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 an