1. This is an appeal by the Secretary of State against the decision of the Subordinate Judge of Chingleput granting the Mirasidars of the village of Damal certain preferential rights in regard to the water supply of their lands. The suit of the Mirasidars was based on the allegation that, as Mirasidars, they were entitled to certain immemorial rights. In this Court the claim was limited to easement rights arising from long use of the water of the channel and of the tank.
2. There are two sources of irrigation for the village. One is a Kasam or spring channel taking its source in the North Arcot District and irrigating solely the fields in Damal. In regard to this channel it was admitted by the learned Government Pleader that the Mirasidars of the village have all along been maintaining it in proper condition. The other source of irrigation is the tank. The Kasam or the channel passes along the northern bund of this tank. During the flood season when the tank is full the channel does not appear as a separate source of irrigation. But during the major portion of the year it is distinct from the tank and irrigates certain lands exclusively. When the tank is full no question of preferential right can arise. It is only when water goes below a particular level that difficulties are felt about the water supply. It was conceded that when there is the normal rainfall no difficulty is felt throughout the year in irrigating all the fields properly. But during the years when the rainfall is below the average, which happens only once in ten years or more, the question arises as to which of the fields in the village should have a priority of water supply.
3. It is common ground that originally the village had only 520 acres of cultivable land, which were divided into about 163 shares among the Mirasidars of the village. In addition to these lands the Mirasidars had also some Samudayam lands, the income of which was shared by them in proportion to their holding. There was a long tract of unassigned waste in the beginning. These lands were subsequently assigned by Government on Darkbast. These have been technically known as Kaipalh lands as opposed to the Pangu lands, which term denoted the 520 acres already referred to. At first the Mirasidars had practically all the waste lands assigned to them. We find in the year 1860 the total average of these lands was about 730 acres. Since then further assignments have been made and the present Ayacut of the village is nearly 2,500 acres. In these circumstances it seems to us that the presumption is the owners of the lands which were originally wet acquired a preferential right to water supply over lands which were subsequently brought under cultivation.
4. Looking at the question from another point of view the same result follows. Mr. Narasimha Aiyangar, in his very clear analysis of the nature of the cultivation in this village, drew our attention to the following facts. There are five blocks of land into which the original Pangu lands were divided. The blocks were known as Thenkazhani, Keezhkazhani, Velangadu, Perithipattu and Puthuoherry. In Thenkazhani which is more favourably situated than the other blocks, there are about a hundred acres of double crop lands. The first crop cultivation in this block begins in or about April and is harvested in September. The second crop begins in October. In Keezhkazhani there are about two hundred acres of double crop lands. In this block the first crop is cultivated in July or August and is reaped in November. The second crop cultivation begins in December.
5. In the other three blocks there are no second crop lands. In these lands and in the Kaipath lands cultivation begins in September for the only crop grown on them, It was said that in the Pangu lands of the three remaining blocks, the cultivation is a few days earlier than in the Kaipath lands. Thus we find that about February, which is generally the season when the water begins to go down in the tank, the cultivators have to depend largely upon the spring channel. At this period the second crop in Thenkazhani will be about four months old, and the single crop in the other block and in the Kaipath lands will be five months old. Therefore, the necessity for a regular supply of water will be felt more in Thenkazhani and Keezhkazhani than in the Kaipath lands. The mode of cultivation being as we have above indicated, it seems to us that if there is to be a claim for preferential treatment, as there must be when the supply is insufficient, the three and four months' crops should have the preference over crops which are very nearly ready for harvesting. Looking at the question from any point of view, it seems to us that the claim of the Mirasidars to a preferential right in respect of their double crop lands is established. They are also entitled to take water to the single crop lands in the three other blocks in preference to the Kaipath lands.
6. The learned Government Pleader suggested that, whatever may be the right of the Mirasidars to the exclusive use of the Kasam water, the tank water should be equally distributed. His contention was that when the water falls below the fourth sluice, all the sluices in the tank should be kept open and that no attempt should be made to shut any of these sluices with a view to taking more water through the fourth sluice. If we accede to this contention, it would result in denying the preferential right which we have held that the Mirasidars possess. We, therefore, think that the Subordinate Judge, who has written a careful judgment, has come to the right conclusion on the question. The only modification that we think necessary to make in his decree is to define more precisely the meaning of the expression 'in times of scarcity.' In order that there may be no future disputes, we substitute the words 'when the water goes below the fourth sluice' for the words 'in times of scarcity' in line 11 of page 14 in the decree of the Subordinate Judge. In other respects we dismiss the appeal with costs. We also dismiss the memoranda of objections with costs of the Secretary of State. The order of the Subordinate Judge, directing that non-Mirasidars should receive their costs from the Mirasidars who are in turn directed to receive some costs from the non-Mirasidars, would lead to difficulties. We think, under the circumstances, that the Mirasidars and non-Mirasidars should each be directed to bear their own costs in the Court below. The order as to costs in favour of the Secretary of State will stand. Subject to the above modification the appeal is dismissed with costs of the Mirasidar respondents.