceedings of the Board of Revenue and the Government Orders filed as evidence on the aide of the defence itself) that, even if the area cultivated as wet at the time of the Permanent Settlement in 1837 or 1802 had become diminished by neglect of tanks and channels by the proprietor when the Godavari anicut system was established in 1855, the proprietors were entitled to free irrigation from the new works for the whole wet area mentioned in the Gudicat accounts prepared at the time of the Permanent Settlement. So much as to first or primary engagements which took place at the time of the Permanent Settlement. The next implied engagement had (according to the plaintiffs) its birth about the time of the construction of the Godavari anicut works, that is about 1855. As I understood the Government Pleader, he admitted that the introduction of the anicut system interfered with the older sources of irrigation and rendered those older sources of irrigation useless for the purposes of irrigation of all the wet lands which were under cultivation as wet in 1855. He farther admitted that the Government were bound to compensate the proprietors the a certain extent on account of such obstruction to the old sources of irrigation, but he contended that they were bound to compensate only to the extent of the area which was mamul wet at the time of the Permanent Settlement (in 1802 or 1837) but not the extent of the further area which might have been brought under cultivation as wet land by the proprietors between the date of the Permanent Settlement (1802 or 1837 as the case may be) and the construction of the anicut works in the fifties. He further contended that, as these suits were based on the allegation that there was an implied engagement by the Government to allow free irrigation for the area under wet cultivation in 1855 and not merely for the area under wet cultivation in 1802 or 1837, the suits were rightly dismissed by the learned District Judge. We have seen that the first engagement at the time of the Permanent Settlement is admitted by both sides. The second engagement of the fifties, according to the Government Pleader, merely altered the first engagement by adding a clause that the mamul wet area at the time of the Permanent Settlement which was being irrigated by the old works free of payment of water-tax to Government might continue free from water-tax when irrigated by the new anicut works channels instead of by the older irrigation works destroyed by the new anicut works. The plaintiff's contention on the other hand is that the second engagement did not relate to the Permanent Settlement mamul wet area of 1802 or 1837 but to the mamul wet area as it existed at the time of their interference by the anicut works in 1855. The important question in these five appeals therefore is whether the implied engagement of 1855 (which modified or superseded the engagement of 1802 or 1837) related to the mamul wet area as it stood at the time of the Permanent Settlement or to the mamul wet area as it stood at the time of the construction of the anicut works.

32. It will be convenient in this place to make a short reference to the Madras Act VII of 1865. Section 1 of that Act so far as is necessary for the present case is as follow:

Whenever water is supplied or used for purposes of irrigation from any work belonging to 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 the zamindar or inamdar 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 this right and no more.

33. The contention in these cases turns upon the effect of this proviso and the meaning of this proviso. The contention of the Government is that the combined effect of the engagement at the time of the Permanent Settlement and at the time of the construction of the anicuts which destroyed the older sources of irrigation was an undertaking by the Government to supply water free from the new works to the extent of the area which was mamul wet at the time of the Permanent Settlement and, as the plaintiff does not rely upon an engagement on these terms hut on a different engagement, viz., an engagement by Government to supply free of water-tax the area which was mamul wet in 1855 several years after the Permanent Settlement, the plaintiff's suits must fail. As I said before, the question is whether the engagement was of the nature set up in the plaint, i e., having reference to the mamul wet area in 1855 or was it of the nature contended for by the Government Pleader, having reference to the mamul wet area at the time of the Permanent Settlement.

34. The difficulty in arriving at a conclusion on this question is due to the circumstance that the nature of the engagement of 1855 has to be gathered, not from any written offers or acceptances or correspondence passing between the Government on one side and each of the numerous zamindars, proprietors, mokhasadars and inamdars who were affected by the Godavari and Kistna anicut works on the other side, but from the declarations of Government and by the conduct of Government and of the proprietors, etc., and from the acts of Government officers acting within the scope of their authority, or, if not acting within the scope of their authority, from such acts ratified afterwards by the Government. Speaking for myself, I further hold that the decisions of this Court in similar cases on the meaning of the expression 'engagements' in Section 1 of Act VII of 1865 are authorities binding on mo.

35. Though I have formulated the question as if the two kinds of engagements, the one set up by the plaintiffs and the other set up by the Government, are different engagements, it is clear that under certain circumstances the two engagements might be practically identical and even that the engagement set up by the plaintiffs might be less burdensome on Government than the engagement contended for by Government. If the mamul wet area at the time of the Permanent Settlement is identical with the mamul wet area at the time of the anicut works, the engagement as contended for by the Government and the engagement as contended for by the plaintiffs would be identical. If the mamul wet area at the time of the anicut works was less than the mamul web area at the time of the Permanent Settlement, the engagement contended for by the plaintiffs will be less burdensome on Government than the engagement as contended for by Government. (I may add that on the strength of some observations in one of the proceedings of the Board of Revenue, filed as evidence in these cases, the learned Government Pleader admitted that the mamul wet area at the time of the construction of the anicut works was probably less than the area at the time of the Permanent Settlement in most cases, as many zamindars had allowed a portion of the mamul wet area at the time of the Permanent Settlement to lapse into dry or waste land through the neglect of their ancient irrigation works.) If, however, the mamul wet area in 1855 had become larger than the mamul wet area at the time of the Permanent Settlement owing to the proprietor or the tenants under the proprietor having brought fresh dry or waste land into wet cultivation, then the engagement as set up by the plaintiffs would be more burdensome on Government than the engagement as contended for by the plaintiffs.

36. The learned Government Pleader relied upon the well-known Urlam case Kandukuri Mahalakshmamma Garu v. The Secretary of State for India I.L.R., (1911) Mad., 295 in support of his contention that the only engagement which could be relied on by a proprietor was the engagement at the time of the Permanent Settlement enabling the proprietor to irrigate free of separate charge the extent of land which was classed as wet at the time of such settlement. If 1 understood him rightly, his contention was that, though Government had admitted that there was an implied modification of that engagement at the time of the construction of the anicut works in consequence of such construction having interfered with the anicut irrigation works and even though the written statement (paragraph 6) in one of the suits admitted an obligation on Government which arose in 1855, he was technically entitled to plead that there was no engagement of any kind, even an implied engagement, in 3 855. The judgment in the Urlam case, in my opinion, does not state that the only engagement which can be relied on by a proprietor is the engagement impliedly given by the Government at the time of the Permanent Settlement. Section 1 of Act VII of 1865 speaks of engagements (in the plural); the plaintiffs agree that there was an engagement at the time of the Permanent Settlement also; the Government itself, in my opinion, has practically admitted that there was an engagement at the time of the anicut works which supplemented the engagement at the time of the Permanent Settlement, supplementing the first engagement in the sense that the proprietor was entitled to substitute irrigation by the new works as regards the Permanent Settlement wet area for the irrigation under the old irrigation source. Kandukuri Mahalakshmamma Garu v. The Secretary of State for India I.L.R., (1911) Mad., 395 is therefore no authority for the proposition contended for by the learned Government Pleader, there having been no question raised in that case connected with the obligation of the Government to compensate the proprietor for the destruction of the older irrigation works, serving the wet area at the time of the construction of the new anicut works by Government. The case in Secretary of State for India v. Ambalavana Pandarasannadhi I.L.R., (1911) Mad., 366, quoted by the learned Government Pleader, is also not of much use as that case merely laid down the proposition that it is not the area at the time of the grant or the Permanent Settlement (grant in the case of inams and Permanent Settlement in the case of zamindaris and proprietary estates) that governs the engagement but the quantity of water which was being supplied at the time of the grant or settlement. That case lays down that where a larger area is irrigated by the inamdar subsequent to the grant, it will be open to him to show that the increase in wet area is not due to any increase in the quantity of water used by him, but to a more economical use of the same quantity of water, in which case no water-rate can be levied for the increased extent of area.

37. I do not think it necessary to dwell at length on the cases which establish that the engagement mentioned in the Permanent Settlement is not confined to an express agreement between the Government and the landlord or inamdar. In Secretary of State for India v. Ambalavana Pandarasannadhi I.L.R., (1911) Mad., 366, the learned Chief Justice and my learned brother Mr. Justice Ayling inferred implied engagements by the Government (see pages 370 and 371). In one place (see page 371), the engagement is called an 'implied undertaking.' The learned Judges refer in that case with approval to the principles established in Maria. Susai Mudaliar v. the Secretary of State for India in Council (1894) 14 M.L.J., 350. The legislature has evidently used the comprehensive word 'engagement' instead of the word 'agreement' or 'contract' in order that implied undertakings (based on equitable considerations) made by Government and not merely the ordinary contracts based on regular deeds signed by parties or arising out of formal proposals and acceptances made orally or to be gathered from correspondence might be relied on by landlords, proprietors and inamdars in support of their claims for exemption from water cess.

38. In Maria Susai Mudaliar v. The Secretary of State for India in Council (1894) 14 M.L.J., 350, it was held, following The Secretary of Slate for India in Council v. Perumal Pillai I.L.R., (1901) Mad., 279, that where a proprietor had been customarily obtaining supply to his tanks from Government sources, he was entitled to use that customary supply for extension of cultivation by virtue of his 'engagements with the Government' without being liable to pay water-tax for any portion of that supply, when he had made extensions of wet cultivation with that supply. The meaning of the term 'engagement' has been considered by my brother Sankaran Nair, -I., and myself in the separate but substantially concurring judgments which we pronounced in Venkata Rangayya Appa Rao v. Secretary of State for India : (1913)24MLJ680 . Referring to the argument of the learned Government Pleader in that case that the only engagement intended by the Act of 1865 is the one to be implied from the grant of the Permanent Sanad, Sankaran Nair, J., says: 'The section itself is not restricted to any engagement at the time of the permanent settlement. And I have no doubt it was open to the parties to enter into any engagement at any time they liked. He '(the proprietor)' is entitled to exemption if his pre-existing source of supply is interfered with or if the accounts show a nanja assessment or if the title-deed supports the claim. The one is not exclusive of the others. The Act, as rightly pointed by the Judge' (District Judge), 'being only an embodiment, so far as this matter is concerned, of the pre-existing rules, an engagement is implied if any of these grounds exist.' Both of us refer in that case to the judgment of Benson and Miller, JJ., in Secretary of State v. Kameswaramma Appeal No. 182 of 1904, in which notwithstanding that the Government contended that the District Judge erred in law in finding that there was an implied contract between the plaintiffs and the Government to allow free irrigation for the extent of land the irrigation sources of which had been out off by the anicut works, those learned Judges brushed aside that contention and Cook it as indisputable that; the Government was bound by an implied engagement to allow free irrigation to the extent of land which was irrigable from the irrigation sources existing before the construction of the Godavari anicut system, further refer in my judgment in that case to the proceedings of the Board of Revenue, dated the 11th September 1898, in which it is admitted that the Government allowed free irrigation from the anicuts to all lands which owing to the construction of the several anicut channels and other works connected therewith were found to have lost wholly or partially their pre-existing sources of supply, those proceedings of the Board of Revenue being based on G.O. No. 101, Revenue, dated the 16th January 1864.

39. We have heard the several Government Orders of 1854, 1859, 1860, 1864, 1865, 1871, 1894, the Rules of the 31st October 1865, passed in pursuance of the Act (especially Rule 10) and in continuation of old draft rules, and the several proceedings of the Board of Revenue connected with these Government Orders all these have been exhibited as evidence in this case) fully discussed on both aides, and 1 need only say that I have seen no ground for altering the opinion which I had arrived at in Venkata Rangayya Appa Rao v. Secretary of State for India : (1913)24MLJ680 . I took that view mainly on the strength of the decision in Secretary of State v. Kameswaramma Appeal No. 182 of 1904. Benson and Miller, JJ., took, if I may say so respectfully, a very equitable view in this latter case when they decided, confirming the view of Mr. Hamnett (who decided that case as District Judge), that the Government are bound by implied engagements to allow from the new anicut works that supply of water which was necessary for the irrigation of all lands which had been customarily cultivated as web just before the construction of the anicut works and not merely that area which might have been irrigated as wet at the time of the grant by the Permanent Settlement to the proprietor (or the grant by inam title-deed to the inamdar). The few new Government Orders and Board's Proceedings which have not been referred to by Sankaran Nair, J., in his judgment in Venkata Rangayya Appa Rao v. Secretary of State for India : (1913)24MLJ680 and which have been strenuously relied upon by the learned Government Pleader in this case are not inconsistent, in my opinion, with the conclusion of Sankaran Nair, J. The judgment of Sankaran Nair, J., was very freely, though of course with due and proper respect, criticised by the learned Government Pleader in his arguments before us in this case, but in my opinion, while Mr. Justice Sankakan Nair, might have placed the riparian or easement rights of proprietors in waters belonging to Government on a higher footing than I might be inclined to do it and while his inference from Rule 7, paragraph 6, Venkata Rangayya Appa Rao v. Secretary of State for India : (1913)24MLJ680 may not follow from that rule, the general conclusions which ha arrived at so far as the particular now in dispute is concerned, seem to me to follow irresistibly from, and to be fully supported by, the general tenor of the Government Orders and Board's Proceedings discussed before us. 1 do not say these orders and proceedings are quite clear and logical throughout Even judicial pronouncements fail to be completely logical or consistent in not a few cases. The Government Orders are many of them rather too brief and too tersely worded, and generally appear at the end of a long recital of the papers read by the Government before those brief orders are passed, and as might be expected, the brevity sometimes, nay, very often, leads to obscurity. The distinctions between the implied engagement at the time of the Permanent Settlement, the right of the Zamindar to get supply for the wet area as it stood at the time of the Permanent Settlement, though such area might have diminished at the time of the anicut works by reason of his own neglect of the irrigation tanks, etc., his right to get the same supply of water without liability for water rate where he and his ryots by prudence have used the same supply of water for bringing a larger area under cultivation, his right to get water from the new works for all lands which he had made customary web between the dates of the Permanent Settlement and the date of the new works without; liability to pay further water-tax, the distinctions between all these several rights have not been dearly kept in view in the several Government Orders and even in some of the Board's Proceedings; but the general impression left on my mind is the same as was left upon the two very learned Judges Benson and Miller, J.T. (who had varied revenue experience in the beginnings of their long official careers) and upon Sankaran Nair, J. (who, as Government Pleader, had very close acquaintance with these matters). I need not say that I am differing from my experienced and learned brother Ayling, J., in this case with very great reluctance, but I feel constrained to do so as, in the view I take of the decision of Benson and Miller, JJ., in Appeal No. 182 of 1904, it is a precedent binding on me till it is overruled by a Full Bench. The Revenue Board took the same view when Sir Murray Hammick was the Secretary of that Board. The G.O. No. 623, dated the 4th September 1888, printed at the end of Exhibit XXIX, adopted even a more liberal view, namely, that 'the highest Gudicat wet area entered in any reliable account as entitled to free irrigation whether previously cultivated or not' should get free irrigation from the new works and not merely the area 'usually irrigated at the time of the introduction of anicut irrigation.' Thus, so far as the latter area, is concerned, Government had evidently no doubt whatever as to the right of the proprietor to irrigate the same free. I shall now refer to certain facts which seem to me to be almost conclusive in the plaintiffs' favour as establishing the rights claimed by them in these suits. Kanchi Subba Rao, General Duty Deputy Collector, Godavari, with the special approval of his Collector, decided as regards these five proprietors (and several others) the extents of the areas to the free irrigation of which they were entitled from the new works by reason of these new works having cub off the old sources of irrigation. This was in 1875-76. (Sea Exhibits VIII to X.) In accordance with the decision of Kanchi Subba Rao, these proprietors enjoyed irrigation for the said areas free of water-cess for about 30 years till 1905. I need not say that the views of one Collector frequently differ from those of another, of one Board of Revenue from those of another Board of Revenue formed of different individuals, and of one Government assisted by one Revenue Secretary from those of a succeeding or even the same Government served by another Secretary. In 1893, Mr. Wynne, the then Collector of the Godavari District, seems to have thought it necessary in the interests of the Government revenue to repudiate Kanchi Subba Rao's actions in allowing certain areas as entitled to free irrigation, such areas being based on the rates of conversion of a Gudicat putti which Kanchi Subba Rao considered as the true rates. The letter of Mr. Collector Wynne was forwarded to the then Government Pleader, Sir S. Subrahmania Ayyar (afterwards a distinguished Judge of this Court), for his opinion by the Revenue Board. That distinguished lawyer formulated thus the question on which his views were called for (see paragraph 4 of his letter printed in Exhibit XI). 'The question therefore is whether this action of the Deputy Collector' (Kanchi Subba Rao) 'in 1875-76 precludes the Government from re-opening the matter and claiming cess for water supplied to lands over and above the extents, really covered by its engagements with the proprietors,' (That is, as shown on a perusal of the whole of Exhibit XI, the true area in acres of the putti extents cultivated at the time of the construction of the anicut, if such area is found to have been mistakenly exaggerated by the alleged wrong conversion rates adopted by Mr. Kanchi Subba Rao.) This letter of Sir S. Subrahmania Ayyar clearly shows that eminent lawyer was undoubtedly of the opinion that there were engagements with the proprietors for free irrigation for the areas cultivated as wet at the lime of the anicut works. Sir S. Subrahmania Ayyar's opinion was that Kanchi Subba Rao's calculation of the area based on what he (K. Subba Rao) considered to be the proper conversion rates was not binding on the Government for ever, if the true conversion rates were different. The Government was entitled to ascertain the true area and if that true area was less than Kanchi Subba Rao's area, they could in future charge assessment on the difference. The Board of Revenue advised the Government to repudiate Kanchi Subba Rao's calculation of the area to be recognised as free from wet assessment, and it is again to be noted that they did not question the right of the proprietors to irrigate the true area from the new works free of assessment. On the 13th September 1894, the Government over the signature of Mr. E. Gibson, Acting Secretary to Government, passed the following order: 'The Board's proposals are approved except as regards the 16 villages dealt with by the Deputy Collector Kanchi Subba Rao for which the Government considers that, having regard to the official position held by that officer when he made the settlement and to the circumstance that in fixing the rates he proceeded under the orders of the then Collector of the district and followed the sanctioned rules on the subject, the settlement made by him should not now be repudiated.' It seems to me that this G.O, No. 661, Revenue, dated the 13th September 1894, precludes the Government thereafter from repudiating Kanchi Subba Rao's figures. It is true that in June 1895 the Government passed fresh orders (see Exhibit XII) over the signature of Mr. Forbes, the then Acting Secretary to Government, giving instructions to Mr. Venkatchalam Pantulu Garu, the Special Deputy Collector, to ascertain the mamul wet areas tobe allowed according to the true rates of conversion of puttis into acres in all cases where the rates of conversion have not been accepted for at least 20 years. This Government Order does not refer to the Government Order of September 1894 which directed that Kanchi Subba Rao's conversion rates for 16 villages should not be re-opened. The Deputy Collector Mr. Venkatachalam Pantulu naturally felt doubts as to whether this Government Order of June 1895 was not inconsistent, so far as regards Kanchi Subba Rao's 16 villages, with the Government Order of September 1894. He wanted instructions from the Collector who wrote to the Board of Revenue and the Board of Revenue wrote in their turn to the Government and the Government in a short sentence passed orders on the 16th September 1895 as follows: 'The instructions contained in Government Order, dated 17th June 1895, No. 2416, supersede those in Government Order, dated 13th September 1894, No. 661.' It seems to me (with great respect) that it was rather a strong course for the Government to take to repudiate the very deliberate and considered proceedings of September 1894 within nine months of the passing of that order.

40. Supposing that they were legally entitled to do so, the later proceedings merely expressed their intention to find out the actual area and to correct any of the mistakes which Kanchi Subba Rao fell into as regards the conversion rates of the putti area entitled to free irrigation at the time of the anicut works. The new Deputy Collector, Venkatachalam Pantulu Garu, adopted Kanchi Subba Rao's area; but the Government) was still not satisfied, and again another Deputy Collector was appointed, and he adopted the Inam Commissioner's rule of thumb formula of 8 acres per putti. Some officers of Government are, of course, influenced in forming their opinions as to the rights of Government by a very natural and proper zeal for the interests of the Government revenue; others are influenced by an equally proper zeal for the fair name of the Government, namely, that the Government should not lightly repudiate the undertakings and promises made by itself or by its responsible officers and accepted as an undertaking of the Government for a long time by the people to whom those promises were made directly or indirectly. The result of the latter kind of zeal is seen in the Government Order of 1894, while that of the other kind is found in the Collector's letter of 1895. Surely the proprietors of landed estates are not bound by the decision of the third Deputy Collector, Mr. Nageswara Rao, as to the true rates of conversion, and as I have shown in my judgment in Second Appeal No. 1774, the learned District Judge for very good reasons practically adopted Kanchi Subba Rao's figures and rates as correct in six of the nine cases in dispute. I therefore adopt the learned District Judge's figures, rejecting Nageswara Rao's figures as incorrect;.

41. On the question whether the Government having ratified after mature consideration and after having been fully informed that Kanchi Subba Rao might have made mistakes in the conversion rates, whether the Government, after all this knowledge, having ratified Kanchi Subba Rao's settlement of 1875 in 1894 could afterwards repudiate it, I shall only quote a few passages from two standard works. Pollock and Mulla in pages 538 to 541 of their Indian Contract Act say: 'A ratification is in law equivalent to a previous authority.' 'That an act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsequently ratified by him, is the well known and well established rule of law. In that case, the principal is bound by the act, whether it be for his detriment or his advantage, and whether it be founded on a tort or a contract, to the same extent as by and with all the consequences which follow from the same act done by his previous authority.' 'An act done by an agent in excess of his authority may also be ratified.' Ratification, if effective at ( all, relates back to the date of the act ratified.' 'Acts done by public servants in the name of the Grown, or of the Government of India, may be ratified by subsequent approval in much the same way as private transactions. 'Story on Agency says in paragraphs 242 to 250:' A ratification, also, when fairly made, will have the same effect as an original authority has, to bind the principal, not only in regard to the agent himself, but in regard to third persons,' 'In short, the act is treated throughout as if it were originally authorized by the principal; for the ratification relates back to the time of the inception of the transaction and has a complete retroactive efficacy; or, as the maxim above cited expresses it, 'Omnis ratihabitio retrotrahitur.' 'And a ratification once deliberately made with a full knowledge of all the material circumstances cannot be recalled.' 'Ratification once deliberately made upon full knowledge of all the material circumstances, becomes, eo instanti, obligatory, and cannot afterwards be revoked or recalled.' I do not intend to lay down that a mere mental ratification of an agent's unauthorized acts by a principal or a ratification in soliloquy is enough to bind the principal: But it seems to me that a deliberate and considered ratification by Government reduced into a formal Government Order surely stands on a quite different tooting just as a person's declaration in a registered document would stand even if not directly communicated to third persons, If such a ratification in 1894 is not conclusive against Government, why should its unobtrusive repudiation of the ratification in 1895 be held conclusive or final? As I said already, the engagement of Government has to be gathered, not from formal communications passing in large numbers between the Governor in Council and each of the landholders, inamdars and ryots but from formal declarations of Government acted upon by Government officers, from the conduct of parties evidently based on such declaration and from the implied acceptances of such conducts on both sides, I find it difficult to believe that the land-holders and inamdars would have kept silent for so long as they did, if Mr. Kanchi Subba Rao's settlement had not been acted upon for so many years. Ratification by a long course of conduct is not less effective than a ratification by a formal declaration. The orders of Government are public acts of the highest public functionaries, and those interested in such orders relating to revenue matters affecting large classes (as distinguished from particular individuals) obtain knowledge of such orders, not by direct written communication from the Government Office itself to each of the individuals of the large affected class but from the acts and omissions of the Revenue Officers at the time of jamabandi (in the case of ryots) and from the information even and declarations made by Revenue Officers at such times or on occasions of visits to and interviews with the Revenue Officers in the case of proprietors and the larger inamdars and from entries in village and other revenue records giving effect to such Government Orders. The result is that the District Judge's decrees dismissing these five suits should be reversed and judgments given in favour of the plaintiffs, the plaintiff or plaintiffs in each case being entitled to a declaration that the area as found by the District Judge as mamul wet at the time of the anicut works is entitled to free irrigation and not merely the area incorrectly mentioned as mamul wet by Mr. Nageswara Rao. The plaintiffs will get their costs in all Courts from the Secretary of State, three months being given to the latter to pay the said costs. In Second Appeals Nos. 1398 to 1401 and 1770 of 1911, fine Government should also refund to the appellants the respective sums claimed to be refunded as wrongly collected.

Second Appeals Nos. 1368, 1648 and 1563 of 1911.

42. In these cases, the questions are substantially the same; but the plaintiffs are inamdara under title-deeds issued about the years 1860 and 1869, whereas in the other six cases the plaintiffs wore proprietors or mokhasadars who got their lands under Permanent Settlement sanads of 1802 and 1837. The principles involved however are practically the same. The learned District Judge admits that, as regards the areas shown in the inam title-deeds, the Government; is bound to supply them with water from the now anicut works free. Now the area in an inam title-deed is mentioned in acres and not in puttis. But it is admitted that, the Inam Commissioner instead of the puttis entered in the old accounts converted the puttis into acres at 8 acres per putti and entered the extent in acres so found in the respective title-deeds. The title-deeds do not definitely say that the extent in acres is accurate. The village is mentioned and the web area is entered as 'said' to be of so many acres. These three villages are three of the 16 villages settled by Kanchi Subba Rao. The learned District Judge in his judgment in Second Appeal No. 1398 of 1911, which governed six of the nine suits, found that the Inams Commissioner's conversion rate at 8 acres per putti was arbitrary, and yet in these three suits the learned District Judge has come to a different finding on the ground that 'the In am Commissioner specially made experiments to fix the commutation rate for each taluk, and arrived at 8 acres for this taluk; further there is evidence adduced that 8 acres was the rate prevailing in the taluk.' 1 can find no such evidence, and I think the learned District Judge erred in disturbing the finding of the learned Subordinate Judge as regards the true area granted as inam to the plaintiffs in these cases and accepting the area in acres put down in a very rough manner in the title-deed as unimpeachable by the plaintiff. I might further abate that the Government Order of September 1894 (Exhibit XI) in which the Government accepted and ratified Kanchi Subba Rao's engagements with the proprietors and inamdars of the 16 villages as regards the respective areas to which they were entitled to free irrigation is conclusive in plaintiff's favour. Reversing therefore the District Judge's judgments, I would allow the Appeals Nos. 1368 and 1468 of 1911 with costs and grant to the plaintiffs decrees declaring their right to enjoy as mamul wet the areas mentioned in their plaints free of water-cess and ordering refunds In Second Appeal No. 1563 of 1911, it is found that the plaintiff was wrong in having claimed 16 tooms 1 manikat and 8 giddas as wet extent and that his family was entitled to only 5 tooms, i.e., 1/4 putti. For reasons already stated, I hold that this 1/4 putti is not 2 acres as taken by the Inam Commissioner and by Mr. Nageswara Rao but is of the extent of 3 acres 40 cents according to the true mode of conversion of: puttis adopted by Mr. Kanchi Subba Rao (this rate of conversion is found by mo on the basis that one putti 16 tooms 1 manikat 8 giddas has been found at the survey to measure 24 acres 51 cents). It is further found that the plaintiff is, entitled only to 147/220 of the area belonging to his family. I would declare in this case that the plaintiff is entitled to free irrigation for 147/220 of 3 acres 40 cents. As the plaintiff has grossly exaggerated in his plaint the area he was entitled to irrigate free of water-cess, I would direct him to pay the Secretary of State's costs throughout in this case.

43. As a result the Second Appeals except Second Appeal No. 1774 of 1911 are dismissed with costs; and the Memorandum of Objections in Second Appeal No. 1563 of 1911 is dismissed without costs.

44. [Letters Patent Appeals Nos. 111 to 117 and 121 of 1913 were preferred against the decisions in the above cases and their Lordships (Wallis, C.J., Kumaraswami Sastriyar and Phillipps, JJ.), who heard the appeals allowed the plaintiffs in Letters Patent Appeals Nos. Ill to 115 of 1913 to amend their plaints by alleging an implied agreement between the plaintiff and the Government at the time of the Permanent Settlement and granted a decree to the plaintiffs as prayed for the extents found by the District Judge and dismissed Letters Patent Appeals Nos. 116, 117 and 121 of 1913.]


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