Sundara Aiyar, J.
1. The District Judge has found that in Original Suit No. 211 of 1894 the plaintiffs' right to one-fourth of the water flowing through Yellareddi Kalva into the Anumakondapallem Tank was established; but he has held that the question of the plaintiffs' liability for the payment of the water-tax complained of in this suit is not barred as res judicata. He is, no doubt, right in saying that in Original Suit No. 211 of 1894 the liability of the plaintiffs to pay water-cess was not in question. But their exemption from liability must be held to follow from the right that was established in their favour in that suit. Their claim there was that they were absolutely entitled to a fourth of the water irrespective of the use that they made of it, and not merely to water necessary for irrigating any particular lands belonging to them. They complained of the opening of a vent which affected their right to a fourth of the water of the tank. The Government admitted their right to the use of one-fourth of the water. It was expressly found in that case that the right claimed by the plaintiffs was established, as the plaintiffs proved their immemorial enjoyment of a fourth of the water. A legal origin must be presumed for the exercise of the right claimed by the plaintiffs. The proper presumption is that there waft some grant or contract entitling the plaintiffs to a fourth of the water. Mr. Grovindarahava Aiyar contends on behalf of the Government that, even if the plaintiffs' ownership to fourth of the water be held to be proved, that circumstance would not be sufficient to entitle them to claim exemption from the payment of water-cess under Act VII of 1865 as amended. He argues that an engagement between the Government and the plaintiffs entitling them to the exemption must be proved. But if there was a contract or grant by virtue of which the plaintiffs became entitled to a fourth of the water, it would be unreasonable to suppose that the Government would still be entitled to levy a cess as remuneration for the water, the right to which had already become vested in the plaintiffs before the enactment of the Water-cess Act. The cess imposed under Act VII. of 1865 was intended to compensate the Government for the use by holders of land of water belonging to it, or conserved by works constructed by it by empowering them to levy a remuneration from those using the water for irrigation; where such remuneration is otherwise paid by the landholder, that would be sufficient to establish an engagement of the kind referred to in the proviso to Section 1 of the Act. Thus, where land in the possession of an owner is classified as wet and wet assessment is levied from him, it is taken that the wet assessment itself includes all payment due to Government for the use of the water required to irrigate the land, and this constitutes an engagement which would exempt the owner from the further payment of any cess under Act VII of 1865.
2. There can be no doubt that, when for some consideration or other, or it may be without consideration, grant is made by the Government of a particular quantity of water or a certain definite fraction of the water of a tank to a person, irrespective of the use he might make of it, the proper presumption is that it is a free grant without claim to any kind of payment for the water. This was the principle adopted in Maria Susai Mudaliar v. Secretary of State for India in Council 14 M.L.J. 350. In Secretary of State for India v. Swami Nautheswarar 6 Ind. Cas. 199 : (1910) M.W.N. 495 the learned Judges who decided the case held that a grant of water by Govern-ment must be taken to mean a grant without any claim for future payment for the water granted. Mr. Govindaraghava Aiyar urges that the actual decision in the last case is in his favour. But this argument cannot be accepted. There it was held that, when a portion of a taruvai belonging to a proprietor received water from a Government source, the mere fact that he was entitled to all the water that flowed to his portion of the taruvai after it reached it without obstruction by any one would not entitle him to exemption from the payment of cess for the water which was found to have been derived from a Government source there was no grant of the water which flowed into his portion of the taruvai. His right was merely to the free flow of water to the taruvai without obstruction. It must therefore be held that the plaintiffs' right to a fourth of the water established in the previous litigation entitles the plaintiffs to exemption from payment of water-cess. I he decree of the District Judge must be reversed and that of the District Munsif restored with costs here and in the lower Appellate Court. The Government will make the payment directed under this decree within four months from this date. Second Appeals Nos. 507 and 538 follow. Ihe memoranda of objections are dismissed.
Sadasiva Aiyar, J.
3. From a perusal of the order of remand, I am of opinion that it was assumed on that occasion that, if the judgment m Original Suit No. 211 of 1894 decided that the plaintiffs were entitled absolutely to the use of a fourth of the water of the plaint tank of Anumakonda, it carried with it an exemption from liability to pay any water-cess to Government for the use of that water. The order contains the following sentences: 'if the effect of that judgment' (i.e., the judgment in Origin-a Suit No. 211 of 1894) 'be that the plaintiffs were absolutely entitled to the use of a fourth of the water of the tank, irrespective of the use they made of it, is possible that that judgment may make the question, raised m the present suit, of the plaintiff's absolute right to one-fourth of the water res judicata. We do not wish to decide this matter now, as no issue was framed on the question apparently because the plaintiffs did not put forward that judgment as constituting the matter in dispute here res judicata. We think it desirable that an issue should be framed to try the question. We accordingly frame the following issue: 'is the question of the plaintiff's absolute right to one-fourth of the water of the Anumakonda tank without liability to pay any water-cess res judicata in consequence of the judgment of the District Munsif s Court of Kavali in Original Suit No. 211 of 1894 and of the Subordinate Judge's Court of Nellore in Appeal Suit No. 171 of 1896 (Exhibits C, Q and K).'' I am, holding the above view as to what we intended in the order of remand, inclined to hold that Mr. Govindaraghava Aiyar is not entitled to argue that, even if the former judgment established the absolute right of the plaintiffs to the ownership of a fourth of the water, it did not also establish any right to exemption from liability to pay water-cess for that one-fourth of the water. Assuming, however, that he is entitled to argue that question, my mind is clear that the Government is not entitled to charge water-cess for the use of the water which does not belong to it. Mr. Govindaraghava Aiyar, however, with his usual subtlety of argument, contended that the decision in Secretary of State for India v. Swami Nautheswarar 6 Ind. Cas. 199 : (1910) M.W.N. 495 and the words of Section 1 of Act VII of 1865 gave the Government the right to charge water-cess even for the use of the water which belongs to the plaintiffs. I do not mean to deny that the Government by Act VII of 1865 in its amended form took the power to charge water-cess in some instances for water which, according to the ordinary principles of jurisprudence, might be held to belong to a landowner or ryot, provided it had belonged to the Government and it became the landowner's water only through a technical rule of law. When water of one land percolates or overflows into another land, the water so collected becomes (according to the technical rules of law) the property of the owner of the land into which it has so percolated or over which it has flowed. The Government thought that, when their water so percolated or overflowed, it was hard upon Government to lose the right to tax the use of such water, simply because they were unable owing to natural difficulties to retain their water or regulate the distribution of their water as they wished. It was considered that, as the ownership in such water had passed to the ryot or landholder (into whose land the water had percolated) through no fault of Government, it was inequitable to deprive Government of the right to collect the cess for the use of such water by the lucky man into whose land it had gone. But to extend this extraordinary power of taxing another man's water to cases where the water admittedly belongs to the landowner, not on account of its having been Government water which percolated or overflowed against the will of the Government into the land of the ryot, but belongs to him absolutely by grant, or agreement or engagement (express or implied) is not only patently inequitable but, I think, is against the clear intention of the Legislature and of the Government; and I do not think that the words of the Act constrain us to hold that the Government is entitled to levy such an inequitable assessment.
4. As regards Secretary of State for India v. Swami Nautheswarar 6 Ind. Cas. 199 : (1910) M.W.N. 495 I find after looking through the printed papers that in that case the water of the taruvai (swampish water spread) which was in question, was not intended for irrigation purposes at all. The sheet of water in that case was formed of drainage surplus waters and the right of fishery in that tank belonged in the proportion of three-flfths and two-fifths to the Government and the landholder respectively. In such a case, the water belonged to Government, as the whole of it first flowed over the three-fifths area belonging to the Government and only then passed on to the landholder's two-fifths area and even though a portion of the water afterwards so spread over the two-fifths of the area which belonged to the inamdar and would have become his property according to the ordinary principles of jurisprudence, the right of the Government to levy a cess for the use of that water which came upon the inamdar's land after passing through Government land was preserved or rather created by the Statute; and it was held that that right could not be taken away by the mere fact that Government water (consisting of extraordinary flood water flowing through a Government channel) had so afterwards come upon the land of the inamdar or 'landholder or become mixed up with the water that belonged to him. Without questioning the correctness of the decision in Secretary of Stats for India v. Swami Nautheswarar 6 Ind. Cas. 199 : (1910) M.W.N. 495 I must say that I am not prepared to go one inch beyond the rule laid down in that case, as I am of opinion that it is impossible to give a wider right to Government on the most favourable construction which can be placed on the words of the Act in favour of the Government.
5. In the present case one-fourth of the water of the tank absolutely belongs to the landholder by reason of the finding in the former suit and such one-fourth share is not proved to have ever belonged to Government, and 1, therefore, hold that water could not be taxed under the provisions of Act VII of 1865 unless it had belonged to Government and had ceased to belong to it owing to its having percolated or overflowed into the land of the landholder. In other words, the water must have been the water of the Government before it ceased to be such through the percolation or overflowing or through its discharge into the landholder's land or tank, etc. I, therefore, agree with the decree that is proposed to be passed by my learned brother.
6. Second Appeals Nos. 537 and 538 follow. The memoranda of objections arc dismissed.