Sankaran Nair, J.
1. The plaintiff's case in the plaint is that without his consent the defendant took water from his tank, raised a wet crop on his land and enjoyed it and he is, therefore, entitled to claim water-cess which, as it is not claimed under any statute or contract, means, I presume, damages.
2. The defendant denied taking any water from the tank to his land and in fact that there was any water in the tank.
3. It appears to have been admitted by the defendant that when any crop is raised with the aid of tank water, then a teerwa at the rate of Rs. 5 an acre is paid by him.
4. The Munsif simply states that there was no crop for want of water and, therefore, the defendant is not liable to pay. The case cannot be disposed of on this finding only.
5. If there is a contract express or implied, under which the defendant is entitled to take water, then the plaintiff's permission is not necessary and the question will he whether the defendant is bound to pay under the contract for the water received or only if he is able to take or is allowed sufficient water to raise a crop.
6. If there is no contract and the defendant is a trespasser, then the plaintiff would be entitled to damages.
7. The fact that there was no crop would be evidence that no sufficient water was taken or allowed. It will not be decisive of the question unless it is a condition of the contract that the defendant must be able to raise a crop. The Munsif will submit a revised finding on the question whether the plaintiff is entitled to any, and if so what amount from the defendants with reference to the above observations.
8. The finding should be submitted within six weeks, and six days will be allowed for filing objections. The parties may adduce fresh evidence as regards the issue.
9. In compliance with the order contained in the above judgment, the District Munsif of Bezwada submitted the following.
1. Claim by the plaintiff for the recovery of water-tax at Rs. 6 per acre for Fasli 1316 from the defendants as they used the water of Zamgamvari tank belonging to the plaintiff.
2. Defendants contend inter alia, that they did not take any water to their lands as there was no water in the tank for want of rain.
3. My predecessor dismissed the suits on the ground that there was a failure of crop for want of water.
4. On revision the High Court has sent the same for finding on:
Whether the plaintiff is entitled to any and if so to what amount from the defendants.
5. On the evidence I am not satisfied that there was a contract express or implied.
6. The question for decision is whether the plaintiff is entitled to any amount towards damages and if so, what is that amount. It is in evidence that the defendants took water from the plaintiff's tank for a month or a month and a half. It is true there was a failure of crop for want of water during the fasli. But that does not matter. I am of opinion that the plaintiff is entitled to recover some damages for the unauthorized use of water by the defendants. On a careful consideration, I think that Rs. 2-0-0 damages may be allowed to the plaintiff. This is my finding on the above issue.
10. These petitions coming on for final hearing after the return of the finding of the lower Court, the Court delivered the following
11. The objections are not pressed. The finding is accepted. It is decreed accordingly. The petitioner is entitled to proportionate costs.