1. The appeal is by the plaintiff who seeks to recover a sum of money levied from him by way of water cess. His suit was decreed by the trial Court, but dismissed on appeal. The case is a perfectly simple one. The main question at issue was whether the plaintiff had used the water of a particular channel which he denied having done. Both parties went to trial on the mutual assumption that this channel was a surplus channel and on an admission of the plaintiff that his source of irrigation was another channel called Chinnamadai. The real question was, therefore, as I have already observed, whether the plaintiff had used the water of the surplus channel. The Munsif allowed himself to be misled, to the extent of finding that the channel was not a surplus channel at all and that the real issue on the case was misleading and unnecessary. Matters were put right by the lower appellate Court. Mr. Subramanya Iyer argues that the lower appellate Court was wrong in interpreting the pleadings too strictly and cited a number of rulings to show that, where the parties have been allowed by the trial Court, to let in evidence on case not set up on the pleadings, the appellate Court should not reverse the decision of the trial Court merely on the ground that the case set up at the trial varied from that set up in the pleadings I have yet to come across a case in which a plaintiff has been allowed, without amending his plaint, to succeed on a case which directly negatived everything he had alleged in his plaint. In any event, even if the point was good one, it would be absurd to remand the appeal. The District Munsif went completely wrong on the question of fact. Plaintiff's own evidence and the commissioner's report show with complete clearness that the channel has no water in it except when the tank is full, in other words, it is a surplus channel.
2. Mr. Subramanya Iyer's next argument is that, as the registered source of irrigation is the tank itself and the water in the channel in question comes from the tank, his client has been wrongfully, penalized. His client has admitted in his plaint that his authorized source is the Chinnamadai and his admission is confirmed by Ex. IV. The argument therefore fails. The last point taken is that, as under the Irrigation Cess Act no penalty can be levied unless the water was sufficient for the crop and in the fasli in question the crop failed, no penalty should have been imposed. That however, is a matter to be settled by the Collector whose opinion as to the sufficiency of the water is final, subject to an appeal to the proper authority: vide Secy of State v. Swami Naratheeswarar  34 Mad. 21.
3. The appeal is dismissed with costs.