JUDGMENTS

Sadasiva Aiyar, J. — The appellants have, no doubt, argued fresh questions which were not expressly raised in the pleadings and which were probably thought of only after the decision in Kandukuri Balasurya Prasadha Row v. Secretary of State for India, but having regard to the very difficult and novel questions, raised in these water cess cases owing to the obscurity of the Water Cess Act, I thirik it better to consider and decide these questions also. On the findings of fact by the Lower Appellate Court, the only arguable questions in this case are (1) whether the plaintiffs are riparian owners and whether the plaint lands are riparian lands, (2) whether baling out water from the natural stream Musi and leading it into and storing it in wells and thence irrigating the plaint lands falls within the natural rights of a riparian owner in India, and (3) whether the water of the Musi stream, if taken by the riparian owner of inam lands, is water belonging to Government within the meaning; of the Cess Act for which a separate cess can be legally levied by Government.

Assuming for argument's sake the first question to be decided in the appellant's favour, (that is that the appellants are riparian owners and that the lands in dispute are riparian lands), I should be inclined to answer the 2nd and 3rd questions in the appellants' favour. Sect. 7, cl. (b) of the Easements Act and illus. (j) thereto recognise the right of a riparian owner to enjoy without disturbance “the natural advantages arising from the situation of” his riparian land including his right to use and consume the water of the stream for drinking, household purposes and watering his cattle and sheep and “for irrigating” such land, provided it does not thereby cause material injury to other like owners. It has, no doubt, been said that “irrigation necessarily consumes a large part of the water taken from a stream for that purpose, while milling permits practically all the water to remain in the stream” and that therefore “the right of irrigation is less strong” than the right of milling. Having, however, regard to the customs and necessities of a tropical agricultural country like India, Indian Courts should, it seems to me, be liberal in recognising irrigational rights as natural fights of as strong a character as any other, provided, of course, the lower riparian owners are not injured to an unreasonable extent and “the quality and the wide participation of the benefits” of the natural stream are not interfered with to an unreasonable extent. (See Vol. II, Farnham paragraphs 465 and 466). (No such question of unreasonableness in the user has been raised in this case).

As I said in Janakiramayya's case, “It is not wise to confuse ourselves by juggling with the word ‘property’ or the word “owner” when used with reference to flowing waters, Having carefully considered the decision of their Lordships of the Privy Council in I.L.R, 40 Mad., 886 (P.C); (s.c, 6 L.W, 340 (P.C), I have seen no reason to depart from the opinions which I gave expression to in Janakiaramayya's case on the extent and limits of the rights of the Government to levy assessment under Act III of 1905. I am further of opinion that the reasoning on which I founded these opinions applies whether the bed of the stream, whose water is used by an inamdar or a Zamindar to irrigate his riparian lands bordering on a natural stream, belongs wholly to Government or partly to Government and partly to the inamdar or Zamindar or wholly to the Inamdar or Zemindar. In any of the three alternatives, the Government has, in my opinion, no right to levy separate water cess for the use of such water. It is significant that the appeal in Ambalavana Pandara Sannadhi case to the Privy Council from the judgment in I.L.R, 34 Mad., 366 was decided in the appellant's favour as governed by the Urlam judgment though in that case, the lands on only one of the banks of the natural stream belonged to the Mittadar. See foot-note at page 536 of [1917] M.W.N

Mr. Ramesam for the Government argued that while irrigation by lifting water from a natural stream and carrying the lifted water at once to the land direct may be recognised as the natural right of a riparian owner in India, the right to store such lifted water in wells temporarily before carrying it on to the irrigated lands should not be recognised as a natural right. I am unable, having regard to the conditions of the country, to recognise such prudent and temporary storage in wells as either an unreasonable or non-natural exercise of the natural right of the riparian owner.

The first question, however, remains, namely, whether the plantiffs are riparian owners and whether the plaint lands are riparian lands. It is only riparian land that is entitled to the natural rights of irrigation from the bordering natural stream. As pointed out by my learned brother in his judgment, the Musi river was In 1903 and 1904 nearly half a mile away from survey No. 35 in which the plaint lands are situated. The plaintiffs tried to show by producing a sketch plan that the plaint lands are almost on the northern bank of the present bed of the stream; but the Lower Appellate Court says that “this sketch has not been proved” and that “it cannot therefore be acted upon.” As regards what is riparian land, the opinions of Judges and text-writers have not been uniform. Farnham says in paragraph 463a:—“The first and the most important” test “is the natural configuration of the country through which the stream flows, so that all land within the watershed which lies in such a manner that the drainage from it, finds its way into the stream might be regarded as riparaian land. But a rule which would recognise such a vast extent of territory as riparian land would be almost as destructive of the right of the riparian owner as a rule which would permit anyone who could gain access to the water to make use of it. Such a rule not only would permit the consumption of the water near its source of supply, but it would result in conflicts between land owners as to rights of way and the construction of the necessary apparatus to make the water available. Another criterion for determining what is riparian land might be the land which is in possession of one person whose holdings actually extend so as to come in contact with the water. This test, in some cases, might be too broad because part of the land might lie out of the natural watershed of the stream, and therefore be outside of the boundaries established by nature for riparian ownership. The criterion which most nearly meets the necessities of the case is the rule that all land must be regarded as riparian” (a) “when it is within the natural watershed of the stream,” (b) “the title to which is in one owner” and (c) “the boundaries of which have been established in accordance with the requirements of the conditions which will best serve the interests of individual land owners. Under ordinary circumstances, the individual acquires title to such an amount of land only as he can reasonably care for and cultivate by his own efforts with such paid assistants as his business ability makes it profitable, for him to employ.” I think that in India riparian land must be confined to land which is on the bank of the stream and which extends from that bank to a reasonable depth inland. I do not wish to express a final opinion in this case as to what would be the lineal measurement of such a reasonable depth, but I am clear that a depth of more than half a furlong would, usually, be unreasonable. In this case, there is no evidence that the plaint lands are situated on the banks of the stream or connected in one block with lands situated on the bank and owned by the same owner or situated within even a furlong's depth from the northern bank of the stream. Dr. Pandalai argued that the case should be sent back for giving an opportunity to the plaintiffs to prove that the lands are riparian lands satisfying the tests above indicated by me. But this suit is now more than nine years old and this Court allowed to the plaintiffs ample opportunity by its order of July 1913 to raise all their contentions and adduce all their proofs. I do not think that the plaintiffs are now entitled to any further indulgence so far as the establishment of the facts necessary to support their claim as riparian owner is concerned, though I have allowed them even at the last stage to raise these fresh contentions and put forward new arguments in support of the said contentions provided they could sustain arguments on them on the materials already on the record.

On the ground, then, that the plaintiffs have failed to establish that the plaint lands are riparian lands and consequently have failed to establish that they are entitled to use the water of the Musi stream for the irrigation of the plaint lands without liability to pay assessment to the Government, I agree that this Second Appeal should be dismissed with costs.

Phillips, J.—This case has already been before this Court on three occasions and finally on 17th February 1914 the case was remanded for fresh trial on six issues framed in this Court, the original second issue and any other issues that might be framed.

The sole question now at issue is whether Government (1st defendant) has any right to levy water tax on the plaint garden lands, 8-58 acres in extent on account of water taken from the Musi river.

The plaintiffs have not been able to locate the plaint lands definitely but say that they form portion of the 69 acres 28 cents confirmed to plaintiffs at the time of the Inam Settlement. The District Judge has, however, found that the plaint lands are not portion of the 69 acres of garden land, and has further observed that that finding is not important as, even if they formed part of the 69 acres, the further findings as to the source of irrigation refer to the 69 acres as well as to plaint lands. These findings are that the plaint lands form part of Resurvey No. 30, that the only facilities for irrigating the lands at the date of settlement were a tank and wells unconnected with the Musi river, that these sources were taken into account for purposes for enfranchisement, and that there was no agreement between plaintiffs and the Inam Commissioner for freedom from water tax. Inasmuch as these lands were not irrigated by the Musi river at the time of the Inam settlement, and no provision was then made for their being so watered, it is obvious that plaintiffs cannot claim the use of that river water by virtue of an implied agreement, and consequently their suit has been dismissed. This Second Appeal was filed on 12th July 1915 and it was not until 5th May 1917 that an additional ground of appeal was filed, upon which the case has mainly been’ argued. The case now put forward is that the plaint lands being situated on the banks of the Musi river, plaintiffs as riparian owners are entitled to use the river water for irrigation as of right, apart from any agreement with Government. This is an entirely new case apparently put forward on the strength of the recent judgment of the Privy Council in the Urlam case but in that case the question of whether an engagement with Government could be implied as arising out of the natural or prescriptive right of a riparian owner was left undecided and the decision was based upon the engagement at the time of settlement, for their Lordships remark (at p. 347):— “It is enough in their Lord ships” opinion that at the person relying on the proviso (that is to Act 7 of 1865, Sect. 1) shall show an engagement between the Government and himself or his predecessors in title by virtue of which he is in fact entitled to water for irrigation (1) from the source from which he is actually irrigating his lands, (2) to the amount of water actually used for such irrigation and (3) without being subject to a “separate charge” for such irrigation”. It is thus to my mind quite clear that the present case cannot be decided by the judgment in the Urlam case alone, in which the following passage also occurs: “It is a nice problem whether a riparian owner, who is exercising his natural or prescriptive right of taking water from a natural stream for purposes for irrigation is taking water from a stream belonging to the Government within the meaning of the Cess Act.” And this “nice problem” was left undecided. It, however, appears to me that the plea now put forward by appellants need not or should not be determined at all by this Court. No such plea was raised in the plaint and there is no issue on the question. No doubt an issue was framed as to whether the plaintiffs are entitled to the water as of right, but that this issue did not refer to their right as riparian owners is clear from the latter part of the issue which runs “and have been in enjoyment of the same over the statutory period.” There is a reference in the plaint to some of the garden lands being situated on the bank of the Musi river but it is nowhere specifically stated that the plaint lands are so situated and the statement in paragraph 1 of the 1st defendant's written statement “nor have they any right to the water of the river flowing past their land except to the extent to which their right to irrigation was recognized at the Inam Settlement” cannot be deemed to bean admission that the plaint lands are riparian lands. It does not appear from the Inam Settlement that the lands where on the bank of the Musi river, and it is clear from the survey plans which were prepared in 1903 and 1904 that: the Musi river is nearly half a mile from Survey No. 35 in which the plaint lands are found to be situated. If, therefore, plaintiffs have any right as riparian owners, they must have acquired the right since 1904. It is in evidence that the course of the river has shifted considerably of recent years, but there is no evidence to show in which year the plaint lands became riparian lands if they ever did so. The levy of the water tax complained of was for water taken in Fasli 136 (1906-1907). If therefore plaintiffs are allowed now to raise this plea or riparian right, the case would have to be sent back to be tried upon an entirely new set of facts. As this litigation started in 1908, I think it would be most improper to allow plaintiffs to put for ward this new case which has only been discovered two years after this Second Appeal was filed, and nine years after the suit was instituted. I would, therefore dismiss this Second Appeal with costs.

S. S.Appeal dismissed.