Alfred Henry Lionel Leach, C.J.
1. The suit out of which these appeals arise was filed in 1927 by Rajah Yarlagadda Ankineedu Prasad, the proprietor of the Devarakota zamindairi, which is in the Kistna District, to establish rights claimed by him in a stream which flows through the estate. The water from this stream is used by the zamindar and his tenants for irrigation purposes. The Government of Madras has always claimed the right of levying cess in respect of water so used and until after the plaintiff bad succeeded his father as the zamindar, the justice of the claim was recognised. The plaintiff's father died in 1921. For faslis 1334, 1335 and 1336 which correspond 10 the years 1924-25, 1925-26 and 1926-27, the Government required the plaintiff 1.0 pay in the aggregate Rs. 1,952-14-4, as water cess in respect of lands irrigated From this stream. The plaintiff decided to challenge the legality of the Government's demand for water cess and in his plaint he asked for a decree for repayment* of the Rs. 1,952-14-4 with interest at 9 per cent, per annum, in all Rs. 2,237-11-8; for a declaration of his rights in the stream and its tributaries; and for an injunction restraining the Government from interfering with the rights claimed by him and from exercising or asserting any right in respect of the stream or its tributaries within the limits of the zamindari. The plaintiff died during the pendency of the suit, which was continued by his son, the first respondent in Appeal No. 33 of 1938 and the appellant in Appeal No. 60 of 1938, who, on his father's death, became the holder of the estate. In the trial Court the original plaintiff was referred to as the first plaintiff and the present plaintiff as ' the second plaintiff,' and it will be convenient to continue these descriptions. ,
2. The Subordinate Judge of Masulipatam, who tried the suit, held that the second plaintiff had ' full rights ' in the stream and its feeders within the limits of the estate and that he was entitled to use/the, water subject to the liability to pay cess in respect of water used in excess of what was required to irrigate an area of 2,724.57 acres of cultivated land. With regard to this area the Subordinate Judge found that a permanent exemption from the payment of water cess had been granted in 1867. He refused to grant a decree for a refund of the Rs. 2,237-11-8, but directed that the injunction asked for should issue. The Secretary of State for India in Council has preferred Appeal No. 33 of 1938 from the decree passed by the Subordinate Judge. He contends that the Subordinate Judge erred in holding that the second plaintiff was entitled to exemption from water cess in respect of the 2,724.57 acres and in issuing the injunction. The second plaintiff, as the appellant in Appeal No. 60 of 1938, contends that the Subordinate Judge should have held that he was entitled to withdraw water from the stream for irrigation purposes without any liability at all for water cess and therefore is entitled to a refund.
3. In the year 1854, the Government of Madras carried through a scheme for the irrigation of agricultural lands in the Kistna district. A bund was built across the Kistna river at Bezwada and channels were constructed to conduct the flow of water so arrested to the areas intended to be benefited. The stream with which this suit is concerned has several names. In the judgment it is referred to as ' the Gunderu,' but it is also known as the ' Kannikalamadugu ' and in this Court it has been referred to as ' the Kannikalamadugu,' as that is the name given to it in some of the important maps. The stream commences near Devarapalle in the Vallur estate, which lies to the north of the Devarakota estate. Formerly the ' Kannikalamadugu ' ran into an arm of the Kistna, known as the Puligadda, which lies to the south of the zamindari. It no longer flows into the Puligadda, but continues eastwards until it joins the sea near Masulipatam. An important question in this case is whether the Government of Madras stopped the flow into the Puligadda and constructed an artificial channel to conduct the water to the sea or whether the ' Kannikalamadugu ' forced its own way to the sea near Masulipatam. It is common ground that when the Kistna anicut was constructed the ' Kannikalamadugu 'was connected with it and that it has remained connected with it ever since.
4. The case for the Secretary of State for India in Council both in the trial Court and here has been that the 'Kannikalamadugu ' was never a natural stream, but merely a depression in the land through which rain water drained off during monsoon seasons and but for the connection with the anicut it would be dry for a great part of the year. This contention was not accepted by the Subordinate Judge, who held that the ' Gunderu,' as he preferred to call it, was a natural stream, and we consider that he was fully justified in his opinion. The Kistna district of the Madras Presidency receives the benefit of both the south-west and north-east monsoons and therefore before the stream was connected with the anicut. there must have been a flow of water in it for several months in the year. For the rest of the year it was no doubt dry, but this would not make it any the less a natural stream. In Stollmeyer v. Trinidad Lake Petroleum Company (1918) A.C. 485 the Privy Council held that a river may be fed by the rains directly, without any intermediate collection of the water in the bowels of the earth, and still be a river, and a river which naturally runs during the greater part of the year does not cease to be a river merely because at times it is accustomed to become dry. An owner of land upon a bank of such a stream has all the rights of a riparian owner as understood in English law. Since the connection with the anicut has been in existence, the stream in suit flows for most of the year. In the trial Court both sides attempted to prove what proportion of the water came from the anicut and what proportion could, be attributed to rainfall, but eventually they decided that it was not possible to form a reliable estimate and agreed that the proportions were not of importance. It is obvious, however, that a considerable proportion of the water in the stream does come from the anicut.
5. It is common ground that the stream belongs to the Government from point-R on the map marked as Ex. LXXIX down to the sea, because the Government made the waterway from that point. Point R is near the boundary of the Devarakota estate at its south-east corner. The Government claims that the stretch between point P and point R is also its own property, for the reason that the works which it had carried out commenced at point P. The second plaintiff claims that the works undertaken by the Government only commenced at point R and the claim was upheld by the Subordinate Judge. Between points P and R the Government has permitted pumps to be erected for the withdrawal of water from the stream for the purposes of irrigation of lands lying in the neighbourhood. The second plaintiff says that this infringes his rights as the riparian owner of the stream between points P and .R. Before deciding what are the rights of the parties to that part of the stream which flows from the anicut to point P, it will be convenient to decide whether the works undertaken, by the Government commenced at point P, or only at point R. If they commenced at point P admittedly the second plaintiff will have no rights in the stream below that point, and the extent of his rights above point P will depend on whether the, provisions of the Madras Irrigation Cess Act apply.
[After discussing the evidence, his Lordship continued : ]
6. Therefore in deciding whether the stream between point P and point; R vests in the Secretary of State we have these factors : (1) The extension of the ' Kannikalamadugu ' to the sea at Masulipatam was proposed in 1863 and by 1864 Rs. 2,000 had been spent on the project; (2) the work was to start near the village of Lakkapalli; (3) after the famine of 1876, further relief works were carried out in this district and lands were acquired from the zamindar for the purpose of continuing the ' Kannikalamadugu ' to the sea; (4) the map of the Kistna district, of the year 1877, which is confirmed by the map of the following year, shows that the '' Kannikalamadugu ' had been carried to the sea by the channel now in existence; (5) there is confirmation of this in the proposals made in 1885 to construct another drain running into the Dayapukalva; (6) the first plaintiff's father expressly recognised ownership of the whole stream in the Secretary of State and no right in the Zamindar was advanced until the first plaintiff instituted this suit in 1927; (7) it is common ground that the arms of the ' Kannikalamadugu ' which are shown as flowing into the Puligadda in the map of 1828 have disappeared; (8) there is no evidence to support the suggestion that the ' Kannikalamadugu ' forced its way east of point P naturally; and (9) it has not even been suggested that the zamindar did anything to improve the waterway, either as a drainage channel or a stream useful for irrigation purposes. In these circumstances it is, in our opinion, impossible for the second plaintiff to maintain the contention that he is the owner of the stream between points P and R. Consequently we hold that the stream is vested in the Secretary of State for India in Council from point P to the sea and that the second plaintiff has no rights in it from point P downwards. His rights in the lands adjoining the banks are, of course, not affected, but if he wants water from this part of the stream for the purpose of irrigating them, he must pay charges which are lawfully leviable under the Madras Irrigation Cess Act.
7. This brings us to the consideration of the question of the rights of the second plaintiff above point P. Undoubtedly he is the riparian owner from the point where the stream enters the zamindari in the north to point P, and unless the Madras Irrigation Cess Act applies he is entitled to withdraw water from the stream from this part for the irrigation of his lands lying to the north of point P, provided that he does not interfere thereby with the rights of others. Subject to the question of the application of the Madras Irrigation Cess Act his rights are those referred to by the Privy Council in Secretary of Stale for India v. Subbarayudu . In that case, however, the stream was not connected with an anicut, while in the present case the stream is The Secretary of State says that this makes all the difference and that the Government of Madras is entitled to levy water cess in respect of all water withdrawn by the plaintiff from the stream above point P for irrigation purposes. The learned Advocate-General on behalf of the second plaintiff, admitted that the Government had the right of draining off water from the anicut along this stream.
8. The provisions of the Act which have bearing here are contained in Section 1 down to the end of the first proviso. This part of the section reads as follows:
(a) Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to, or constructed by or on behalf of, the Crown, and
(b) whenever water from any such river, stream, channel, tank or work, by direct flow or percolation, or by indirect flow, percolation or drainage from or through adjoining land irrigates any land under cultivation, or flows into a reservoir and thereafter, by direct flow or percolation, or by indirect flow, percolation or drainage from or through adjoining land, irrigates any land under cultivation, and in the opinion of the Revenue Officer empowered to charge water cess, subject to the control of the Collector and the Board of Revenue, such irrigation is beneficial to, and sufficient for the requirements of, the crop on such land.
It shall be lawful for the Provincial Government before the end of the revenue year succeeding that in which the irrigation takes place to levy at pleasure on the land so irrigated a Separate cess for such water, and the Provincial Government may prescribe the rules under which, and the rates at which, such water cess shall be levied, and alter or amend the same from time to time:
Provided that where a zamindar or inamdar or any other description of land-holder not holding under ryotwari settlement is by virtue of engagements with the Crown entitled to irrigation free of separate charge, no cess under this Act shall be imposed for water supplied to the extent of this right and no more.
9. It will be observed that the Government is entitled to charge water cess whenever water from a work constructed by it by direct flow or percolation or indirect flow, percolation or drainage from or through adjoining land, irrigates land under cultivation, and in the opinion of the Revenue authorities the irrigation is beneficial to, and sufficient for the requirements of, the crop on the land, unless by virtue of an engagement entered into with the Crown a person is entitled to irrigation free of separate charge. In Secretary of State for India v. Swami Naratheeswarar : (1910)20MLJ766 , water which (lowed from a Government source submerged certain dry lands. The inamdar was compelled to raise wet crops with the aid of the water which he enclosed in his adjoining land out of the flood water. It was held that he was liable to pay water cess. The fact that before irrigating the inamdar's lands the water had flowed through two-fifths of a sheet of water included in the inam did not make it anytheless water from a Government source. The fact that rain water had become mixed with flood water was no ground for getting rid of the liability. All that the Act required was that water from a Government source should irrigate the land in question, and in the opinion of the Collector the irrigation should be beneficial to, and sufficient for the requirements of the crop.
10. This case was followed in Syed Hyder Ali Sahib v. Secretary of State for India (1933) M.W.N. 1457 and in Ayyanna v. Secretary of State : AIR1933Mad646 . The facts in the present case have much in common with the facts in Syed Hyder Ali Sahib v. Secretary of State for India (1933) M.W.N. 1457. In 1895, the Government of Madras completed an irrigation scheme known as the Periyar project. Before the construction of the Periyar main channel the lands , there in suit were irrigated by a stream which emptied itself into a tank. As the result of the construction of the channel, Periyar water also flowed into the tank. It was held that the cultivator was liable to pay water cess. The Irrigation Cess Act empowered the Government to levy the cess whenever water flowing from a work constructed by Government was used for irrigation purposes. The Act was not concerned with the question whether the water had or had not become the property of the person using it.
11. We do not doubt the wisdom of these decisions, but even if we were inclined to question them they are binding on us and consequently we must hold that, subject to any special agreement, the Government is entitled to impose the cess in respect of water withdrawn by the second plaintiff from the stream above point P, notwithstanding that he owns the bed and both the banks. It has not been suggested that the water in the stream which flows from the anicut is insufficient for irrigation purposes. In fact, for a part of the year the whole of the water in the stream must come from the anicut.
12. The only question which remains is whether the second plaintiff is entitled to escape payment of water cess by reason of an engagement with the Government. The Subordinate Judge held that the second plaintiff was entitled to have water for the irrigation of 2,724.57 acres free of charge. In the course of the arguments it was conceded that the Subordinate Judge here made a mistake. The engagement which was entered into 1865 with regard to the 2,724.57 acres referred to water taken from another stream. Consequently, the declaration given by the Subordinate Judge must be cancelled. The second plaintiff, nevertheless, claims that he is entitled to a free supply of water to a limited extent from the stream above point P The parties have agreed that this question shall not be decided in this suit, but settled on an application to Government to fix the area.
13. The result is that there will be a declaration that the second plaintiff has the rights of a riparian owner in the stream down to point P, subject to liability to pay water cess, but no right in the stream below point P, and the injunction granted will be discharged. The question of whether the second plaintiff is entitled by reason of an engagement with the Government to take free of charge some water for irrigation purposes from the stream above point P will be decided outside this suit. As the Secretary of State has succeeded, Appeal No. 33 of 1938 will be allowed with costs and Appeal No. 60 of 1938 will be dismissed with costs, in both cases against the second plaintiff. In the former appeal we fix the advocate's costs at Rs. 1,000 and in the latter appeal at Rs. 500.