The main legal point established in the judgment is the interpretation of the essential conditions for the levy of water-cess under Madras Act VII of 1865, and the extent of the implied undertaking for free irrigation based on previous case law.

1. This appeal is presented on behalf of the Secretary of State for India in Council against the decree of the Additional Subordinate Judge of Tinnevelly directing a refund of Rs. 83513 7 faslijasti (water rate for a second crop cultivated on wet lands) alleged to have been illegally collected for fasli 1310 on the respondents mitta of Rambaneri Pudukudi, and granting a permanent injunction against the future levy of such faslijasti on the lands situated under the plaint tanks 15 in number.

2. The tanks in question are fed by branch channels leading from the pappankal, an artificial channel, which takes off from a river called the Karuppanadi. The whole suit turns on the right of Government to levy water-cess on irrigation so conducted and this has to be judged solely with reference to the provisions of Madras Act VII of 1865.

3. A reference to the Act will show that the essential conditions for the levy of water-cess are these:

A. The irrigation must be effected by means of the water of "a river, stream, channel, tank or work belonging to or constructed by Government."

B. If the water from such a source is received by indirect flow or used after storage in an intermediate reservoir (as in the present case), the irrigation must, in the opinion of the Collector (subject to the control of the Board of Revenue and Government), be beneficial to and sufficient for the requirements of the crops.

C. The charge must not be contrary to any engagement between the landholder and Government whereby the latter is entitled to irrigation free of charge,

4. We shall deal with these conditions in order.

5. The first has been made the subject of acute contention before us although in the court of the Subordinate Judge it appears to have fallen into the back ground, The Subordinate Judge has concentrated his attention on condition C; and, if we correctly apprehend the meaning of his judgment as a whole, has decided in the plaintiffs favour, not on the ground that the water used was not that of a Government irrigation source (in itself a sufficient reason for giving the decree sued for) but because he found that the plaintiff was entitled to free irrigation by virtue of an implied engagement with Government (condition G). Confining ones attention in the first instance to condition A, we think it must be held to be established in favour of Government.

6. There is fortunately no dispute about the facts as bearing on this part of the case. The Karuppanadi (Black river) above referred to is formed by the junction of two hill streams of which one, the Kuliratti, rises in Government hills, and the other, the Aruvittalai in those of the Vyravan Kalam mitta. These streams bring down water in approximately equal proportions. From the point of their junction, the combined river, called the Karuppanadi runs between Government lands on one side and mitta lands on the other for two miles to the place where the Pappankal takes off by means of an anicut and head sluice. This Pappankal at its head, and for half a mile lower down, has Government lands on one side and mitta lands on the other, after which it flows alternately through mitta and Government lands, but chiefly through the former. Branch channels from the Pappankal feed the 15 plaint tanks under which lie practically all the lands for which the water-rate has been charged, a vary small proportion being irrigated from the branch channel direct.

7. Now, apart from all discussion of the ownership of the Pappankal itself, it cannot be denied that the irrigation is effected by means of the water of the Karuppanadi and following the interpretation of Section 2 of Madras Act III of 1905 adapted by MILLER and Munro, JJ. [Uralam Proprietrix v. The Secretary of State for India I.L.R. (1911) Mad. 295] this river must undoubtedly be treated as a Government irrigation source. Even irrespective of this view we should hold that condition A was satisfied by the fact that the water of the Government hill stream, the Kul