The main legal point established in the judgment is the liability of the tank owner for land cess under the Madras Local Boards Act, 1920, based on the assessment of rental value for the fishery and the ownership of the bed of the tank.

Alfred Henry Lionel Leach, C.J.

1. The question involved in this appeal is whether the appellant as the owner of a tank in which there are fish is liable to land cess under the Madras Local Boards Act, 1920. The appellant let the right to catch the fish in the tank, whereupon the Collector of Kistna called upon him to pay land cess based upon the annual value of the fishery. Having been compelled to pay the sum demanded the appellant filed a suit to recover the amount with interest. There were other demands which the appellant had met under protest and the appellant asked for the repayment of all the sums recovered from him. The District Munsif of Bezwada who tried the suit held that it did not lie, and accordingly dismissed it. On appeal to the Subordinate Judge it was held that the appellant was not liable to pay land cess in respect of the fishery, but that he was liable for the other demands made by the Collector. In S. A. No. 161 of 1935 the Government appealed against that part of the judgment of the Subordinate Judge in which it was held that the appellant was not liable to be assessed to land cess in respect of the fishery and the appellant appealed in S. A. No. 177 of 1935 against the rest of the judgment of the Subordinate Judge. Both the appeals were heard by Wadsworth, J., who allowed the appeal filed by the Government, but dismissed that filed by the appellant. He granted a certificate in the former appeal, but refused a certificate in respect of S. A. No. 177 of 1935 and therefore the present appeal is only concerned with the appellants case so far as it concerns the fishery.

2. Section 74-B of the Madras Local Boards Act, 1920, states that a land cess being a tax on the annual rent value of lands, shall be levied in accordance with the provisions of the Act. Section 78 says that the land cess shall be levied on the annual rent value of all occupied lands on whatever tenure held, and Section 79 (iii) makes the landholder or the sub-landholder of a zamindari land liable to pay the land cess. The tank with which this appeal is concerned admittedly lies in the zamindari land of the appellant. It is quite clear from Section 78 that the land cess can only be levied in respect of lands which have a rental value. It has been said that the right to catch fish is an incorporeal hereditament, and that the Madras Local Boards Act does not permit of land cess being levied in respect of such a right, but it is admitted, that if the appellant is the occupier of the bed of this tank and the bed has a rental value the order of the Collector is correct.

3. The reasons given by the learned Judge for holding that the appellant is liable to land cess are these. The leasing of a fishery in England normally implies the grant of a right to catch fish with rod and line or with net in a river or a permanent sheet of water, but the leasing of a fishery in a South Indian tank involves nothing of the kind. He says that ordinarily the land is dry for a portion of the year and the fish, though they are denizens of the water in the cold weather are denizens of the land and the mud in the hot weather for they go down into the mud when the tank goes dry. The fish *are caught when the water has almost gone and the fisherman drives the fish into a shallow muddy depression and catches them with his hands. Therefore, the tank is essentially land, though to some extent covered with water for a considerable part of the year.

4. I am unable to agree with the learned Judge that this description of a South Indian tank can be taken to have universal application so far as the Province of Madras is concerned. Some tanks may become dry owing to their shallowness, but many tanks in South India in which there are fish do not go dry and in such cases this method of catching fish cannot of necessity be resorted to. Moreover, there is no evidence on the record that this particular tank becomes dry in hot weather, and the court cannot decide the appeal on the,