Judgement

Appeal (No. 34 of 1931) by special leave from a decree of the High Court (April 19, 1927) reversing a decree of the Subordinate Judge of Rajahmundry (February 24, 1924), which affirmed a decree of the District Munsif.

The respondents were the legal representatives of the deceased plaintiff who, as pujari of a temple, owned about twelve acres of land within the zamindari of Guttenadivi under a darmilla inam, i.e., an inam granted by the zamindar after the permanent settlement of the estate. The land was bounded by a tidal channel, known as Chilapa kalva, which connected with one of the branches by which the river Godavari reaches the sea ; upon the other side of the Chilapa kalva was a Government village.

In fasli 1327 ( 1917-18) the plaintiff took water from the Chilapa kalva for irrigating the inam land, and the Government thereupon imposed upon him a water-cess of Rs. 8-5-8 under the Madras Irrigation Cess Act (Mad. Act VII. of 1865, as amended by Mad. Acts V. of 1900, II. of 1913, and VIII. of 1914). The relevant provisions of the Act appear from the judgment of the Judicial Committee.

The plaintiff, having paid the cess under protest, filed the present suit, alleging by his plaint that he had a riparian right to take water from the Chilapa kalva for cultivating his land without payment of cess and claiming a refund. By an amendment he alleged an immemorial right in his predecessors to take the water, but that allegation was negatived by the first two Courts and was not argued in the High Court.

The District Munsif dismissed the suit, and his decision was affirmed on appeal to the Subordinate Judge. An appeal to the High Court (Kumaraswami Sastri and Ramesam JJ.) was allowed by a judgment delivered by the latter learned judge and reported at I. L. R. 50 M. 961. The grounds of the decisions of the three Courts are stated in the present judgment.

The Judicial Committee granted special leave to appeal upon the terms that in any event the appellant should pay the respondents costs as between solicitor and client.

1931. Oct. 19, 20, 23. Dunne K.C. and Dube K.C. for the appellant. The Subordinate Judge (affirming the Munsif) found that the Chilapa kalva was navigable for big boats during six or seven months of the year and for fishing boats during the rest of the year. The facts so found were binding upon the High Court under ss. 100, 101 of the Code of Civil Procedure, and they constituted the Chilapa a navigable stream. That it was tidal was not disputed. The Chilapa kalva being both tidal and navigable its bed was the property of the Government Naresh Narayan Roy v. Secretary of State for India (( 1922) L. R. 50 I. A. 121, 126.) ; and it was therefore a "river belonging to the Government," whatever the exact meaning of that expression may be. That being so, and the taking of the water admitted, the plaintiff was liable to the cess, unless he brought himself within the proviso by showing that he was entitled to irrigation free of cess by virtue of an engagement with the Government. The High Court in the present case, following its decision in Lakshmindrusu Avadhanulu

v. Secretary of State for India (( 1918) 34 Mad. L. J. 223.), decided that question against the Government mainly upon a consideration of the judgment delivered by Lord Parker of Waddington in Kandukuri Balasurya Row v. Secretary of State for India (( 1917) L. R. 44 I. A. 166.), conveniently referred to as the Urlam case. That case however is distinguishable, as it related to water taken from artificial channels existing at the time of the permanent settlement, and the circumstances gave rise to an easement to use the water for irrigation. In the present case it was not shown that the Chilapa was a source of irrigation of the lands at the settlement, nor that a wet mamul allowance was made. The facts do not give rise to the implication held to arise in the Urlam case. Secretary of State for India v. Maharaja of Bobbili (( 1919) L. R. 46 I. A. 302.) was a