1. The plaintiff is the inamdar of Adangarkulam village in Nangureri Taluq. He states that a natural stream, Hanumanadhi, takes its rise in the Western Ghats and flows through his village, that he has been taking the water of that river to his tanks, six in number, at certain seasons of the year when it was required for the irrigation of his lands, that in order to divert the water into his channels, he had to put up a dam across the river-bed as the river-bed is on a level lower than that of the channels and water could not flow into them when it was knee deep or less than that; and that he has been doing so, according to him, from time immemorial. The dam consisted of a masonry anicut with interstices between the vertical stones which he filled up, when necessary, with mud or Palmyra leaves. The plaint states that the masonry anicut in some places was damaged, and he had, therefore, to put up a temporary mud dam in front of it for diverting the water into his channels. The 1st defendant, the Government, recently levied an assessment from him for taking the water into his tanks. The other defendants are the ryots of some of the neighbouring villages who also deny plaintiff's right to take water as claimed by him. He, therefore, seeks a declaration of his right to take the water of the stream to his tanks by diverting it into the channels, and, for that purpose, to put up a dam across the river-bed, and also a declaration that the Government has no right whatever to levy any tax on him for taking such water. The 1st defendant, who is the Secretary of State for India in Council, denies that the river, where it passes through his village, belongs to the plaintiff. It is asserted that the river belongs to Government and that the plaintiff, at the time of the inam grant, did not acquire any rights claimed in the plaint to the use of the water. It is also denied that the anicut belongs to the plaintiff or that he is entitled to put up any dam across the river or to take water, as he alleges, through the channel for purposes of irrigation. The Government also allege that the plaintiff can only take water to irrigate the lands which were under wet cultivation at the time of the inam grant; and that the assessment is imposed because he utilised the water of the stream for the purpose of raising nanjah crop on lands on which it was not usual to raise such crop before. The other defendants also deny the plaintiff's right. They allege that, if the plaintiff is allowed to take water as claimed by him, irretrievable loss and injury would be caused to the defendants who hold lands below. The right of the Government to the river-bed, however, is not accepted by them in their written statement.
2. The facts which are admitted or proved beyond doubt are: The Hanumanadhi river takes its rise in the Western Ghats, and, after running through various ryotwari villages, in the midst of which the plaintiff's village is situate, flows into the sea. Three of the hamlets belonging to this village lie on the western side of the river and the fourth or the last one Umraoli hamlet lies on the eastern side of it. For the irrigation of the lands belonging to these three hamlets lying to the west of the river, there are five tanks and there is one tank for the Uramoli hamlet on the east side of the river. The masonry anicut which is referred to in the plaint is built across the river-bed to raise the level of the water to divert it into the channel which takes water from the stream to the five tanks of the three hamlets. That masonry anicut, being now in disrepair, the plaintiff has put up a mud dam in front of it to divert the water. At some distance below that anicut the river bifurcates, and at that or near the point of bifurcation, the plaintiff has put up a mud dam to prevent the flow of water along one of the branches and to make it flow into the other, that is, the eastern branch, that he might take it into his Uramoli tank.
3. The plaintiff's case is that this system of taking water into his tanks has been in existence from time immemorial.
4. The Subordinate Judge has found that the anicut across the bed of the river was built by the plaintiff's predecessors within the limits of the Adangarkulam village, that the river Hanumanadhi ran through the village, both the banks of the river belonging to the plaintiff. Ha also found that he was a riparian owner of the inam village. The question whether he was a riparian owner was raised apparently with reference to the plaintiff's claim as an inamdar. On the question whether the plaintiff was entitled to take the water, he found that the plaintiff, as a riparian proprietor, was entitled to take the water for irrigation of his own lands, without causing any material injury to the other riparian proprietors and that the method he had adopted of constructing anicuts for the purpose of damming the river was, in the circumstances of the case the only reasonable method of enjoying his right. He also found that no material injury was thereby caused to the other riparian proprietors. He also came to the conclusion that the plaintiff's predecessors-in-title had been putting up dams in question and thereby diverting the water of the stream into his channels for a very long time, probably from the year 1803 and certainly for more than 30 years. He was, therefore, of opinion that, even if the plaintiff's natural right to take the water as a riparian proprietor has not been proved, he has proved a right to take the water by prescription and he was also of opinion that, in the circumstances of the case, there is a presumption of a grant by the Government in favour of the plaintiff. He farther held that the 1st defendant was not justified in imposing penal assessment on the ground that the plaintiff had put up a dam and that the plaintiff, as a riparian owner, was entitled to the use of his stream to irrigate his inam village to any extent, provided he did not thereby interfere with the rights of the other riparian owners either above or below him. It was also held that it was only when the plaintiff used Government water for the irrigation of any lands in excess of the original area that the Government had a right to raise any revenue on that account and that this was not Government water in that sense. The other questions which were argued before him and decided are not material for the purposes of this second appeal. He, accordingly, passed a decree in favour of the plaintiff declaring his rights to put up dams in the river. In appeal, it is first contended before us that the finding of the Judge that the dam erected at (A.) in the plan across the bed of the river to take water to the five tanks is within the plaintiff's village of Adangarkulam is wrong. The survey plan of the inam village of Adangarkulam on the west of the river and of Thanangulam on the east of it, shows that the bed of the stream is included within the limits of Adangarkulam river in the pymash accounts and is described as the boundary of another village, Kalyankulam, also on the eastern side (K). The Government revenue accounts of 1803 treat the bed of the stream adjoining it as part of the Adangarkulam village (Exhibits R and R-1 and R-2). These are the reasons given by the learned Subordinate Judge for his finding. The Advocate-General, however, states that, though the village is recognised as belonging to the plaintiff and the descriptions of the boundaries, and the revenue accounts of the village may show that the river-bed is included within its limits, yet unless it is expressly stated that the river-bed is conveyed, it will not pass, and he relies upon the decision in Papala Narayanasawmi Naidu v. Pensalani Kaniappa Naidu, (1912) M.W.N. 496. That was a case of a grant on shrotriem tenure and it is stated in the judgment that the object of the grant was to make a provision for an official whose office was no longer necessary and 'what was regarded was the land as producing an income.' In the case before us, there is no grant produced. There is, therefore, nothing to rebut the inference drawn by the Subordinate Judge from the facts above set forth, It also appears that the plaintiff and his predecessors have been exercising acts of ownership in the bed of the stream by putting up stone pillars. Moreover, when the plaintiff applied to the Inam Department of the Revenue Board office that the poramboke in the village may be ordered to be expressly included in the inam patta, he received this reply: 'It is not the practice to enter the extent of poramboke lands too in the pattas issued on the Settlement of the whole village. The term 'entire village' includes the poramboke and all other lands which are within the four boundaries and comprised in inam patta huk. The inamdar, therefore, may enjoy in any way he pleases all the lands within the boundaries of each village. There is no necessity to pay separate tax to Government for it.' (Exhibit S). We uphold the finding of the Subordinate Judge on this question. It is next urged by the learned Advocate-General that the plaintiff's claim to erect a bund or dam up a river is unreasonable. The plaintiff is a riparian proprietor; he has a natural right to use the water of the stream for irrigating the lands of his Adangarkulam village, provided he does not thereby cause any material injury to the other riparian proprietors. What quantity of water he is entitled to take and how he is to take it for irrigating the lands must depend upon the circumstances of each case. Erecting a dam or bund across the bed of the river when it is low to raise the water to a sufficient height to divert it into an artificial channel for irrigation is one of the common methods in this Presidency of using the water of a stream by a riparian proprietor. That a dam may be erected when it is reasonably required for the use of stream water is recognised by the Judicial Committee. See Miner v. Gilmour 12 M.P.C. 131 and Debi Parshad Singh v. Joynath Singh 1 C.W.N. 401. The Subordinate Judge, in a careful judgment, finds that, when the water in the stream is only knee-deep or below that level, the erection of bunds to raise the level to divert the water into the channels is necessary for purposes of irrigation. He finds that the holders of land above and below have been similarly erecting bunds to take water to their lands. Six permanent anicuts above and two below were erected by the Government to divert the stream water into irrigation channels. In 1873, 1874, 1882 and in 1889, the existence of the dam and its prejudicial effects on the cultivation of Government ryotwari lands was brought to the notice of the Government and they recognised the plaintiff's right to take water by the erection of dams (Exhibit O). It is difficult to believe that, if this had been unusual, it would have received any recognition. There is, therefore, strong evidence to support the conclusion of the Subordinate Judge that the erection of bunds at certain seasons when the water was only knee-deep is reasonable, and, in second appeal, we cannot interfere with that finding. The Subordinate Judge also finds that no material injury has been caused to the defendants by the erection complained of. We, therefore, uphold the decision of the Subordinate Judge that the plaintiff has the right to erect dams which he has erected to enjoy his natural right. No objection has been taken to the dimensions of the dam or to the time of its erection.
5. The Subordinate Judge goes further and finds that, even if material injury was caused to the other riparian proprietors, they are not entitled to complain as the plaintiff has acquired a right to take water to his tanks by prescription. He finds that, even if the masonry anicut was put up for the first time only in 1872 or 1873, the plaintiff has been damming up the stream to take water through his channels to his tanks for irrigation by putting up mud or sand dams across the bed of the river long before that time. He finds, from the documentary and oral evidence adduced in the case, that these channels have been in existence as supply channels for his tanks from before the year 1803. He discredits the defendant's evidence that they were only marukalls or drainage channels. This finding is supported by evidence and we see no reason to interfere with it; and, on this finding also, the plaintiff is entitled to the declaration that he has obtained. It is contended, on behalf of the Government, that the plaintiff was not entitled to take water to raise wet crops on lands on which hitherto it was only customary to raise dry crops, on the ground that it must be taken that the plaintiff was only entitled to receive so much of the water, of the stream as was conceded to him by the Government when the village was granted to him in inam, and if he takes any more water he is liable to pay any assessment that may be imposed under the Madras Act VII of 1865. The Subordinate Judge disallowed this claim on the ground that the river did not belong to the Government under Section 1 of that Act, as he had found that it ran through the plaintiff's village, the banks, on either aide belonging to him and also on the ground that he is a riparian proprietor. It, however, is urged by the learned Advocate-General that, under Act III of 1905, whatever might have been the law before, it must now be taken that the water of the stream belongs to the Government. The provisions of this Act were not considered by the Subordinate Judge as the suit was instituted in 1904, before the Act was passed. In reply to this, it is urged before us by the respondent's Pleader that, first of all, the Act did not interfere with the rights which existed before the riparian rights of the plaintiff are preserved and secondly, that neither the water nor the stream belonged to the Government. It was also urged that, on the facts found in this case, there was an engagement between the plaintiff and the Government by which the former was entitled to irrigation free of charge. It is contended that the plaintiff has taken more water than he has been taking before. It appears that he has taken water from the river only to fill the tanks as he has been doing hitherto. The carrying capacity of the channels is not said to be greater now than before nor is it said that the tanks have been widened or deepened in order to take in more water than hitherto. The plaintiff is clearly entitled to irrigate such land as it is in his power to do so with the water which, according to the findings, he is entitled to take from the stream. The right that is proved is the right to take the water until the tanks are filled. It is not shown that he has taken more water than that. We must, therefore, disallow the contention on this ground. Under Section 82 of the Code of Civil Procedure, we allow a period of three months for payment of costs, The second appeals are dismissed with costs.