1. I have had the opportunity of reading my learned brother's judgment with which I substantially agree. I will only supplement it by some additional remarks of my own.
2. The suit was brought by the plaintiff challenging the order of Mr. Lionel Davidson, dated 21st April 1910 Ex. D. There is no doubt that the plaintiff's village Sethukuvoithan is a riparian village as it abuts the Thambaraparni river. This was not denied before us and is conceded by the Dist. Judge. Vide para. 2 of his judgment. The plaintiff's allegation was that he originally enjoyed his riparian rights by drawing off water through a sluice at the spot A. The Dist. Judge discusses the existence of sluice A at p. 6 of his judgment. At p. 7 he refers it as the plaintiff's alleged channel from A, and in the middle of p. 6 he states:
The next question for consideration is whether the plaintiff has made out his claim to have filled his own tank Sethukuvoithan tank from the river through the sluice A.
3. It is not clear to me why the Dist. Judge has discussed the existence of sluice A and the plaintiff's right to take water through it. In para. 5 of the plaint it was alleged that the lands of Sethukuvoithan were originally irrigated by means of a sluice on the bank of the river marked A in the sketch plan produced herewith, a cross dam across the river being put up whenever necessary etc. This allegation in para. 5 of the plaint was not denied in the written statement of defendant 1. All that we have got in para. 13 of the written statement in which defendant 1 does not admit any of the allegations in the plaint not expressly admitted herein and the written statement of defendants 2 to 10 says that the allegation in the plaint that at one time Sethukuvoithan received its supply from the river at a point higher than the A sluice is not true. This statement, while denying that the point A was higher than the point where Athur village had its sluice, alleged that the higher position was lost by the construction of the Athur sluice at C. This, no doubt, is correct. The original Athur sluice B was lower than A. But the new sluice C was higher than A. But all this, far from denying the existence of sluice'A, seems to amount to an admission of its existence. We must take it, therefore, that the plaintiff as a riparian owner was drawing water through the sluice at A. It may be that his tank was in a ruined condition between 1833 to 1838 as the Dist. Judge hotes in para. 12 of his judgment. But even if the tank was in a ruined condition the channel was not. Between 1838 and 1851 both the channel and tank were mentioned. In 1865 the tank was mentioned as rain-fed in Ex. H. In 1868 Ex. I mentions an old tank. I do not agree with the Dist. Judge's construction of the word 'old' as meaning ruined. But assuming that the village of Sethukuvoithan was not drawing water from the river in 1865 and 1868 and all the wet ayacut lands of 228 acres single crop and 170 acres double crop got their supply of water by rain it does not follow that the village has lost its riparian rights. It must be remembered that riparian right is a natural right and is not lost by non-user. Not until some other person acquires a right of easement to substantially diminish the water available to the riparian owner can the riparian right be affected or lost. Now, though the new sluice for Athur village was opened at the point C, and it is immaterial when this new sluice was opened at the point, there is absolutely no evidence in this case to show that the water drawn off by Athur village from the point C through the channel C G was of such a quantity as to substantially diminish the flow of water down the river and as to injuriously affect the riparian right of the plaintiff's village. In the absence of such evidence, though it is true as mentioned in para. 3 of the written statement of defendants 2 to 10, that Sethukuvoithan practically surrendered its higher position, if any, by the construction of the sluice C, it cannot be said that the village of Athur has acquired an easement so as to affect the riparian right of the plaintiff's village. This state of things continued up to 1872. This covers the first two stages of my learned brother' s judgment.
4. In 1872 the Government constructed the Srivaikuntam anicut higher up above the point C. The substantial question in this case is, what are the relative rights of the parties after the construction of this anicut in 1872, and after the enjoyment by the parties of such water supplies as they had during all the intervening years from 1872, up to the date of the suit. This question is the subject of issues 1, 5 and 13. It may be that one or other of the parties has alleged a higher right than it possesses but such extravagant claim does not prevent us, while rejecting the higher rights claimed, from defining the exact right to which we find he is entitled, and granting relief on that basis. I have already observed above, that up to 1872 the plaintiff has not lost his riparian right. There was nothing to prevent him from repairing the sluice A and the channel which led the water from the sluice up to his tank and thus make his tank not only a rainfed tank but also a river-fed tank. When the Government was constructing an anicut in 1872, the Government had no right by the construction of such an, anicut to substantially diminish the flow of water down the river so as to affect the riparian rights of riparian owners further down including the plaintiff: vide Section 7, Easements Act, and illustrations to it. If the Government actually constructed an anicut in 1872, in such a way as to deprive the plaintiff of his usual supply of water for the lands of his village and such a stage of things continued for 20 years without protest or suit by the plaintiff, the Government could have acquired an easement against the plaintiff. But what are the events that actually happened in this case. Though the case has been argued for a number of days before us the constant complaint of the Government and Athur ryots in the argument before us throughout was that the plaintiff's village never suffered from the works constructed by the Government, but, it was Athur village that was constantly complaining of insufficiency of water. It was for the sake of Athur and it is on the complaint of Athur ryots that Government had to modify the scheme of their works repeatedly. In 1872, they had an aqueduct, in 1877, a drop was introduced in the aqueduct.
5. In 1882, the aqueduct was dropped and a stone dam was constructed. In 1894, in the bund shutters were placed and in 1910, the order which led to the suit was passed. All these changes were introduced at the instance of and for the benefit of Athur village because it is that village that suffered and not plaintiff's village. In fact, from 1872 up to 1887, there was absolutely no complaint by the plaintiff's village. Their situation was very comfortable; they were getting what they wanted for Government had so constructed the works as to ensure the supply of the necessary quantity of water to which the plaintiff is entitled as a riparian owner. No doubt they diminished the supply of the water in the river by erecting an anicut, but what they cut off in one direction they gave in another. In 1872 they gave it by the aqueduct in the channel J K over the channel CG and so long as the plaintiff was getting the supply of water to which he was entitled, there was no scope for the acquisition of an easement. All the successive modifications from 1877 to 1910 were introduced because the situation was found a little too favourable to the plaintiff and somewhat unfavourable to the Athur ryots. Under such circumstances, how can it be said that the Government acquired an easement to injuriously affect plaintiff's riparian rights. For the first time in 1897, we find a complaint of the villagers of Sethukuvoithan in Ex. K, and a second time by Ex. K 2 in 1903. On these occasions they got what they wanted, that is, a supply of water necessary for their ayacut was ensured, and, it is immaterial to consider whether the orders which gave the relief to the plaintiff were duly authorized.
6. I agree with my learned brother that Mr. Whitbred's order cannot be got rid of as a myth. Ex. P and Ex. 0 refer to it and the latter states the number and date. These documents admit the existence of the order and the admissions were made by defendant 1's officers. It may be Mr. Whitbred's order cannot be said to bind Government, but we have got Ex. M. the order of an officer higher than Mr. Whitbred, namely, Mr. Lutman, Executive Engineer, an order which the District Judge has overlooked. It may be that the order of Mr. Nilkanta Sastri an officer of equal rank as Mr. Whitbred was oral and not written, but the fact remains that, whether these orders were authorized or not, the level at the bund M was kept at a height of 3 feet so as to ensure a supply of a good quantity of water to the plaintiff: vide deposition of D. W. No. 6, who says that from 1901 to 1910 the shutters were kept closed. Thus from 1862 up to 1910, the plaintiff ryots continually had the supply of water which they wanted and except for brief periods in 1897 and 1903 they had no occasion to complain. The Government, therefore, had not acquired an easement to diminish the supply of water to the plaintiff's village, and so long as their action is referable to pre-existing right in the plaintiff it seems to me to be an entire legal misconception to say that what the Government did was merely a matter of grace. The continuous supply of the necessary quantity of water to the plaintiff's village, from 1872 to 1910, must, if possible, be referred to a legal origin, vide Maharani Rajroof Koer v. Abdul Hossein  6 Cal. 394 and Rambhai Dabhai v. Vallaobhai Jhaverbhai A. I. R. 1921 Bom. 430 Only where no legal origin is possible that can be regarded as an act of grace. In the present case all the admitted facts of the case show that there was a legal origin to which it can be referred.
7. Up to now I have discussed the case on the footing that we must recognize the riparian rights of the plaintiff and we must see if the Government by their works have acquired a right of easement against the plaintiff. If they acquired no such right of easement the plaintiff's rights remain. Far from Government having diminished the supply of water to the plaintiff's village, we have seen that plaintiff was actually getting an ample supply by means of works constructed by Government. This seems to have been the actual object of Government in the works they have constructed. Four years before the actual construction of the anicut the proposal was discussed in a number of official papers the chief of which is Ex. 5-C. If this document made provision for the due protection of the supply of water to the plaintiff's village, it amounts to a grant of certain rights to the plaintiff through the Government water-works. In one sense it was not a fresh grant, for it was only an arrangement for ensuring for the supply of water to which the plaintiff was entitled by reason of his riparian right and not a grant of an additional right. It only changes the mode of supply; Ex. 5 C in para. 10 says:
At a distance of about half a mile, the branch channel crosses the Tambaraparni river channel, the latter being covered by an inverted syphon; then passing under the Tiruchendur Road, at about I1/2 miles further on, crosses by an aqueduct the old-Athur river channel and falls in the Sethukovoykal tank.
8. Sethukuvoykal is another name for the plaintiff's village Sethukuvoithan and the tank referred to here is the plaintiff's tank. At the end of the same sub-paragraph it refers to 'an ordinary sluice of irrigation in the Sethukuvoykal tank bund '. Now the Sethukuvoithan tank is prima facie a tank of the plaintiff and not of Athur villagers. Neither the Athur villagers nor the Government have any right to have their works through that tank. The works that were actually constructed are intelligible only on the footing that while Government and Athur villagers found it convenient to ,take a channel which was ultimately to supply water to Athur village through the plaintiff's tank, it was also to the advantage of plaintiff that incidentally their tank should be filled and supply water to the lands of their village. This is what Ex. 5 C says. That this was what was meant by 5-C is clear from Ex. 9 which in para. 14 says:
With provision for supplying Sethukuvoithan tank, its due share of water could be drawn off by Athur channel.
9. Lower down it says:
If the improvements proposed to channel and tanks be carried out, it will take allowing 20 cubic feet per second (allowing for loss and supply of Sethukuvoithan tank, etc).
10. The District Judge in the course of para. 12 at p. 8 of his judgment says:
From 1855, when the Srivaikuntam project was first mooted down to its completion in 1872, and afterwards until 1882 we have a series of documents and estimates prepared in connexion with it. But there is no reference at all to any provision of water as of right to Sethukuvoithan channel or tank.
11. In saying this he undoubtedly ignored Exs. 5-C and 9, 5-C being in the nature of a grant being a contemporaneous document which defined the, policy of the Government. Having ignored these two when he found a further admission of plaintiff's right in Ex. 10, he explains it away by saying that is due to apparent misunderstanding of the situation. This document was a proceeding of the Madras Government and was filed on the side of the defendants, was relied upon by the defendants and no suggestion was made before the Sub-Judge that there was any misunderstanding in passing the proceedings. It amounts to an admission on the part of the Government to the correctness of its contents and until any misconception is alleged and proved, it cannot be explained away. The learned Judge says that the document goes too far for the plaintiff's case and bears on its face the apparent misunderstanding of the situation. Again towards the end of the paragraph he says:
I think it is to be accounted for by the fact that Ex. 10 having been passed on a totally wrong view, the construction made under it was found entirely unworkable.
12. Earlier, he says:
The idea now first appears that the Sethukuvoithan tank is entitled to water of its own right.
13. Undoubtedly it was because the Government has no right by the construction of an anicut of its own to deprive the riparian rights of lower riparian owners and the only inference from the contents. of Ex. 10 was that the Government were anxious to protect the rights of non-ryot-wari villages like the plaintiff's village and it is because of that we find the statements which we actually find in Exs. 5 Clause 9 and 10. It is unnecessary to discuss this matter further.
14. It is, no doubt, true that the plaintiff overstated his case when he said in para. 6 of the plaint that the channel CG was opened for the benefit of the plaintiff' s village also. This allegation has not been proved. It is also true that the main object of the Government works was the benefit of the Athur village and the extension of its irrigation. A number of documents were referred to by the Government Pleader and the Advocate-General for the purpose of showing that whatever the Government did they did it for the purpose of giving preference to Athur. These documents show that as between Athur and other Government villages the preference was intended to be in favour of Athur. But they do not show that any rights of villages other than Government villages were intended to be adversely and injuriously affected and when we find as a fact that plaintiff's village was not injuriously affected up to 1910, we cannot attribute any intention to Government to so injure. The measure of the right to which the plaintiff is entitled is the anicut which they enjoyed throughout the last century, that is, 178 acres double crop and 221 acres single crop and he is not entitled to any relief more than what is necessary for the irrigation of these lands. Subject to this the defendants--the Government and Athur villagers -- are entitled to carry out such works as they like to extend the irrigation if they think proper provided they do not affect the right of the plaintiff as above indicated. As my learned brother observed, it is unnecessary to indicate the mode in which Government should ensure the supply of water for the plaintiff's lands to the extent above mentioned.
15. There is only one matter on which I wish to make an observation. It is said that the judgment of the District Judge amounts to a finding of fact and we have no power to interfere. I am unable to see what the fact is on which the finding was given. As I have already observed, unless the defendants show that they acquired an easement, the plaintiff's riparian rights remained. There is no finding by the District Judge that the defendants acquired such a right of easement. All that we have got in the case is that the defendants' works while diminishing the supply of water in the river have given, by way of substitution, a due supply of water in another direction. The only point that arises in the case, is, what is the proper inference to make from such facts? That is a question of law and not one of fact, and the legal inference is that the due supply from 1872 to 1910 was made in recognition of the legal rights of the plaintiff, and not out of grace. I agree with the order proposed by my learned brother.
Venkatasubba Rao, J.
16. The plaintiff is the Rameswaram Devasthanam and claims certain water rights in respect of the inam village mentioned in the plaint forming the Sethukuvoithan Division in the Trichendur taluk of the district of Tinnevelly. Defendant 1 is the Secretary of State for India in Council and defendants 2 to 21 are the ryots of a ryotwari village known as Athur. As the right claimed by the plaintiffs affects also the village of Athur, defendants 2 to 21 have been made parties to the suit.
17. The inam villages comprising Sethukuvoithan Division, as well as the ryotwari village of Athur, are on the bank of the river Tambaraparni. The plaintiff's case may be briefly set forth thus: He originally enjoyed certain preferential rights in respect of the water of the river Tambaraparni. The Government, about the year 1872, constructed higher up the river an anicut known as Srivaikuntam. Anicut and though this construction would in the natural course cause him damage, the Government adopted measures which adequately safeguarded his rights. Subsequently to the building of the anicut, the Government from time to time made changes in the machinery employed to carry the water, but the plaintiff's rights were not impaired and were on the contrary respected and recognized. This state of things continued till 1910 when Government issued an order whereby certain alterations in physical arrangements were brought into existence, and this, it is alleged, had the effect of destroying the rights so long and continuously enjoyed by the plaintiff. The legality of this order is challenged and the suit has been brought in effect for getting rid of this order.
18. The defendants deny the plaintiff's right to impeach the order in question. The Subordinate Judge has dismissed the plaintiff's suit and the District Judge has confirmed the order of dismissal. The plaintiff is the appellant in the second appeal before us.
19. In this judgment Sethukuvoithan will be referred to as S. To understand the facts of this case which are somewhat complicated, the accompanying diagram will be found helpful. There are six sketches in it and each sketch represents a stage. I shall briefly set forth the facts in respect of each stage but I may add, to avoid confusion, that the facts fall into seven stages and that the seventh stage, needs for its elucidation no sketch and is, therefore, not represented in the diagram. The first two stages relate to the period prior to the construction of the anicut: the other stages to the period subsequent to it.
20. First Stage.--Sethukuvoithan tank is in the village of that name and belongs to the plaintiff. Similarly, Athur tank irrigates the rival village of Athur.
21. Both S tank and Athur tank received their supply of water direct from the Tambaraparni river. But the point A, at which S tank got its supply was higher up in the river than point B, at which Athur tank got its supply. There is some dispute as to whether the sluice at A existed. Its existence is, however, admitted by defendant 2 who is the most prominent ryot of Athur: see Ex. 16, para. 7. The commissioner's report is also to the same effect. He refers to the sluice at A and says that it is still in good condition.
22. Second Stage.--B was dropped and Athur tank got its supply at point C higher up than point A. The change is that whereas previously Athur tank was filled at a point lower than S tank, it was now filled at a point higher. C G for the first time came into existence.
23. Third Stage.--The Government constructed the anicut and there were changes in consequence.
24. We have seen in the second stage that point B was dropped. Here point A was likewise dropped. S tank got its supply no longer from the river, but from the south main channel. J K took off from that channel and filled S tank.
25. J K channel crossed C G channel some miles below the anicut by an aqueduct. The two channels were distinct and independent, in so far as their course was concerned. By means of the aqueduct, the mingling of water was prevented. S tank received by J K channel .water sufficient to irrigate the entire 3,000 acres (the land of the plaintiff as well as the defendants' land) and the means by which the Athur ryots got their supply was through the vent provided in the weir or calingula in the S tank.
26. The division of water was thus effected, it will be seen, at the vent in S tank. The walls of the aqueduct were 6'-26' high. See Sketch A 3.
27. The plaintiff relies upon the fact that, although the building of the anicut would ordinarily be an obstruction, the actual means that were employed secured to him an undiminished quantity of water. He points out that before the water would escape through the vent, he drew off a a sufficient quantity for his purpose through irrigation sluices which had been built at a lower level than the vent. This contention is well founded. When the water in the tank was full there could be no dispute. The question is, as to low water, did the vent carry off the whole of it? The S tank belonged to the plaintiff, was in his land and under his control, and it is inconceivable that he allowed the low water to be so drawn off. The bed level of S tank is 10'50: see commissioner's evidence. D. W. 4, an overseer, admits the existence of at least four irrigation sluices in S tank, the level of the lowest being 9'77. The vent was, however, only at the bed level of the tank. (The Judge refers to this. The commissioner's report is also to the same effect). The result is, that even if the water is low some of it at least can be drawn off by the ryots of S.
28. Fourth Stage (1877-83).--In the previous stage the channel C G got its supply mainly from the south main channel through the vent in the S tank.
29. In this connexion it is necessary to mention that the bed of the J K channel rises till, at a certain point, the bed of the level reaches the maximum of 21.8, whereas there is a gradual bed fall so far the channel C G is concerned. The lie of the land is, therefore, unfavourable to the plaintiff and the measures that were devised and to which I shall refer, were intended to overcome the difficulty arising from this fact.
30. We now reach a stage when C was also dropped.
31. The sluice at that point was destroyed by a great flood in 1877. The important change was, that the wall of the aqueduct over C G on the left side to a length of 10' 4' was demolished, but the height of that wall was retained at 1' 10'. The water was thus made to drop at this point (E) from K into C G.
32. The plaintiff relies on the fact that a wall was maintained to the height of 1'10', for showing that the flow into C G was impeded as till the water rose to that level, it could not drop into C G. This is an advantage the plaintiff enjoyed during the times of low water.
33. A further part of the arrangement was that a cross wall was constructed in the lower side of the aqueduct with a vent 2x 1'7' at the floor level. This vent being at the floor level, coupled with the fact that the side wall was retained at a height of 1'10', adequately protected the plaintiff's right. It is through this vent that water passed through J K into S tank. As the vent was at the bed level it could carry low water.
34. Incidentally I may mention that this arrangement also ensured that when there was a full supply the Athur tank received considerably more than the S tank, the proportion being about 5 to 1.
35. In stage 3, channel J K up to E carried about 196 cusecs. (cubic feet per second). When the wall of the aqueduct was broken that is when the division of the water was made at E (stage 4), about 158 cusecs dropped into the old C G and 38 cusecs were caried into S tank.
36. The following passage from Ex. 9 shows that this change was made at the instance of the ryots of Athur to give them greater facilities:
The new Athur channel crosses the old source of supply from a head on the river some miles below the anicut by an aqueduct, and in consequence of representations made the undersigned authorized the drop of the water over the side of the aqueduct into the old channel, and this alteration increased the supply materially and is reported to have .brought the land under cultivation last season.
37. Fifth Stage (1883-94.)--E was done away with and a different device was adopted for distribution. A solid stone dam at M in front of C G and a sluice at N in J K were brought into existence. Water was still allowed to flow as before from S tank into C G through the vent way already referred to. The changes are thus described in para. 32 of Ex. 10.
Besides widening the new channel from the Athur head sluice up to 7 miles 6 chains, the aqueduct will be removed, a drop constructed and a head sluice (N) just above the drop for the channel leading to the S tank.
38. What was in fact constructed was not a drop but a solid stone dam. With this amendment, the passage given above correctly sets forth the alterations which usher in this stage.
39. The plaintiff strongly relies upon the fact that a solid dam at M was put up. The height of M is in several documents referred to indifferently as 21 feet or 3 feet. The District Judge says that it is originally built at a height of 3 feet.
40. But from Ex. 1 (plan) it would seem that the height of M is 2.44 feet.
Crest level of M ... ... 21.98
Bed level of channel ... ... 19.54
Difference ... 2.44.
41. Whatever the height was, the object of putting up M was to obstruct the flow into C G till the water rose to that level.
42. The endorsment of Ex. 1 shows that M was constructed before the end of the year 1883-84.
43. When originally built, M was a solid stone dam, but, shortly after, a hole was made in it 1/2' x 1 3/4' The object of this hole was to reduce the obstruction of the flow into C. G. But the point to be remembered is that the obstruction was still retained although to a smaller extent.
44. M was constructed, as I have said, by the end of the year 1883-84. Ex. 36 shows that the vent in M came into existence before June 1884. The hole in M was, therefore, made a few months after M was put up.
45. The principal fact to note in regard to this stage is, that the effect of the solid stone dam was to maintain a certain depth of water and thus enable J K to effectively operate as a water-course. The physical obstacle resulting from the lie of the land was thus overcome and the plaintiff obtained low water by this contrivance.
46. Sixth Stage (1894-1910). The solid stone dam was replaced by a regulator and shutters were introduced.
47. The stone dam at M (12' long) was replaced by a regulator with two shutters 6' each and 3' high, the sills of the shutters being flush with the bed of the channel.
48. Exhibit 22 (17th August 1893), Proceedings of the Madras Government, contain the reason for introducing the system of shutters in the place of the old dam, this being the central feature of the change which marks stage 6.
49. This order after stating that a cross dam was constructed 'in order to raise the water for the supply of the S channel' condemns the dam as a most objectionable method of regulation as it works prejudicially to the Athur channel. Then it continues:
It should be removed and a regulator with two vents of 6 feet each with their sills flush with the bed of the channel constructed and fitted with screw gearing shutters 3 feet in height.
50. Later on the following observation occurs:
It is preposterous that for a small extent of 500 acres at the head of the channel the interests of the large extent of 14,000 acres lying lower down and more suitable for cultivation should be prejudiced.
51. This last passage probably furnishes the motive for the Government's action.
52. If these shutters had been made to operate as intended, the plaintiff would have been seriously prejudiced, but, simultaneously with the introduction of the shutters, an order was passed by Mr. Whitbred, a Subdivisional Officer, that a depth of 2.50 should be maintained. Later, in 1901, another order was passed that a depth of 2.75 should be kept up. From the plaintiff's point of view the result of these orders was to render innocuous the regulators with its shutters.
53. There has been a good deal of controversy as to whether Mr. Whitbred passed the order in question, but the documents to which we have been referred conclusively show that the order was made and there can be no possible doubt in regard to this fact.
54. It is needless to refer to the various documents that make mention of Mr. Whitbred's order. It is referred to in Ex. P, dated 2nd March 1901, a letter from the Channel Superintendent to the Subdivisional Officer, P. W. D. Again, four years later Mr. Lutman, Executive Engineer, writing to Mr. Bhaskara Iyer, Subdivisional Officer, not only refers to this order, but gives the number and the date of it. 'Order of Mr. Whitbred, No.1360, dated the 28th September 1894,' in this express manner this order is referred to: see Ex. O.
55. On 21st April 1905 Mr. Bhaskara Iyer forwards to the Executive Engineer an enclosure to his letter of that date (Ex. O 1.) Mr. Whitbred's order and this again mentions the number and the date. Thus by one officer of the Government to another the order of Mr. Whitbred was actually dispatched. It is somewhat difficult to follow the learned District Judge where he dismissed Mr. Whitbred's order as 'mythical.' I am perfectly aware that I am dealing with the question in second appeal. Where, however, a finding is not only utterly opposed to all the evidence, but there is none in support of it, it is too late in the day to contend that that finding is final. I shall return to this topic later. Suffice it to say for the present, that not only Mr. Whitbred's order, but also other papers which may throw some light on this subject the Government has failed to produce: see Ex. P, P-1, P-2, L 20, M. N. O. 0-1, 20-A, Order 2 and P-3. It may be that the papers have been mislaid and after a diligent search they have not been found. It may be there is some satisfactory reason, but no one has gone into the box on behalf of the Government to explain how this order has disappeared.
56. I have said that from 1901, the depth' of water maintained was increased from 2.50 to 2.75. That this was so maintained there is no question. But the learned District Judge says:
It is sufficient to say that there is absolutely no proof that any officer of higher rank than this Mr. Nilakanta Sastri ever authorized the holding up of 2'75 feet of water.
57. Here again I must observe that the Judge has somehow lost sight of Ex. M, dated 17th December 1903, which is an order of Mr. Lutman, Executive Engineer, an officer of a higher rank than Mr. Nilakanta Sastri. It recognizes that 2.75 was, according to rules, being till then maintained and authorizes the observance in future of the same rule.
58. The point, however, to be observed here is not whether the orders were autho- rised, but whether, as a matter of fact, from 1894 to 1910, the plaintiff, notwith- standing the introduction of the shutters, continued to enjoy the advantage which he had till then enjoyed.
59. Defendant 2, as D. W. 6, says:
From 1901 to 1910 the shutters were kept closed.
60. There is a material difference between the system of shutters and the old system which it replaced, namely that of a solid stone dam. Whereas the latter is fixed and cannot be interfered with, the former is liable to be manipulated according to the whim or fancy of any subordinate official on the spot. This accounts for the occasional complaints from the ryots of S that the rule in favour of maintaining a certain depth was now and again broken.
61. I may probably just notice in this connexion that, on 23rd October 1905, an order was made countermanding the keeping up of 2.75 depth of water. But this order, it is admitted, was never given effect to.
62. It is thus clear that, even after the introduction of the shutters, the plaintiff as a rule enjoyed benefit which he had been accustomed to enjoy ever since the building of the anicut.
63. Before passing on to the next period I shall just advert to two minor errors into which the Judge had fallen. The first is that the Judge says that the plaintiff did not admit the existence of the vent in the calingula in the tank S, and in the judgment this point is much emphasized. The plaintiff admitted the existence of the vent even before the trial began: see para. 7 of Ex. A-2. P. W. No. 11 also admitted this.
64. The second mistake is that involved in the assumption that the vent in the S tank was closed about 1882. Not only it is clear from the evidence that it was not closed before 1902, but the fact is not disputed by the defendants. The passage in which this mistaken assumption is made is the following:
In my opinion it was the closing of this vent in the S tank calinguls .... that led to the misunderstanding of the whole position later on and to an idea that S tank had rights of its own under the channel. This confusion began in 1882 with the document Ex. X . . .
65. Seventh stage.--I have said that the regulator which marks the commencement of the sixth stage consisted of two shutters. I have also said that till 1910 a certain depth of water was always maintained ranging between 2.50 and 2.75, the result of which was that the introduction of the shutters did not really affect the plaintiff's enjoyment of low water. On 28th April 1910, the Collector of Tinnevelly issued the order which contained the following direction:
That when the depth of water above the sill of the Athur regulator falls to a level of 26 feet one of the present shutters shall be completely closed and the other lowered to a level of 6 feet above the sill so as to leave an open vent way of 3 square feet.
66. This conferred an undoubted preference on Athur. One of the two shutters was to be raised by a half-foot. The length of each shutter being 6' the escape would be over 3 square feet (6' x 1'/2). The devasthanam was thus deprived of the advantage which it had continuously enjoyed from 1872 , when the anicut was constructed up till 1910, when this order was promulgated, an unbroken period of 38 years. The plaintiff after unsuccessfully petitioning the Government to revoke this order brought this action in January 1913, in effect to have a declaration of his rights and to get the order of 1910 vacated. This brings me to the close of the seventh stage and I shall now make a few general observations in regard to the entire case.
67. At the building of the anicut, what was the plaintiff's position and what is the reasonable inference from the conduct of the parties? The plaintiff was a riparian owner, and as between himself and Athur, he had the upper riparian rights. Whether the plaintiff was at that time actually exercising that right or not, the right was still there, it was potential and capable of being enjoyed at any moment. It has not been shown that the diverting of the water at C, a higher point in the river, had such a result or extended over such length of time as to deprive the plaintiff of his undoubted riparian right. It was in these circumstances that the anicut came into existence. It, no doubt, would ordinarily constitute an interference with the plaintiff's rights. But as his rights were expressly recognized and clearly safeguarded, no injury could flow to him from the construction and he naturally had no grievance. It is in pursuance of 5-C, a Proceeding of the Madras Government, that the anicut was constructed. In this there is a reference to the inam village and proposal to strengthen the S tank and build an irrigation sluice in the bund of that tank. So far, therefore, as the Government's declaration is concerned, it recognized the plaintiff's right and in the project that was carried out in pursuance of this declaration every act of the Government was consistent with this recognition. Next, before the breaking down of the wail of the aqueduct which marked commencement of the fourth stage, the Madras Government published Ex. 9. Then again, the plaintiff's rights were recognized. It contains a reference to 'provision for supplying S tank' and says 'its due share of water could be drawn off by the Athur channel (J K).' I have already shown that in the actual execution of the work, the devices that were adopted had the effect of safeguarding the plaintiff's right.
68. Before the next change was made, the Government published Ex. 10. It recognized again the plaintiff's right. According to it, the total area to be cultivated is 2,981 acres and this includes as stated in that very document the land of the plaintiff. In para. 7 of Ex. 10 there is a reference to 'throwing off a branch to Athur and S,' which also shows that the plaintiff's right was recognized. In the actual carrying out of the work, the methods that were devised had the effect, as before, of protecting the plaintiff's rights. These are the three most important exhibits and each of them was more or less contemporaneous with the work executed on each occasion.
69. From Ex. 5-C the only reasonable inference is that the Government recognized the plaintiff's right to low water in regard to irrigation of his land. Whether it is a grant or a contract that is to be implied, is of no consequence. The latter documents to which I have referred show that the Government continued to view the plaintiff's position in the same light and raised no question regarding his rights which were respected and protected. Besides these three, there are other documents of minor importance which contain evidence of the Government's recognition of the plaintiff's right and a reference to them is unnecessary.
70. The learned District Judge has ignored some of the most valuable evidence, acted on assumptions which are wrong and I am unable therefore, to accept his finding. The plaintiff has clearly made out a right to low water.
71. That the plaintiff's right is seriously jeopardized admits of no doubt. The commissioner says in his report:
When one of the shutters was lifted by six inches and the other shutter remained closed little or no water passed or could pass into S channel.
72. Moreover, the real question seems to be is the plaintiff entitled to low water or not; if he is, the order of 1910, at any rate, in its present shape cannot stand.
73. Then the question remains: What is the measure of the plaintiff's right? He asks in his plaint that it should be declared that he has a right to a command of 2.9 of water as previously obtained. I do not think he has made out a claim to this definite quantity of water. Temporary measures were from time to time adopted and one of such measures was to give him that depth of water. Since the building of the stone dam, the extent of the right might more or less accurately be described by saying that a head of 2 75 was kept up, but before the stone dam, the right enjoyed by him was not by any means the exact equivalent of this. Through all the changes only one fact emerges, namely, that the plaintiff's right to low water was conceded, and in determining the actual measures of that right we must turn to circumstances that existed at the building of the anicut. What is it that can reasonably be inferred from the circumstances that then existed and the conduct at that time of the parties? Ex.-H, an extract from the inam register of 1865, shows that the plaintiff's land under cultivation was acres 228.01 on which a single crop was. raised and 182.38 on which a double crop was raised. Ex. 43 is also a useful document in this connexion. It would be improper to assume that when the Government took possession of the plaintiff' s land and tank and carried out the project, they intended to affect the plaintiff' s enjoyment of the land in the manner it was then being enjoyed. The plaintiff also would have been content if his then mode of enjoyment was not affected. It is on this basis that the parties must be deemed to have looked at the question. It would not be reasonable to suppose that the plaintiff would have taken less nor that the Government would have given more. The plaintiff's right must accordingly be recognized to this extent. For the raising of the peshanam which in the judgment is described as the second crop, the plaintiff probably does not normally depend upon low water and the question would really assume importance only in regard to the kar crop (described as the first crop on the judgment) which must depend in the usual course on low water. However, this may be, the plaintiff has acquired a right to irrigate by means of this water 228.01 acres of single crop land and 172.38 acres of double crop land. He must have a supply adequate for this purpose and his right must be declared accordingly.
74. That the plaintiff has probably asked too much is no reason for altogether denying him relief. In the very nature of things, a claim of this kind cannot be formulated with great preciseness. There is another prayer in the plaint to the effect that the defendant should be directed to remove the drop at Q and to close the diversions at P, Q and R. So far as the diversions referred to are concerned, Mr. Rangachari, the learned vakil for the plaintiff, has not pressed this part of the case nor has he pressed the case so far as W, X, Y and Z are concerned, and in regard to the drop at Y there is similarly no difficulty. In Ex. FF, a report made by an officer of the Government, this drop is described as the 'real offender' (see also Ex. 28), and in the written statement of the Government they say they are prepared to lower the level of the drop. The learned Government Pleader has also stated to us that the Government is willing to remove it so far as it constitutes an obstruction to the plaintiff. I have no doubt that the drop at Q must be directed to be altogether removed The case may be summed up as follows:
75. 1. The plaintiff was admittedly a riparian owner. He had an undoubted right to take water from the river Tambraparni for the irrigation of his lands. The anicut constructed is a physical obstruction placed in the river drawing off the water at a higher point and it is an interference with the riparian right of the plaintiff. His right was in any event potential even should it be held that it had not been proved that he actually exercised that right. I have, however, already shown that the claim made by the plaintiff that by means of the sluice at A the enjoyed the water of the river for the irrigation of his lands long, prior to the construction of the anicut,, is not unfounded. I have already shown that the diverting of the water at C has not been sufficient in law to give Athur a right of easement to interfere with the riparian right of S.
76. 2. As between villages S and Athur the proprietor of the former was the upper riparian owner. This being so, the act of the Government in building the anicut and diverting the water at a point higher than the S tank for the benefit of Athur amounted to an interference with the plaintiff's right.
77. The Government, therefore, must in any event be assumed to have believed that the plaintiff had a bona fide claim and in the light of this fact their declarations and conduct must be examined.
78. In Ex. V-c, a Proceeding of the Madras Government, there is an undoubted recognition of the plaintiff's right. This proceeding is in the nature of a contemporaneous declaration, and, after publishing it, the Government entered on the plaintiff's land, constructed the channel J K over the length of a mile of it, took possession of the tank, brought water into it and made certain physical arrangements and alterations in respect of it. Why should a wrongful act, such as trespass, be imputed to the Government when a different explanation of their conduct is on the facts more reasonable? Either of the following two inferences would in the circumstances be natural and proper. First, that the Government entered on the plaintiff's property with his express or implied consent and he gave the consent because he derived an advantage. Secondly, that if the act of the Government was initially an invasion of the plaintiff's rights, he acquiesced in it because, to compensate him for his loss, certain benefits were conferred on him. Either hypothesis will make the conduct of the Government lawful.
79. In the first document which bears on the question, Ex. V-c, there is thus an express reference to, and recognition of, the plaintiff's rights. On every subsequent occasion, when there was a proposal to effect a change in the machinery, the proposed scheme was made the subject of a careful discussion and a proceeding was issued. In every such document plaintiff's right is mentioned and recognized; Exs. 9 and 10 are instances of this.
80. As regards the measure of the right, it is clear that the village S had a certain preference so far as low water was concerned. When, in 1872, the channel JK crossed the channel CG by an aqueduct, and carried water into the S tank which was, be it noted, in the plaintiff's land and under his control, there is no warrant for assuming that the vent constructed in the tank, operated so as to deprive the plaintiff of all low water in dry season. Next, when, in 1877, the water was first divided at E, measures were adopted to give some preference to the plaintiff in respect of low water. When, in 1883, again a stone dam was built at M and a sluice at N, the same result was achieved though the medium employed was different. And lastly, when in 1894, the shutters were introduced which, if operated, would have destroyed the plaintiff's right, steps were simultaneously taken with a view not to disturb the existing state of things and the plaintiffs were thus left in enjoyment of their right, till in 1910, the order now challenged was made. The preferential right of the plaintiff to some measure of low water was uniformly and consistently recognized and, though the Government reserved to itself the right to alter the machinery, that right was not exercised as to materially injure the plaintiff. I have already fully dealt with the question, what is the measure of the right acquired by the plaintiff and I need not refer to this again in this place.
81. The changes made from time to time may in one sense be described as experiments on the part of the Government but the object of these experiments was not to injure the plaintiff, but to devise measures which, while safeguarding the plaintiff's rights, would give additional facilities to the ryots in whom the Government was more directly interested--the ryots of Athur and other ryotwari villages.
82. I have already shown that the manner in which this preference came into existence indicates a legal origin. The long enjoyment of this preference strengthens this conclusion. In the circumstances, a legal origin must be presumed, be it a grant or a contract: Maharani Rajroop Koer v. Abul Hossein  6 Cal. 394 and Rambhai Dabhai v. Vallabhai Jhaverbhai A. I. R. 1921 Bom. 430.
83. This likewise excludes the theory of 'grace' which the Dist. Judge has called in aid to account for the unbroken and uniform enjoyment of the plaintiff.
84. The learned Government Pleader has contended that the objection taken by the appellant is to a finding of fact and that in second appeal its soundness cannot be questioned. In my opinion, the grounds mentioned in Section 100, Civil P. C., exist. The correctness of the conclusion is, therefore, a question open to second appeal. The learned Dist. Judge, while conceding that the order of the Government, Ex. 10, supports the plaintiff's case, says at least in three places in his judgment that it was based upon a misconception. To quote his words:
But, the idea now first appears that the S tank is entitled to water of its own right. The document as I said...bears on its face the apparent misunderstanding of the situation.
85. Where the Dist. Judge got this from, it is impossible to say. The document was filed and relied on by the defendants. It was not a part of their case that the order was the result of any mistake. The Dist. Judge seems to have made a new case not raised by the parties and not warranted by the pleadings or the evidence. This is a substantial error or defect in procedure within the meaning of Section 100, Clause (c), justifying interference by the High Court in second appeal: Shivabasava v. Sangappa  29 Bom. 1 The Dist. Judge has made a mistake of going to the root of the matter and it vitiates his judgment.
86. There is another ground for interference. The learned Dist. Judge says that if the Government allowed the plaintiff water, it was as a matter of grace. This conclusion is not supported by any evidence. The contention before us for the defence has been that at no time was low water allowed to the plaintiff and it has not been suggested that if it is found that low water was allowed, that was done only as a matter of grace. The real question is: Was low water allowed? If it is found that it was allowed, in the absence of evidence to the contrary, the plaintiff's long enjoyment must be referred to a grant or a contract. If a finding is based on no evidence, it cannot be treated as a finding on a question of fact which is final: Hemanta Kumari Debi v. Brojendro Kishore Roy Chowdhry  17 Cal. 875 Anangamanjari Chowdhrani v. Tripura Sundri Chowdhrani  14 Cal. 740 Shivabasava v. Sanappa  29 Bom. 1 and Damusa v. Abdul Samad A. I. R. 1919 P. C. 29.
87. There is yet another ground for not treating the finding of the learned Dist. Judge as final. I have said that he has refused to rely upon Ex. 10, which contains a recognition of plaintiff's right, on the ground that it is based upon a misapprehension. In another passage of his judgment he says that there was no recognition of the plaintiff's right until Ex. 10 was published. I have already referred to the various exhibits, notably Exs. 5-c and 9, where we find that the plaintiff's right was most distinctly recognized. It seems to me that the learned Judge has not appreciated the importance of the recitals contained in the documents. These facts also deprive the finding of the Dist. Judge of its character of finality. If a finding is based on an inference drawn upon an incorrect construction of a document, the Judicial Committee has held that the question is one of law and the High Court is not precluded from considering it in second appeal: Fateh Chand v. Kishen Kunwar  34 All. 579 The case is here worse as the bearing of important documents has been quite overlooked.
88. Exhibit 5-c may be said more or less to constitute the very foundation of rights.
89. Exhibits 9 and 10, recognising as they do antecedent rights, stand on a somewhat lower footing, but are nevertheless documents of great importance. Midnapur Zemindary Co. Ltd. v. Uma Charan Mandal A. I. R 1923 P. C. 187 relied on by the defendants cannot, therefore, be of any help to them.
90. Lastly remains the question of law, whether the suit is barred by limitation. The Dist.Judge has held that it is. No argument was advanced on behalf of the defendants to support this view and in my opinion rightly. The learned Judge has held that the plaintiff was bound to have the order of 1910 set aside and that the suit which was brought beyond the period of one year from the date of that order is barred by limitation. In this he is clearly wrong. In Shivaji Yesji Chawan v. Collector of Ratnagiri  11 Bom. 429 the plaintiff was deprived of his land by the Collector and it was given to the defendants, and in holding that Art. 14 did not not apply West, J., points out that every dispossession by a person in authority is effected by means of an order, and, if the view that Article 14 applies is correct, there can virtually be no suit for dispossession by a public functionary only, a suit to set aside his order or his act. This observation shows that Art. 14 cannot apply to all orders, and, as the same learned Judge says, it can apply only to orders and proceedings to which by law is given a particular effect. An order to come under Art. 14 must be an order of at least a quasi-judicial character and not a mere executive order: See Narendra Lal Khan v. Jogi Hari  32 Cal. 1107 The order in question does not satisfy these tests, nor is it by law an order which needs to be set aside. Art. 14, therefore, does not apply to the case. There thus exists no impediment to bringing a suit within the ordinary period of limitation and I hold, therefore, that the suit is not barred.
91. In the result, the plaintiff will have a declaration that he is entitled to low water to the extent adequate to irrigate 228.01 acres of single-crop land and 172.38 of double-crop land, provided that at least this quantity of water is available in the channel JK. The Government will adopt such measures and make such alterations as to ensure to the plaintiff the supply of water above-mentioned. To indicate the exact nature of these changes or methods, is, in my opinion, not proper, nor indeed is it possible. The judgment of the lower Court will be modified accordingly and the plaintiff will have a decree in the terms mentioned above. There will be also a direction that the Government will remove the drop at Q. As each party has partially succeeded, each party will bear its own costs throughout.