1. This appeal is by the plaintiff from the decision of the District Judge of Vizagapatam, dismissing his suit against the Secretary of State for the recovery of certain sums of money exacted from him as water-cess payable on lands irrigated in his Inam. The two principal questions are: (1) whether he has irrigated more than he was entitled to irrigate free of water-cess under the Inam Settlement for first crop? and (2), whether he was entitled to irrigate under the Inam Settlement any part of this land for second crop without liability to water-cess? It was argued on behalf of the respondent, the Secretary of State, by the learned Government Pleader that, for the purposes of ascertaining the engagement with the Government, we must take the inam deed as fixing the area on which irrigation was to be free and that we cannot, as the appellant asks us to do, take it that the intention of the Government was, at the time of the Inam Settlement, to leave the irrigated area, such as it was then, free of charge unless that irrigated area happens to contain exactly the same acreage which, in the inam title-deeds, is stated to be the wet lands of the inam. The reasoning on which this argument is based is that wet assessment is part of the assessment on which quit rent is calculated, and it is the amount of quit rent which is to be taken as having been the price at which the Government sold its rights and, therefore, as I understand the argument of the Government Pleader, we must take it that it is only the exact area which was then settled as wet land that has been paid for by the wet assessment. In my opinion, the true view of the case, the view which is suggested by all the documents and the title-deed itself, is that what the Government intended to free from all further charge than quit rent was all the area then registered as wet land; and I am confirmed in this view to some extent by the terms of the title-deed, which show that the area dealt with is an approximately estimated area and not an exactly ascertained area. Then the accounts on which has been based the calculation of quit rent show that the whole area which is registered as wet is the area entered in the title-deed though it is only approximate. The intention of the Government seems to me to have been that quit rent was to cover all charges that had been previously leviable upon it, but 1 see nothing to suggest that they took what was admittedly an approximate area for one purpose and intended to fix it for other purposes and say: 'We give you the whole inam; we do not know what exactly the area is; but we take the area as it is now estimated and we say that that and that alone, right or wrong, you are entitled to irrigate without further charge.' It seems to me more probable that what was intended was 'so much nanja land as you have, we leave to you as wet land Whatever area you actually irrigate, it shall be treated as wet land. We have no further concern with it.' That, of course, leads to the difficulty of ascertaining what was the actual nanja area at the time of the Inam settlement. The evidence which we have on that point is distinctly not very satisfactory; but it is shown that the whole village on survey, instead of 337 acres 62 cants as estimated at the time of the Inam Settlement, was found to contain an area of 517 acres. The accounts show that the great bulk of the village was wet nanja land and that only a small portion was dry, poramboke, topes and pasture lands. So that it is fair to infer that some portion of this difference between 357 and 517 acres in the estimated area of the village was due to a mistake in estimating the area of the wet land of the village. It is suggested that we should take proportions, and, if we take a proportion, we find that what is registered as 108 acres of wet land would be, taking the total area of the village to be 517 acres, somewhere about 139 acres. But we have the admission made before us now that the actual mamool wet area of the land is not more than 127 acres 21 cants which was irrigated in Fasli 1311. Now taking it that there was a mistake in the total area of the village and that a portion of it must be attributed to wet land, there is no great difficulty in accepting the evidence on the side of the plaintiff that the actual area of wet land now irrigated has not exceeded the area included in the Inam Settlement. The evidence on the other side, the Judge says, is extremely weak, and the Government Pleader has not asked us to place any reliance upon it, Consequently, the largest area of wet land irrigated in any year, 127 acres, 21 cents, is not, according to my view, shown to be an increase on the old area and, therefore, not shown to be liable to water-cess.
2. On the other point, the Government Pleader has conceded thai, judging from the rate per acre, taking it as the basis on which quit rent is calculated for this inam, it is probable that the land was taken as land yielding two crops and, therefore, the Government should not charge water-cess for the second crop. That view is confirmed by the Gudikat accounts which show that 120 acres of land were lands which have been yielding a second crop. So, on the second point, my finding is in favour of the appellant.
3. This is sufficient to dispose of the appeal and to entitle the plaintiff to a refund of the water-cess levied from him. But a third question has been argued before us and that, I confess speaking for myself, is a question which has no relevancy to the case and there is no relief in respect of it claimed in the plaint. In the plaint, the case was that the Government had charged water cess on land which was not liable to it, and the reliefs asked in respect of that matter are for a declaration that defendant has no right to levy water-tax and an injunction to restrain defendant from levying any such tax at any other time and the recovery of the amount collected from the plaintiff. But the question which has been argued is an entirely different question. It is whether the plaintiff has a right to put up once a week 'poonu' or bund in the main channel and to close other channels so as to raise the water to a sufficiently high level to irrigate some portion of his lands which he says cannot be otherwise irrigated. The District Judge has framed issues which seem to deal with that question and though it is quite clear to me that it has nothing to do with the question whether the Government are entitled to charge water-cess, still it has been decided, and we are told that the result of that decision has been, that attempts have been made to stop the construction of the bund. Consequently, it is perhaps desirable that I should state my views on that issue. My view is that the evidence shows that from, at any rate, as far back as 1834 (Exhibit J) there was a bund and that bund was probably the Sunday poonu which has, undoubtedly, existed from 1878. Exhibit M, which was in 1861, also shows that, in that year, there was a bund which, I think, can be identified with this bund. There is no suggestion that it was a different bund. At any rate, we have it that, before the Inam Settlement, there was a bund and, undoubtedly, from the evidence, a bund has been put up from before 1878. In 1878, the custom of putting up this poonu bund was in full force. The learned District Judge is of opinion that, had this right claimed been exercised at the time of the Inam Settlement, it must necessarily appear in the papers relating to that Settlement. It seems to me that that is not quite so clear. In the papers relating to the Inam Settlement, we do not find anything which sets out all the irrigation sources. So it may be that the question of the bund was not one which was considered at the time. At any rate, its absence in the Inam Settlement seems to me insufficient to rebut the other evidence. I am prepared to hold, on the evidence, that the plaintiff has shown that he had acquired the right which he claimed to construct the Sunday bund. But he has not asked for any relief in respect of that. I cannot, therefore, give him a declaration. I have stated my view and can do no more for him in this suit. In my view, the appeal must be allowed and the plaintiff should be given a decree for the amount claimed with the usual interest and costs throughout. A declaration will be given that he is not liable to pay water-cess on any part of the wet area not exceeding 127 acres, 21 cents for first or second crop. The prayer for injunction is not pressed. The time to be specially fixed under Section 82 of the Civil Procedure Code will be three months.
Sadasiva Aiyar, J.
4. On the questions (1) and (2) formulated in the judgment just now delivered by my learned brother I entirely agree in his conclusions, and I do not think I can usefully add anything to the reasons given in that judgment. As regards the third question relating to the right of the plaintiff to put up the poonu (dam) on Sundays, it is true that the plaintiff did not claim any declaratory relief as to his right to put up such a dam. He must have thought that was an evidentiary matter supporting his other claims in respect of which he did want reliefs. And it was only when the defendant, in his written statement, denied that evidentiary fact, the question had to be gone into after formulating the dispute in the issues Nos. 3 and 4 framed in the suit. As a finding has been given by the District Judge on that question and that finding is one of the important conclusions of fact on which the right of the plaintiff to get the other reliefs was decided against him by the District Judge, I think a decision on that question is advisable on appeal also so as to prevent the parties from arguing in a future suit whether the finding on that question by the lower Court will or will not be res judicata as against the plaintiff. The question whether that finding of fact by the District Judge can be pleaded as res judicata in a future suit will depend on whether the question involved in it was directly and substantially in issue between the parties in this suit and was treated as a relevant fact by the parties and the Court. I am inclined to hold that it has been so treated in this case as relevant to the decision of the other questions which are directly connected with the reliefs contained in the plaint in this suit. Section 11 of the Civil Procedure Code, corresponding to Section 13 of the old Code, gives the effect of res judicata to a decision not only on the prayers claimed by the plaintiff in the plaint and granted to the plaintiff but also on an issue which has been directly and substantially in dispute between the parties. In Tribhuwan Bahadur Singh v. Rameshar Baksh Singh 10 C.W.N. 1065Lord Macnaghten says at page 740 on the effect of a finding in a former suit on an issue as to adoption: 'Whatever objections there may have been to that issue being raised before the Commissioner on remand, both parties accepted it. It was treated as the main question in the suit The issue was decided adversely to the appellant. Having regard to the language of the Code of Civil Procedure Section 13, which deals with issues as well as suits, it would seem that the finding on the issue as to adoption must be treated as res judicata.' No doubt, his Lordship abstained from expressing a final opinion on the question; but the opinion above expressed is naturally entitled to great weight. So far as the merits of this third question are concerned, I am clear that Exhibit H, which I see no reason to hold to be not genuine, Exhibit J, Exhibit M and the other evidence in the case satisfactorily establish that the plaintiff has been enjoying the privilege of putting up this dam between the sources of smaller channels 39 and 40 in order to raise up the level of the water in the main channel above the opening of sub-channel 40 to irrigate the lands in his village which are on such a high level, that without this poonu (dam) they could not be properly irrigated. In the result, I agree in the decree proposed by my learned brother.