Oldfield, J.

1. This is an appeal from the decision of two learned Judges, given under Section 98 of the Code of Civil Procedure, in accordance with the confirming judgment of one of them, Sankaran Nair, J. The question is whether water-cess was legitimately levied by Government, the appellant, from plaintiffs for the water of the Vamsadhara river, which they have admittedly used in their inam village for the irrigation of (1) second crop, (2) wet (or irrigated) crops grown on dry (or ordinarily unirrigated) land. The decision of this question will be a sufficient adjudication on the plaintiffs claims to a refund of past collections and an injunction as to the future.

2. Plaintiffs did not dispute that they used the water of the Vamsadhara, as alleged. The dispute is, therefore, only whether it belongs to and can be charged for by Government. Government has relied on Section 2 of Act III of 1905 in support of its ownership of the water and Section 1, Act VII of 1865, in support of its right to charge for it. The material portion of the former is as follows:

(1) All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of