JUDGMENT
Srinivasa Aiyangar, J.
1. Having been afforded the opportunity of perusing beforehand the judgment of my learned brother in this second appeal, I have deemed it unnecessary to deal at any great length with the arguments in this case or the decisions that were cited.
2. The question of the liability of zamindar or inamdar or as for that matter, any other landholder for the payment of cess for water used for purposes of cultivation depends undoubtedly on the extent to which he is entitled to supply of water free of charge. The extent to which he is so entitled to such free supply is, in the absence of a clear and definite arrangement or engagement, that is to say in most cases, determined by the accustomed supply of water at the time of the grant. In some cases and where there are no other means of determining such extent the pieces of land which are entitled to supply of water for wet cultivation and the number of crops for which such plots are entitled to such supply will undoubtedly be the true measure. But such a measure can be regarded as proper, generally speaking, only in cases where the irrigation of the lands in question is directly from the source of irrigation belonging to the Government. But wherever, having regard to the physical condition or situation the lands are irrigated from an intermediate source of irrigation which can be regarded only as belonging to the landholder, then the extent of the accustomed supply by Government can properly and reasonably be measured only by such intermediate means. If such intermediate means should be a channel taking its rise from a Government source of irrigation, then it may be measured by the size of the sluice, the hours of passage of water or the size of the channel, and in the case of a tank, by the size of the tank. In these latter cases there being no question of return to the Government source, of the water passing to or through the landholder’s means of irrigation, the proper measure of the accustomed supply so far as the Government is concerned is only the tank or the channel, and in such cases the proper measure has no relation to or bearing upon the extent of the land cultivated or of the number of crops thereon. On the finding, therefore, of the lower appellate Court that there has been no alteration in the size or capacity of the supply channel or of the tank capacity, it follows that the lower appellate Court was wrong in taking the extent of the wet crop cultivation in the village as the true and proper measure. I, therefore, agree with my learned brother that the second appeal should be allowed and that the decree of the District Munsif should be restored with costs throughout.
Curgenven, J.
3. The plaintiff who described himself as the managing trustee of the Jiluppakudi Devasthanam and as the proprietor in that capacity of the shrotriem village of Alappirandan in the Tanjore District, which is an inam village belonging to the said Devasthanam, sued the Secretary of State for India in Council for the refund of a sum of Rs. 127-8-5 as water-cess illegally levied from him under the Irrigation Cess Act, 7, 1865. He pleaded that there was an engagement between the inamdar and the Government according to which he was entitled to claim exemption from this charge.
4. The case for the Government, as set forth in the written statement, was that the plaintiff was entitled to free irrigation only in respect of a wet crop grown on the mamul wet lands and of a double crop grown upon a certain limited area of those lands, and that the water-cess was leviable because he had grown and irrigated a wet crop on a portion of the dry lands and had raised a second crop on a portion of the wet land in excess of the recognized double crop area. As thus set forth, the ease was that free irrigation was allowed only in respect of that portion of the inam which is classified as mamul wet. But the learned Government Pleader has argued the alternative case that water-cess is chargeable because an area in excess of the original wet area has been irrigated. The charge was levied under Section 1, Madras Act 7, 1865 (as amended by Madras Act 5, 1900) and the plaintiff claims that it was improperly made because it infringed an engagement between himself and the Government such as is allowed for by the first proviso to that section. The relevant portion of that proviso recites that
where a zamindar or inamdar…is by virtue of engagements with the Government entitled to irrigation free of separate charge, no cess under this Act shall be imposed for water supplied to the extent of this right and no more.
5. The question thus is: What is the extent of the inamdar’s right to irrigation free of separate charge? There is no sanad now forthcoming to show upon what terms the inam was granted; nor indeed is it likely that it would have referred in any definite terms to water rights. We have to rely upon an extract from the inam register, compiled in 1863, for any light upon this question. The entries in this register show that at that time there was a wet area of 321.94 acres and that there was a tank area of 344 40 acres. These figures, it may be said, afford two rough criteria of the extent to which the inamdar’s right to take water was recognized or, in other words, of the actual amount of water which he was then receiving free of charge, one being the quantity required to supply tank water-spread of the given area and the other being the quantity required to irrigate wet crops up to the specified acreage. A comparison of each of the two areas with the corresponding present-day figures might show whether or not the right had been exceeded, and if so by how much. The question in this case, as in many similar cases previously decided, is which of these two tests to apply. It is plain that they are only approximate, and may even be fallacious, tests. As regards the former, while the tank area may remain the same, the quantity of water actually taken may be increased by replenishment as earlier supplies become reduced, or even by deepening the tank. As regards the latter, a greater area may be irrigated from a tank of fixed capacity by a more economical use of the water, or by fully utilizing water which had previously not been needed and had run to waste. Indeed, the only satisfactory measure of the right would be by actual computation of the volume of water admitted into the tank. Neither, however, have we any such figure, nor, so far as has been shown, has there been any express pronouncement by the Government, either at the time of the inam settlement or at any other time,, as to what is the precise nature of the engagement between themselves and the landholder upon this subject, or upon what data it should be based. It has accordingly been left to the Courts, in cases of this class, by a construction of such records as are available, to endeavour to elicit the true principle on which claims to impose water cess should be decided.
6. The course of decisions in this Court shows that sometimes the one test and sometimes the other has been adopted. For an example of a charge which was deemed to have been rightly levied, because the wet area under cultivation was in excess of that recorded at the inam settlement the learned Government Pleader has referred to Chidambara Rao v. Secretary of State [1903] 26 Mad. 66, It may be that that case is distinguishable on the facts from the present one, because the irrigation was derived not, as here, from a limited tank area within the inam, but from the Kistna anicut. It may have been fair to infer that any increase in the extent of the area irrigated necessarily involved an increase in the water used. In Secretary of State V. Ramanuja Jeer Swamigal [1915] M.W.N. 636, the point does not seem to have been argued whether the method of charging water cess upon the area irrigated in excess of the mamul wet was the correct one, so that the case does not afford much guidance. It will serve no useful purpose further to discuss this class of cases, because I am unable to resist the conclusion that the judgment of the Privy Council in Balasurya Prasada v. Secretary of State A.I.R. 1917. P.C. 42, requires us to adopt the principle followed in an early Madras case, Secretary of State v. Perumal Pillai [1901] 24 Mad. 279; that the extent of the right should be ascertained by the dimensions of the irrigation system available to the landholder. The judgment in the Urlam case A.I.R. 1917. P.C. 42 reversed the decision of this Court in Mahalakshmamma Garu v. Secretary of State [1910] 34 Mad. 295, in which the test applied was the increase of acreage under irrigation. It is true that that case dealt with zamindari and not inam lands, and an attempt has been made to show that for that reason it should not be adopted as authority here. This has been the view taken by the learned District Judge in reversing the judgment of the District Munsif, who following the Urlam case A.I.R. 1917. P.C. 42, gave the plaintiff a decree. The District Judge discovers two grounds for not applying the decision, one being that there is nothing in the present case corresponding to the kabuliyat relied upon in the Urlam case A.I.R. 1917. P.C. 42, and the other that the plaintiff cannot invoke the policy of the Government that was invoked in that case. As regards the former of these attempted distinctions I find from their Lordships’ judgment, that no mention of water rights was to be found in the Urlam kabuliyat. It is true that it alludes to the advantages likely to accrue to the zamindar and to his people by the fixing of the levy on a permanent basis. But I do not think that a general observation of that nature would have been taken as a ground for dismissing the Government’s claim to impose water cess, had it been found that the original right to take water had been exceeded.
7. Then the learned District Judge argues that the effect of the permanent settlement was to vest the channels with their head sluices and branch and subsidiary channels in the zamindars within whose zamindaris they were situated, but that circumstance is surely paralleled in the present case by the fact that the tanks from which the inamdar draws his supply lie within the inam. Nor although the policy of the Government towards inamdars may not have been announced in the express terms used towards zamindars, is there reason to suppose that, if announced, it would have differed in any substantial respect. The essential i basis for the decision appears to me to lie in the circumstances, adverted to at p. 904 [of I.L.R. 40 Mad-Ed.] that the ownership of the channels, etc., passed to the landholder under the sanads. The argument used is that obviously some right or easement of taking water from the river, i. e., the Government source, must pass, and similarly in the present ease some right of easement must pass to the inamdar of taking water into his tanks. “The only question,” their Lordships say, “is as to the measure of this right” and they continue:
In their Lordships’ opinion, the right must be measured by the physical conditions, such as the size of the channel, or the nature and extent of the sluices and weirs governing the amount of water which enters the channel, and not by the purposes for which the grantor or his tenants have been accustomed to use water from the channel prior to the date of the grant.
8. Applying this principle of measurement here, the lower Courts concur in finding that the original tank area, as shown in the inam register, has not been increased and accordingly the presumption must be that the right or easement has not been exceeded. In a recent case Yahya Ali Saheb v. Secretary of State A.I.R. 1928 Mad. 97, also relating to an inam, Ramesam and Madhavan Nair, JJ., had a similar question to decide and on the authority of the Urlam judgment, which they deemed it equally applicable to the case of an inam decided it in the same manner. Following these decisions I conclude that the second appeal must be allowed and the District Munsif’s decree restored with costs of the plaintiff throughout. Time for satisfaction of the decree by Government, three months.
