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1. The only question in this appeal is whether the river Kaveri is navigable in the neighbourhood of Komarapalayam. This is a question of fact, and the learned District Judge has decided the question in the negative.
2. The learned Government Pleader contends that on the finding that the river is navigable during ten months in the year, he is entitled to succeed, for there need notice enough water in the river for purposes of navigation throughout the year in order to make it navigable river. The question therefore is whether the term “navigable” can be applied to a river which is navigable only during a substantial portion of the year. The Government Pleader relies upon American decisions and the observation of Lord Blackburn in Orr Ewing v. Colquhoun (1877) 2 AC 839 at 847. for the position that it is sufficient if the river is navigable during a substantial portion of the year in order to make it a navigable river. This point has been specifically decided by a Bench of this Court in Secretary of State for India in Council v. Venkatanarasimha Naidu (1920) MWN 209. In that case both the learned Judges considered the American authorities and came to the conclusion that in order that a river may be termed navigable it must be navigable throughout the year. They relied upon The Secretary of State for India v. Bijoy Chand Mahatap (1918) ILR 46C 390. in which it was held that the river must be navigable throughout the year. Fletcher, J., observed at page 398:
Now in this country the test as to whether a river is navigable is whether it allows of the passage of boats at all times of the year: Chunder Jaleah v. Ram Churn Mookerjee (1871) 15 WR 212.
3. This case went on appeal to the Privy Council and the decision of the Privy Council is reported in Secretary of State for India v. Maharajah of Burdwan (1921) ILR 49 C 103 : 42 MLJ 61 (PC). The principle laid down by the Judges of the Calcutta High Court was impliedly approved by their Lordships of the Privy Council. So far as the Indian Courts are concerned, the two cases,
4. The Secretary of State for India v. Bijoy Chattd Mahatap (1918) ILR 46 C 390. and Secretary of State for India in Council v. Fenkatanarasimha Naidu (1920) MWN 209. may be taken as correctly laying down the law. It is suggested for the appellant that boats ply all the year round The real test of navigability is that ordinary boats which generally ply in the river must be able to ply all the year round. Even when the water is very low, flat-bottomed pleasure-boats carrying one or two persons may be able to go up and down the river, but that would not be sufficient to make th river navigable in the sense in which the term is used. The second appeal fails and is dismissed with costs.