1. The Collector levied water-cess from the tenant of a zemindar for Periyar water taken for irrigation through another Government stream called the Suruliyar. We do not think there is any foundation for the contention that the water was not supplied from a stream belonging to Government, The first and most important question argued was that the assessment upon the zemindari ryot was illegal. Under Section 1 of Act VII of 1865, the cess is imposed upon the land. By Section 1 of Act II of 1834, it is enacted that public revenue due on land shall be taken to include cesses payable to Government on account of water supplied for irrigation. Is a zemindari tenant, who uses the water of a Government Stream, for which his holding becomes liable to pay a cess to Government, a landholder for the purpose of Act II of 1864 'Landholder' is defined as comprising, amongst others, 'all holders of land in any way subject to the payment of revenue direct to Government.' That the land is not so subject is plain from the provision contained in Act VII of 1865. There is no definition of the phrase 'holder of land.' As regards lands under zemindari settlement, the zemindar is the landholder. With reference to land under inam settlements, the inamdar is the landholder. In either of these cases, it is difficult to suggest that a tenant in occupation under a zemindar or inamdar is liable to pay the peishkush or the quit rent to Government. So also it may be said, with reference to lands, under ryotwari settlement ; it is the registered pattadar and not the under-tenant that is the landholder liable to pay revenue to Government. The decision in Subramania Chetty v. Mahalingasami Sivon 33 M. 41 : 19 M.L.J. 627 : 3 Ind. Cas. 624 : 6 M.L.T. 198, is merely authority for the position that the registered pattadar under ryotwari settlement and not his transferee, who, without being so registered, may be in possession of the property, is the landholder under Act It of 1864 and, in case the revenue is in arrear, the defaulter. No general rule is there laid down that in all cases the registered proprietor is the landholder and none else. We may agree that, when there are registered proprietors under a particular settlement, other persons are not to be brought in as well under the head of landholders by virtue of the general phrase 'all holders of land in any way subject to the payment of revenue direct to Government.' The land being subject to the payment of a cess to Government, which is, therefore, revenue and that liability not being under a settlement, zemindari or inam or ryotwari, any person who can be deemed to be the holder of that land must be comprised in the definition of 'landholder.' We feel compelled to hold that the zemindari tenant in occupation is the holder of land subject to the payment of revenue direct to Government in respect of the water, cess and, therefore, a landholder, who becomes a defaulter under the Act. We must, therefore, over rule the contention that the demand issued against the plaintiff was illegal.
2. It is argued that the Collector was not entitled to levy one and a-half times the cess sanctioned by Government under rules made in pursuance of Section 1 of Act VII of 1355. The Munsif held that the levy of penal assessment, as he called it, was illegal. The District Judge, on the other hand, was of opinion that the assessment was not penal or prohibitory but only the imposition of a differential rate in case Government water was used without sanction. Exhibit VI which is an order of Government provides as follows--'If water is taken without due sanction, an extra water-rate will be charged under scale laid down for ayan lands under Rule 9.' Rule 9, to be found at page 20 of the printed record, provides a differential rate of one and a half times the ordinary water-rate. We think the question of the validity of a prohibitory rate does not arise in this case. It is unnecessary to consider the question whether the payment was voluntary or whether the claim for the refund of the cess levied is barred by limitation. We must dismiss the second appeal with costs.