1. The plaintiffs have brought this suit, for recovering from the 1st defendant, a sum of Rs. 1,053-4-0 said to have been illegally collected from them, by the 1st defendant. The plaintiffs are the owners of Zamindari land. They cultivated paddy with the help of water, from the Kistna canal. The 1st defendant levied prohibitive assessment from the plaintiffs and the 2nd defendant on the ground that they irrigated their land, with water from the 1st defendant's canal, without permission from the Government servants. The District Munsif decreed the suit in plaintiffs favour; but the Subordinate Judge, on appeal, reversed the decree of the District Munsif and dismissed the plaintiffs' suit. The plaintiffs and the 2nd defendant have preferred this second appeal. The first contention urged is that the Subordinate Judge erred in holding that the period of limitation applicable to the suit was 6 months, from the date on which the cause of action arose and that the period of limitation applicable to a case of this kind is one year and not six months. This point was settled by the decisions in Secretary of State v. Venkatratnam A.I.R. 1923 Mad. 652 and The Secretary of State v. Nagaraja Aiyar A.I.R. 1923 Mad. 665 and the plaintiffs' suit is not therefore barred by limitation.
2. The next question is whether the plaintiffs took water without permission from the Government servants. The Subordinate Judge, in dealing with this point in paragraph 14, has attached importance to the fact that the Tahsildar was taken to task and reverted as Sub-Magistrate. The fact should not have been allowed to weigh with the Court, in determining whether or not the Tahsildar gave permission to the plaintiffs, to take water from the 1st defendant's canal. The Court is not in possession of facts, which led to the Tahsildar being found fault with and reverted as Sub-Magistrate. Even if he was dealt with by his superiors for anything that he did in regard to the supply of water to the plaintiffs. I do not think that it is a circumstance which ought to weigh with a Civil Court, in determining whether the Tahsildar did give permission and whether that permission is valid or not. The Subordinate Judge's finding on this question, is vitiated by the fact that he assumes that the Tahsildar had no power to grant oral permission in this matter and by assuming that the fact that he was found fault with by his superiors, shows that his action was irregular. There is no clear finding by the learned Subordinate Judge that no permission was granted to the plaintiffs for the use of water. Revenue Board's Standing Order No. 4 empowers the Tahsildar to give permission to a ryot for taking water from a Government source. Order 4, Rule 10 is as follows:
No Government water is to be taken under these rules, without express sanction of the head of the village, Revenue Inspector, or higher authority, or an officer of the Public Works Department, where the works are in charge of that department.
3. There is nothing in Order 4 or in the appendix to Order 4, to prevent the Tahsildar from giving oral permission to a person to take water from a Government irrigation source. No doubt an application has to be made in the proper form and the Tahsildar has to pass his orders. After the application has boon made in the proper form, if the water is urgently needed, there is nothing in the ruling, to prevent the Tahsildar from giving oral permission and afterwards recording it in the usual way. In this casa, the plaintiffs applied in time for supply of water to their fields. They had been given water for three faslis, before the one in question. Water was allowed to flow into the plaintiff's tank, after the application was made. The learned Government Pleader argues that the opening of the sluice in the canal for letting water into the plaintiffs' tank would not lead to any presumption that the act was done with permission and he relies on a circular order of the Collector, dated 23rd November 1917, in which he laid down under what conditions permission should be granted for the use of water. In the first place, this order cannot override the provisions of the Board's Standing Orders, which have the approval of the Government. Under Order 4, the Tahsildar is empowered to grant permission for supply of water. The Board's Standing Orders are published in the Gazette and the ryots are supposed to be aware of them. But any circular order of the Collector cannot be presumed to be known to the people at large. The order of the Collector cannot override the provisions of the Revenue Board's Standing Order No. 4.
4. It is next urged by the learned Government Pleader that the Subordinates of the Public Works Department might have allowed water to flow into the plaintiffs' tank. There is no evidence that the Subordinates of the Public Works Department let water into the plaintiff's tank, without a proper order from the superiors. When the supply was stopped the plaintiffs applied to the Collector by petition dated 5th March 1918, Ex. G. for urgent orders to the Public Works Department authorities, for opening the canal and letting water to the plaintiffs' tank. The Collector by his proceedings dated 6th March 1918, Ex. H, referred the petitioner to the Executive Engineer, Kistna Eastern Division, for orders with reference to his application for water for his crops. After this date, the sluices in the panel were opened and water was let into the plaintiffs' tank. The learned Government Pleader says that it must have been done by some Subordinates of the Public Works Department. It is impossible to follow that argument. As observed by the District Munsif in paragraph 10 of his judgment:
The orders passed by the Executive Engineer in the matter have not been produced in the case; but it is admitted that the sluice was opened soon after the date of Ex. H and the plaintiffs had been using the water till the canal was closed. The Government has not chosen to file any orders passed by the Executive Engineer, or to examine some responsible officer to show that no permission was granted.
5. Under the Board's Standing Order No. 4, an officer of the Public Works Department has power to allow water to be taken for irrigation, when the works are in charge of the Public Works Department. It is not suggested that the Kistna canal is not under the supervision of the Public Works Department authorities and that water was taken, without their knowledge or their consent. It is no doubt true that the 1st defendant cannot be bound by the unauthorised acts of his servants or agents. But when prohibitive assessment is collected, from a person, on the ground that he took water unauthorisedly and when it is found that he did not take water clandestinely, but after application to the proper authorities and when it is found that the sluices under the control of the Public Works Department were opened, so as to allow water to flow into the plaintiffs' tank, the onus is heavily on the 1st defendant to show that his agents or servants acted without a proper authority. On the assumption that the water was taken without permission he has collected prohibitive assessment. The case might be different, where a person wants to rely upon an act of the 1st defendant's agents, for the purpose of saddling the 1st defendant with liability in which case, the onus would lie on such a person to show that the agents or servants were authorised to do the act, which is pleaded, as giving the right to proceed against the first defendant. But where from the facts it is clear that the officers of the Public Works Department allowed water to flow into the tank and when the rules do empower them to let water into the plaintiff's tank, it must be shown by the 1st defendant that the officers acted without authority. There is no such evidence. The plaintiffs have done what was required to be done under the rule and the long delay in the disposal of their application and the fact that even after the supply of water was once stopped, it was allowed to flow into jibe plaintiffs' tank, by opening a sluice on the application of the plaintiff's clearly go to show that the water was not taken without the permission of the authorities who had the power to grant such permission.
6. I hold that the plaintiffs did not take water to their field unauthorisedly and reverse the decree of the Subordinate Judge and restore that of the District Munsif, with costs in this Court and in the Lower Appellate Court.