The court emphasized the historical usage and riparian rights of Zamindars and Inamdars to irrigation free of charge, placing the burden of proof on the Government to show excessive water usage.

Abdur Rahim, J.

1. This appeal is preferred by the Secretary of State for India in Council against the judgment of the Subordinate Judge of Tinneyelly in a case in which the right of the Government to levy water cess on 33 and odd acres of land in the inam village of Vadagarai belonging to the plaintiff-respondent is in dispute. The Government claims the right to levy cess on the allegation (paragraph 2 of the written statement) that the waters of a Government channel called Karimandy Ammankal mingled with the water in the Shamalanadhi river more generally known as Pachayar which supplies the channel and the tanks by means of which the plaintiffs village is irrigated, and that they are entitled to charge water rate on any land cultivated in excess of the quantity which was under cultivation at the time of the enfranchisement and confirmation of the inam in 1864-65. It is then claimed (paragraph 4 of the written statement) that the river Pachayar itself belongs to the Government. On the other side, it is alleged (see plaint paragraph 9) that the whole course of the river from beginning to end lies within the plaintiffs inam limits. That statement is found to be not correct and no argument on the basis of it has been pressed before us. This river has its source in the hills which divide Travancore from the British territory in this locality and it flows up to and a little way below the anicut at the point where the channel which irrigates the plaintiffs lands takes off, along the plaintiffs inam village. On the southern side is the village called Arasapattu, the greater portion of which amounting to 390 acres is inam land belonging to the plaintiff and a very small portion amounting to 55 acres is ryotwari. Below the anicut and on the southern side, there is a ryotwari village called Pattai which is also irrigated by this river.

2. Admittedly, the quantity of plaintiffs land in the inam village of Vadagarai which was cultivated with water of the Pachayar river at the time of the Inam Settlement was about 115 acres and since then 33 more acres and odd have been converted into wet and it is with reference to the right to irrigate these 33 acres with water of the Pachayar that the question has arisen. The claim of the Government is founded mainly on the ownership of the Pachayar river and also on the allegation that the water of a Government hill stream or " odai"called Karimandy Ammankal gets mingled with the water of the Pachayar river above the anicut.

3. It will appear from the map that in its upper reaches the Pachayar bounds the mam village of Vadagarai on the north and the village of Arasapattu on the south. On the east of Arasapattu is the Government village of Pattai through which the river continues its course and we may take it, as contended by the learned Advocate-General- appearing for the Secretary of State, that the Pachayar flows thereafter through a number of ryotwari villages. Though the Pachayar is not an altogether small stream, it is a non-tidal and non-navigable river and like most of such rivers, there is very little water in its bed in the dry season.

4. One important question of fact which was argued before us was whether the banks of the Pachayar above the ancient belong on the southern side, as they admittedly do on the northern side, to the plaintiff. It is not easy to locate the ryotwari land in the Arasapattu village as no definite evidence was adduced on the point but considering its small extent, we are not prepared to assume for the purpose of this case that the 55 acres of ryotwari land all stretch along the bank of Pachayar and are thus riparian property and that the rest of the lands amounting to 390 acres are all non, riparian situated at the back. The only evidence with respect to the possession of the southern bank is in favour of the plaintiffs case. For such evidence as there is on the point shows that acts of possession, such as, by the leasing of Korai grass on the islands and on the b