1. Plaintiff filed a suit for refund of water-lax collected from him by Government for Fasli 1334. The trial Court gave him a decree which was reversed in appeal and against 1 he decree of the loner Appellate Court he prefers this Second Appeal. Plaintiff owned Re-S. No. 331 of Bhimavaram which was entitled to irrigation under the Ayacut of Nara-simhapuram channel. Admittedly an unauthorised blind was put across he Rayalam Murugu drain and from the channel so bunded up water flowed to the plaintiff's field. Admittedly also, whether the plaintiff transplanted his field before this water came on his land or after it, his crop was standing on the land simultaneously with the arrival of the water on his land from the unauthorised source. The attention of the trial Court was not drawn to the Full Bench decision in Secretary of State for India v. Mahadeva Sastrigal : (1917)32MLJ411 which governs the present case. There has been in the present case a certificate from the Collector that the irrigation was beneficial to the crop. In that case the following questions were referred to the Full Bench:
(1) Whether it is obligatory on the Collector to certify himself under Section (1) of Act VII of 1865 that the irrigation is beneficial ?
(2) Whether he can delegate this authority to a subordinate official ?
(3) Whether the fact that the Collector has sanctioned legal proceedings and has defended a suit in respect of the tax is a sufficient compliance with the provision of Section 1 ?
(4) Whether the words 'irrigation by percolation' over cases where sub-soil water is taken by the roots of trees.
2. I may observe that as regards question No. 4 the learned Judges held the irrigation by percolation would cover such cases but as we are here admittedly only concerned with surface irrigation that question does not arise. It was not even contended in that case that is the Collector had certified in writing that the irrigation was beneficial, this could be questioned in a Civil Court. The only question raised was whether it was obligatory on him to make the certificate himself and whether the fact that he had sanctioned legal proceedings and defended a suit in respect of the tax is sufficient compliance with the provision of Section (1) (b). On this point the learned Judges say that the answer to the first question referred is in the negative and that being so the second and the third questions do not arise. It follows, therefore, that the mere defence of a suit (and there is here as well the certificate of the Collector) would by itself be sufficient compliance with the section. The only question then open to the Court to consider appears to be as stated at p. 63 whether particular land is irrigated by water derived from a Government source or not. Here it is not denied that the water is from Government source. The learned Advocate for the appellant relied on Bhogarazu Kanakamma v. Secretary of State for India : AIR1928Mad145 . This, although subsequent to the Full Bench decision is a decision of a single Judge, and the Full Bench decision does not appear to have been brought to his notice. The learned Judge no doubt lays down that the water must have benefited the crop but he does not discuss the question as to whether the Court is precluded from deciding the matter itself in consequence of the Collector's certificate. If this decision is to be understood as opposed to the Full Bench decision I cannot follow it.
3. It was sought to get round the Full Bench decision in three ways in the present case. The first argument was that though the Collector's decision that the crop was benefited by the water could not be attacked directly, it could be attacked by showing that the reports on which it was based were incorrect. That is an argument which requires no further notice.
5. The second argument practically is that while the Collector might declare the crop to have been, benefited by the water, still that crop may not have been irrigated by the water which is opposed to common sense, A crop cannot be benefited by water which does not irrigate. A field no doubt may be irrigated (in the sense of being moistened) where there is no benefit to the crop for the irrigation might even injure it, but the reverse position is impossible.
6. The third argument raised is that the Collector's decision that the crop was benefited is not a final decision on the question whether there was a crop or not. That is academic in the present case because, as I said above, whether this crop was transplanted before or after the arrival of the water from the unauthorised source, it is not disputed that the crop and the water were at one period and for some time co existent on the land. Therefore, the question of there not being a crop on the land does not arise and it is not necessary for me to express an opinion as to whether the Collector's decision can be questioned by showing that there was no crop at all on the land. Looking at the Full Bench decision the order of the lower Appellate Court appears to be correct and I have not thought it necessary to call upon the respondent to reply.
7. The second Appeal fails and is dismissed with costs.
8. In this case had the Full Bench decision been brought to the notice of the trial Court there might have been some ground for giving leave to appeal but as it was not brought to its notice, and appears to settle the question, leave is refused.