The Government is not entitled to levy any water cess from the plaintiffs for using the water of the Vamsadhara river for irrigation purposes.

Miller, J.

1. The learned, Advocate General argued only two questions at the hearing of the appeal.

(1) Whether the suit is barred by limitation and

(2) Whether the water cess was properly levied by reason that the Vamsadhara river is a river belonging to the Government.

2. As to the 1st question, it is not denied that if the suit is a suit < to establish a periodically recurring right, a suit, that is, to which Article 131 of the 2nd Schedule of the Limitation Act of 1877 is applicable, then it is barred ; but it is contended that the article does not apply and that a cause of action arises on each occasion on which the cess is demanded.

3. This contention is supported by Sriman Madhabushi Achamma v. Gopisetti Narayanaswamy Naidu (1909) I.L.R. 33 M. 171 and the case therein referred to, Gopaladasu v. Perraju (1902) 12 M.L.J. 126; in fact, it seems to me that if those cases are rightly decided the respondents contention must prevail. The Advocate General did not succeed in satisfying me that the case in Sriman Madhabushi Achamma v. Gopisetti Narayanasawmy Naidu (1910) I.L.R. 34 M. 295 can be distinguished. Following that case I must hold that the suit is not barred.

4. On the 2nd point Mr. Justice Munro and I in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India a have held as a matter of law on the facts put before us in that case that the Vamsadhara is a river belonging to the Government: Mr. Nagabhushanam did not on this point lay before us any facts which were not before the Bench in Kandukuri Mahalakshmamma Garu v. The Secretary of State for India (1910) I.L.R. 34 M. 295 but argued as a matter of law that the decision in that case is wrong. It has however been followed by another Bench and has not yet been overruled by a Full Bench or a higher Court; till that is done it is an authority which I ought to follow, and I follow it.

5. Mr. Nagabhushanam presented for our consideration some evidence as to the repair and control of the Mobagam channel by the Urlam Zamindar. That evidence, it seems to me, does not affect the case; it might perhaps be evidence in favour of the Zamindar of a contract with the Government, but does not help the plaintiffs, who do not allege any contract with the Government for the supply of water.

6. I would allow the appeal and dismiss the suit with costs in both courts.

Sankaran Nair, J.

7. This is an appeal by the Secretary of State for India in Council from the judgment and decree of the District Judge of Ganjam, by which it was declared that the Government are not entitled to levy any water cess from the plaintiffs for having cultivated their lands with the waters of the Vamsadhara river and the Mobagam channel. The plaintiffs are the Inamdars of the village of Varahanarasimhapuram paying a quit-rent to the Zamindar. Their case is that the lands in their village were irrigated by the Mobagam channel which conveyed water to their lands from the Vamsadhara river. They alleged that they have been cultivating their lands from time immemorial with this water and that the Government have illegally collected from them since 1894 water-cess under Act VII of 1865 for the water from this channel used for converting dry lands into wet and for raising second wet crops on lands which were already under wet cultivation. They therefore prayed for a declaration of their title alleged and an injunction to enforce such declaration, and also for the recovery of the amount illegally collected from them. The Government pleaded that the Vamsadhara river is a Government source of irrigation and that the Mobagam channel is the property of Government. They also pleaded that a right to the free use of water supplied from a Government source cannot be acquired by immemorial user but can be acquired only by virtue of an engagement with Government and that there was no such engagement with the plaintiffs. The defendant also pleaded that the payments made by the plaintiffs were voluntary and not therefore recove