Judgement

Appeal from a judgment and decree of the High Court (October 27, 1915), affirming a decree of the District Judge of Vizagapatam.

The suit was brought by the respondent, the Maharaja of Bobbili, for the refund of Rs. 695 levied upon him in 1907 under the Madras Irrigation Cess Act (VII. of 1865, Madras), and paid under protest, and for a declaration that he was entitled to use the water for irrigation in the village of Narayanapuram free of the cess. The terms of Madras Act VII. of 1865 (amended by Madras Act V. of 1900), ss. 1 and 4, are set out in the judgment of their Lordships. The respondent in his plaint stated, inter alia, (a) that the channel was constructed upwards of a century ago by the then zamindar of Palkonda, a neighbouring zamindary now in the possession of Government; (b) that his, the respondents, lands had ever since been irrigated by water from the channel, and that he and his predecessors in title had from time to time repaired the channel and constructed sluices in it at their own expense ; and (c) that he was entitled to the irrigation of his lands from the channel free of charge as a riparian proprietor and by virtue of long user, custom, prescription, and easement, and according to an understanding and agree ment between his predecessors in title and the then zamindars of Palkonda and (since the Palkonda estate was forfeited and became the property of Government) between his predecessors in title and himself on the one hand and the Government on the other.

By his written statement in answer the appellant stated, inter alia, that both the river and the channel were the absolute property of Government and were a Government source of irrigation; that there was no such understanding or agreement nor any such right, by user, custom, prescription, or easement as alleged ; and he claimed to be entitled to levy water rate under Madras Act VII. of 1865 upon all lands in the suit village found to be in excess of the permanent settlement wet area on which a second wet crop was now raised.

Issues were settled and a considerable body of evidence was adduced.

The District Judge was of opinion that it was unnecessary to come to a finding upon an issue whether the Suvarnamukhi River belonged to the Government, the only question being whether the Government was entitled to levy cess for water taken from the channel. As to the latter he found that it was constructed by the zamindar of Palkonda between 1690 and 1780, that the Government had succeeded to his rights by the forfeiture of the zamindari in 1833, and that it belonged to the Government. He said that the plaintiff could have no natural rights based upon riparian ownership, as the channel was an artificial one; and he found against the alleged custom. He found however (in a passage set out in the judgment of their Lordships (1)) that in 1814 the Palkonda zamindar admitted the right of the respondents r predecessor to irrigate his land from the channel through five sluices ; further that in 1865, 1901 and 1903 the Government had recognized the respondents right to irrigate his lands from the channel, had allowed him to construct masonry sluices at his own cost, and had made no improvement in the supply since the forfeiture in 1833 ; that no charge was made until the cess was levied in 1907. He did not think it necessary to decide whether an easement acquired by sixty years enjoyment against Government would operate as a bar to the imposition of a water cess under the Act because in his opinion there should be inferred from the facts a grant or agreement by the zamindar, and the Government could only succeed to the zamindars title to the channel subject to rights already acquired.

The District Judge accordingly made a decree declaring that the plaintiff was " entitled to take and use the water of the channel flowing in the customary manner through the four sluices now existing within the limits of his village of Narayanapuram free of any charge for irrigat