1. The plaintiffs, the appellants, hold survey fields Nos. 46, 63 and 64 of Tirumananjeri village. Of the defendants, the respondents in the two second appeals, the first to ninth and eleventh defendants are ryots, whose alleged interest in the irrigation, the subject of dispute, the Secretary of State, the tenth defendant has protected by the issue of orders in the Revenue Department. It is admitted that the channel immediately adjacent to the plaintiffs' lands is the Mylan channel, belonging to the Cauvery system. But, as the plan, (Exhibit A) shows, there is a short distance to the west the Mangudi Channel in the Vikramanar system. The plaintiffs contended that they were entitled to take water by a kanni or subsidiary channel, running east from Mangudi to Mylan and so to their fields, though they would obviously affect the supply from the former, on which first to ninth and eleventh defendants depend, by doing so. The channels are artificial and there is therefore no question of natural right; nor is any grant relied on by plaintiffs. Their case, in favour of which the District Munsif found, was based on prescription, that is, on Section 15 of the Indian Easements Act, The lower Appellate Court has held that no prescription was established.
2. I reserve two objections based on exclusion of evidence, and, subject to them, consider what the lower Appellate Court has found on the facts and what questions are open for argument in second appeal. The points for decision are set out clearly and, it is not disputed, comprehensively in the judgment before us and the findings on them are that (1) the Mylan channel was plaintiffs' recognized source of irrigation, (2) the kanni is not shown to have been in existence before 1888, (3) plaintiffs have since then taken water by it, and (4) such taking created no prescriptive right, because it was not proved to have been open, peaceful or uninterrupted. No objection has been made to the first of these findings. Against the others, it is urged generally that they are vitiated, because they are based on an adoption of the District Munsif's treatment of the oral evidence, which has been misunderstood, inasmuch as one sentence of his judgment has been extracted and regarded as conclusive, though a conclusion in the opposite sense was eventually reached. This is not sustainable. For in fact, the District Munsif, after disparaging plaintiffs' oral evidence in the sentence extracted and others, reached his finding with the aid of the documents; and the lower Appellate Court has not professed to adopt that finding or more than the sentence referred to, but has reached its conclusions independently. Those conclusions, so far as they are of fact, must, therefore, be accepted. It is with reference only to the fourth that further argument in second appeal is legitimate. In short, the result is that, the burden of proof of such a user as Section 15 of the Indian Easements Act contemplates being on plaintiffs, they have adduced evidence calling for consideration with reference only to their user from 1888 until 1907, when the Revenue authorities first forbade it. The decision must, therefore, turn on the nature of the acts of user found proved by the lower Appellate Court, as fulfilling the requirements of the law, and the sufficiency of the period, over which they extend.
2. The plaintiffs' case depended on oral evidence, one document, Exhibit B, and the presumption that, as the kanni was in existence in 1888, it must have been in use from then onwards. On the oral evidence, the lower Appellate Court was entitled to form and, as already observed, did form its opinion, which is final. It no doubt has not referred separately to the evidence of the existence of remnants of a masonry structure on the ground in 1906; but that evidence was indefinite and there is no reason for doubting that it was considered. As regards Exhibit B, there was ground, referred to in the judgment, on which the lower Appellate Court could treat the mention of a kanni in it as open to suspicion. It is urged that there was no evidence to support the conjectural explanation that it was mentioned through the connivance of the village officers. But there was such evidence in the statement of second plaintiff that first plaintiff was a District Board Member, a Municipal Councillor and owner of large property and therefore a person, whom the village officers might be ready to oblige, and in the evidence (Exhibit G) that the village munsif concerned, plaintiffs' witness No. 6, has undergone punishment in consequence of his partiality for plaintiffs in this affair. As regards the lower Appellate Court's refusal to make the presumption proposed, it was for it to estimate the reasons for and against doing so; and it has not been shown that clear reason was available on plaintiffs' side which it; neglected. The further facta, which it detailed, the absence of reference to the kanni in accounts, in which it would naturally have been referred to, and the indirect character of plaintiffs' attempts to assert their right, when it was disputed, ending in their obtaining a recognition of the existence of a sluice for the kanni from a Public Works subordinate without authority to give it, were legitimate grounds of decision. The suggestion here that the mention of Mylan as the source of plaintiffs' irrigation in the accounts in question, Exhibit XIV, does not negative plaintiffs' right to the kanni, because it in fact brought water into Mylan is unsound, because Exhibit XIV specifies not only the channel, but also the irrigation system, which serves each field, and does not specify against plaintiffs' fields the Vikramanar system, to which Mangudi belongs. In these circumstances it cannot be said that the lower Appellate Court has failed to consider plaintiffs' case or considered it on erroneous principles. Its finding that they did not prove an open, peaceful and uninterrupted user from 1888 is one of fact, to which no valid objection has been made good; and it must, therefore, be accepted. It entails that plaintiffs have established no prescriptive right.
3. Argument was attempted also with reference to the period of user, which plaintiffs were bound to prove, the assumption in the lower Courts having apparently boon that sixty years were required. Here it is suggested first, that twelve years would be sufficient, because plaintiffs' masonry sluice above referred to stood on Government land, the border of the Mangudi channel, not on their field and they are in fact claiming a declaration of their right to possession of its site; but this is unsustainable, since their plaint contained no such allegations or prayer. They argue next, that (1) they are bound to prove user for twenty years only, the necessary period against a private party, not sixty, and (2) if sixty years is the period, they have proved a user for a sufficient portion of it to transfer the burden of proof in respect of the remainder. As regards (1) they rely on The Secretary of State for India v. Kola Bapanamma Garu I.L.R. (1896) Mad. 165. But that was a suit for possession of land, and it was held only that the sixty years' period under Article 149 of Schedule 1 of the Indian Limitation Act applied to suits by the Secretary of State, not to suits against him. That decision does not affect the duty of plaintiffs here to prove sixty years' user which is imposed by the last clause of Section 15 of the Indian Basements Act, with reference to the transfer of the burden of proof, Sri Raja Chelikani Rama Rau v. Secretary of State for India I.L.R. (1910) Mad. 1, Krishna Aiyar v. The Secretary of State for India I.L.R. (1910) Mad. 173, and Venkatarama Iyer v. The Secretary of State for India in Council I.L.R. (1910) Mad. 362, are relied on. But those cases related to possession and are not in point, and here even if plaintiffs' continuous enjoyment as of right had been established for the period from 1888 to 1907, the date (as appears from Exhibit IX) of the Deputy Collector's order, referred to in the plaint as forbidding it, plaintiffs' argument would still be untenable, since they would not have completed the period of prescription necessary against a private individual. It is then maintained that the burden of proof can be transferred by proof of a shorter period of enjoyment than that necessary for complete prescription with reference to Ponnusawmi Tevar v. The Collector of Madura (1869) 5 M.H.C.R. 6, and Rajrup Koer v. Abul Hossein I.L.R. (1881) Cal. 394. But in them the presumption of a lost grant was the basis of the decision, and here that presumption is negatived by the absence of reference to any grant or its recognition in the records, where it would naturally occur, the paimash, land register, and diglott, Exhibits XV, XIV and XVI. There is, therefore, no reason for dissent from the lower Appellate Court's decision on this ground. The remaining grounds of appeal argued relate to the exclusion of evidence by the District Munsif.
4. The first complaint is that the supervisor who gave the permission, Exhibit I, for the rebuilding of the plaintiffs' sluice, was not examined. The facts alleged ore that he attended the Court on several occasions, that eventually for one hearing he could not attend as he was ill, and that plaintiffs then on 8th September 1911, applied for an adjournment to secure his evidence. On that day defendants had closed their case, after examining witnesses. Plaintiffs had closed theirs on 18th August 1911, so far as appears, without any reservation regarding the supervisor and without insisting on his examination. In these circumstances the District Munsif was right in refusing to adjourn at the stage, at which he was asked to do so.
5. The other point taken is of wider importance and is not covered by Indian authority. It is that the District Munsif should have insisted on the production of a report by the Supervisor made to the Sub-Divisional Officer after inspection of the spot, which plaintiffs summoned and in respect of which the tenth defendant, the Secretary of State, claimed privilege under Sections 123, 124 and 162 of the Indian Evidence Act, the Chief Engineer stating that public interests would suffer by its production. The District Munsif allowed the objection, when it was made at the hearing for production of documents, with reference to Section 124 of the Indian Evidence Act, Before evidence was taken, the High Court refused to ineterfere with this ruling by way of revision in Nagaraja Pillai v. Vythinatha Iyer (1911) 2 M.W.N. 869. The Court declined to say that the District Munsif erred in holding ' that the communication in question being from a subordinate officer, was prima facie of a confidential nature.' It observed that the petitioners, the plaintiffs, had not asked the District Munsif to take evidence on the point and that the latter's refusal to inspect the document in order to decide it was not shown to have been a wrong exercise of his discretion. On this plaintiffs contend that (1) this Court's order left the question whether evidence should be taken open and the District Munsif erred in disallowing the examination of plaintiffs' witness No. 14 as to the confidential nature of the document, and (2) the document, not being in fact a communication in official confidence, contemplated by Section 124, should have been exhibited. Contra, reliance is placed on Section 167 of the Indian Evidence Act.
6. The effect of this Court's order can be dealt with shortly. It certainly did not amount to a direction or authorisation to the District Munsif to take evidence; and it contained nothing repugnant to the conclusion, which has been pressed on us, that, if plaintiffs had wanted to adduce evidence, they should have asked leave to do so, when documents were being received and before the order refusing to receiving the document now in question was passed. It is, moreover, not alleged that any notice was given to the tenth defendant of the renewal of the attempt to get it exhibited during the trial, and in the absence of any, that attempt was open to grave objection. And further, even if the claim to raise the question on evidence was not made irregularly, it is contended that the District Munsif was not bound to take any, if he could decide without it, as his order of the 5th August 1910 shows that he did, that the document was a communication in official confidence, whether that decision was well founded is the question raised by plaintiffs' second contention.
7. The Indian Law as to Government privilege is contained in Sections 123, 124 and 162 of the Indian Evidence Act. Of these, Section 124 is relied on here and need be considered, plaintiffs' contention regarding it being that the words 'communications in official confidence' mean and include only what in official parlance are known as confidential communications, that is, communications which in virtue of some special mark on them or some special direction by their author are to be kept with particular secrecy, and do not include official communications generally, to which only the reticence, expected by every employer of his servants, is applicable. There are, it is contended, two categories, ordinary official communications and communications in official confidence; and it is only to the second that Section 124 should be applied, the report now in question belonging to the first.
8. Plaintiffs have given no valid reason for this interpretation of the section in the shape of authority or otherwise. For in Beatson v. Skene (1860) 5 H. & N., 838, the existence of any general rule that 'all the public documents, including communications to heads of departments, are to be produced and made public, whenever a suitor thinks that his case requires such production' is negatived. On the other hand, it does not appear that their contention represents either certainty or convenience. It is clear that the dominant intention in the section in to prevent disclosures to the detriment of the public interests, and it is settled in this Presidency by Venkatachella Chettiar v. Sampathu Chettiar I.L.R. (1909) Mad. 62, that the decision as to such detriment is to be with the officer, to whom the communication is made. It is then impossible to reconcile the plaintiffs' interpretation with these two conclusions. For that interpretation would make the conduct of the author of the communication, his giving or failing to give (perhaps through caprice or negligence), an indication of its confidential character, decisive and enable it to prevail over the opinion of the recipient on the really important point, the effect of the disclosure on public interests. It would be wrong to sacrifice the two definite conclusions reached as to one portion of the section to a doubtful construction of the remainder. That construction, moreover, is not required by the wording. For it rests on the special use of the word 'confidential' in official parlance, which there is no reason for assuming that the Legislature had in mind. An easier and more probable explanation of the phrase 'official confidence' is afforded by comparison with the references to 'professional confidence' in connection with the privilege of legal advisers, as for instance, at Ameer Ali and Woodroffe's 'Law of Evidence', First Edition, page 794, Taylor on Evidence, Tenth Edition, page 650, and in Goodall v. Little (1885) 20 L.J. Ch. 132 and Ex parte Campbell, In re Cathcart (1870) L.R. 5 Ch. 703, quoted in Framji Bhicaji v. Mohansing Dhansing I.L.R. (1894) Bom. 263. It is true that a pledge of secrecy is referred to in the case last cited. But that reference in no way affects the utility of this comparison for the present purpose or provides an analogy supporting the plaintiffs' argument: for such a pledge is mentioned as material with reference to preliminary and collateral matters, which are outside the general privilege and have no resemblance to the report at present in question. In these circumstances, consideration of the section and of the consequences of the interpretation, for which the plaintiffs contend, lead to the conclusion that the words 'communication in official confidence' import no special degree of secrecy and no pledge or direction for its maintenance, but include generally all matters communicated by one officer to another in the performance of their duties. The question whether such communication was made in the course of such performance is for the Court to decide.
9. This view is at least consistent with the decisions. The order of this Court (already referred to) in the Revision Petition in the present case does treat the District Munsif's ruling as being that the report was a 'communication of a confidential nature.' But it does not appear that the plaintiffs' present contention was put forward, if at all, with any fulness, and it was not necessary if it was, to deal with it in order to dispose of the petition. In Venkatachella Chettiar v. Sampathu Chettiar I.L.R. (1909) Mad. 62 already referred to Section 124 was considered with reference to Income Tax returns made to a Government office. As the Court held that there was no basis for the plea that confidence of any kind was in question and that the Income Tax Act and rules justified none, the decision is inapplicable to the case of a report by one officer to another. The English cases must be applied with caution because, they do not statedly distinguish between the principles embodied in Sections 124 and 163 of the Indian Evidence Act. Reference may therefore be limited to those, in which the necessity for a preliminary decision by the Court as to the official character of the communication in question, might have arisen. The decision, it will be found, did not turn on the degree of confidence involved or on the existence of any specially prescribed confidence between those concerned. Thus in Stace v. Griffith (1867) 92 P.C. 420, there is nothing in the report to indicate that any special plea as to the confidential character of the communication was considered and the issue is stated as being only whether it was official. So also in the Horatii and Churiatii. Skene (1860) 5 H. & N., 838, already referred to. In Hughes v. Vargas I.L.R. (1893) 561, there was nothing to show that the document under discussion was confidential in any special sense; in fact, it appears from the report to have been seen by the clerks in the public office concerned; and again the judgment is based not on that or any other fact bearing on the degree of confidence between the writer and recipient, but on the injury to public interest, certified to be involved. The result of the argument from authority is no doubt merely negative. But it is consistent with the decision already reached directly. The decision must, therefore, be that the District Munsif was right in refusing to insist on the supervisor's report being produced.
10. It is also urged with reference to Section 167, Indian Evidence Act, that the report would not have varied the decision if produced and therefore cannot be ground for ordering a new trial. We have not been told what matter of importance to plaintiffs the report is expected to contain or that it contains anything except the results of the supervisor's inspection of the spot about two years after the dispute began and I should therefore, if necessary, be inclined to refuse to interfere on this ground also.
11. I would dismiss the Second Appeals with costs.
12. I have had the benefit of reading my learned brother's judgment. The plaintiffs' suit is in effect for a declaration that they are entitled to conduct water from the Mangudi channel (which has its source in the Vikramanar river) to the Mylan Kanni (a channel forming part of the Cauvery irrigation system) by a conduit called the Mudavan Kanni; and the plaintiffs ask for an injunction restraining the defendants from interfering with the conduit. The right claimed is an easement falling within Section 4, illustration (c), of the Indian Easements Act; the Mangudi channel takes the place of 'B's stream' in the illustration, and the ' fountains in the garden attached to the house' here replaced by the Mylan channel which has been found to be the source of irrigation to which the plaintiffs are entitled as the owners of the lands referred to in the plaint.
13. The District Munsif held that the plaintiffs were entitled to the reliefs claimed and decreed accordingly and his decision was reversed in appeal. We have now to decide whether the lower Appellate Court's decision is vitiated by any such error as requires our interference in Second Appeal.
14. The first point determined by the lower Appellate Court is that the plaintiffs' recognized source of irrigation is the Mylan channel. This merely reduces the plaintiffs' case more definitely to the basis I have mentioned: a right that might have been claimed independently of an easement acquired by prescription is found not to inhere in the plaintiffs. Their rights therefore could only be under an easement acquired by prescription.
15. For this purpose, it was necessary to determine the point of time, since when the right has been claimed as an easement, and has been peaceably and openly enjoyed by the plaintiffs claiming title thereto as an easement and as of right, without interruption. If the period during which the right has been so claimed and enjoyed is not less than sixty years it has become absolute and the plaintiffs must succeed (The Indian Easements Act, Section 15, paragraphs 3 and 4 and the last paragraph).
16. The Subordinate Judge has found that the conduit in question existed in 1888, and it must have come into existence a little before that, but that it has not been proved that the rights to have the conduit has been exercised openly, peacefully or uninterruptedly.
17. This finding is conclusive against the plaintiffs. It has however been attacked on several grounds which may be dealt with under three heads.
19. First, it was argued that the Subordinate Judge did not consider or did not appreciate for himself the oral evidence but mistook the District Munsif's appreciation of it and adopted the view which be mistakenly considered to be that of the District Munsif. This argument is supported merely by seizing hold of an isolated sentence in the Subordinate Judge's judgment, paragraph 11, It seems to me that he appreciated the oral evidence for himself and formed an independent opinion opposed to that of the District Munsif.
20. The next argument has reference to the presumptions of fact which the learned Subordinate Judge (it is contended) disregarded. There was evidence, however, on both sides, and to the arguments adduced before us under this head the remarks from Bowen, LJ.'s judgment set out in Hall v. Venkatakrishna I.L.R. (1890) Mad. 394, are a sufficient answer. To accede to the arguments of the appellants would be to decide in Second Appeals questions of fact by purporting to lay down on whom the burden of proof lay in a given state of facts or evidence. The question which a Court sitting in Second Appeal has to decide is thus stated by Lord Kinnear in Folkstone, Corporation v. Brockman (1914) A.C. 338: 'The question seems to be whether it was still open to the tribunal to draw a further inference of fact one way or the other, or, whether the necessary conclusion was already fixed by a rule of law.' The question before the House of Lords then was whether the fact of dedication to the public of a highway had been proved. Lord KINNEAR points out the difference in the words of Parke, B., between 'conclusive evidence' and 'evidence on which those who have to find that fact may find that there was a dedication by the owner.' 'I think,' ha says later, 'it is fallacious to assume dedication on a partial view of the evidence, and only after that has been done to inquire whether conflicting facts are strong enough to dislodge a conclusion already reached' (page 354). 'The question is one of fact turning upon probabilities of conduct, which cannot be estimated by antecedent rules of law' (page 356). 'If the strength of the presumption can be increased or diminished according to circumstances, it is for the jury to determine the weight which should, be given to it in any particular case (page 357). The course of proceeding which the Court of Appeal followed in the case and which Lord Kinner described as fallacious is thus referred to by Lord Dunedin.' 'They fasten upon certain of the series of separate conclusions of fact which the justices set out. These findings say they amount to a finding of user by the public. User by the public raises a presumption of dedication, and in the other facts found by the justices there is nothing sufficient to rebut the presumption' (pages 374 and 375).
21. 'With deference to the learned judges, I do not think that is the proper way to approach the question and its defect, to my mind, consists in regarding 'user' as an inflexible term, which if found to apply, can lead to only one legal result. User is evidence, and can be no more of dedication. The expression that user raises a presumption of dedication has its origin in this, that in cases where express dedication is out of the question, no one can see into a man's mind, and therefore dedication, which can never come into being without intention, can, if it is to be proved at all, only be inferred or presumed from extraneous facts. But that still leaves as matter for inquiry what was the user, and to what did it point. And this must be considered, not after the method of the Horatii and Churiatii, by taking a set of isolated findings, saying that they presumably led to a certain result, and then proceeding to see if that presumption can be rebutted, but by considering the whole facts the surroundings which lead to the user, and from all those facts, including the user, coming to the conclusion whether or not the user did infer dedication' (page 375). He concludes, ' unless the evidence points all one way,' ' in the long run it all comes to this, which is the more probable alternative?' (page 377),
22. It seems to me that for similar reasons, and as sitting in this Court, I have no jurisdiction to consider questions of fact, it is beyond my province to consider whether in appreciating or weighing the evidence, the lower Appellate Court has applied the preaumptions referred to in Sri Raja Chelikani Rama Rau v. The Secretary of State for India I.L.R. (1910) Mad. 1, Krishna Aiyar v. The Secretary of State for India I.L.R. (1910) Mad. 173 and Venkatarama Iyer v. The Secretary of State for India in Council I.L.R. (1910) Mad. 362 and The Secretary of State for India v. Kota Bapanamma Garu I.L.R. (1896) Mad. 165 and Ponnusawmi Tevar v. The Collector of Madura (1869) 5 M.H.C.R. 6 in the same manner as I should have done if I had to adjudicate upon the facta. I have no jurisdiction to appreciate for myself the weight to be given to the circumstances on the one side and the other. The legislature has given to the lower Appellate Court the right to-pronounce finally on these questions.
23. In the cases relied upon by the appellant, adverse possession for 20 years or more against the Government had been proved, and the Government had not been able to show that any title in. themselves subsisted in the present case; however, the lower Appellate Court has considered the appellant's evidence insufficient to prove that the easement has ever been enjoyed openly, peaceably and uninterruptedly. The appellants desire us to fasten upon one piece of evidence and ' after the manner of the Horatii and the Churiatii' to challenge the Government to bring forward any piece of rebutting evidence.
24. Lastly, it was argued that the lower Appellate Court wrongly excluded evidence sought to be adduced by the appellants. The learned vakil for the appellants can however give us very few particulars about the document alleged to be improperly rejected and as to the effect it would have on the evidence. It appears that it is a report made on 31st August 1908: when pressed the learned vakil for the appellants could only say that it might possibly point to there being earlier records which might be discovered by the clue so obtained and which might turn out in, favour of the appellants; Section 167 of the Indian Evidence Act precludes interference by a Court of Appeal on such hypothetical grounds. It is unnecessary therefore to deal with the question whether any evidence on behalf of the plaintiffs to show that the document was not a communication made in official confidence was improperly rejected. But I entirely agree with my learned brother that the question whether or not a communication is made in official confidence cannot depend solely on the question whether it is marked 'confidential.'
25. I agree therefore that the second appeals should be dismissed with costs.