Sir William Ayling, J. — This Second Appeal arises out of a suit for recovery of water-cess, alleged to have been illegally levied by Government. It appears that the plaintiff took the water on account of which the cess was levied from a channel, which passed through his pattah land, but was not separately demarcated as poramboke. The fact has been treated by both the Lower Courts as conclusive against Government as to the legality of the levy; reliance being placed on a passage in a judgment reported in Kalianna Mudali v. The Secretary of State for India in Council by the Collector of Salem(1), which runs as follows:—

“As to the claim to levy water-cess, these rills run through plaintiff's pattah land, and their beds have not been separately demarcated as poramboke; they are part of the pattah land and not the property of the Government, and therefore the water course cannot be said to belong to Government as decided day before yesterday in A. S. No. 113 of 1910 (on the file of the High Court).”

The learned Government Pleader in Second Appeal argues that this judgment (which is not reported in the regular series) needs re-consideration.

I was a party to it, though it is hardly necessary to say that after the lapse of nearly eight years, my memory of the case is of no assistance. I think, however, that in any attempt to apply it to other cases, strict regard must be had to the fact that we were there dealing with “rills” feeding a pond, and not artificial irrigation channels. “Rill” is defined in the Oxford Dictionary as a small stream, brook, runnel or rivulet implying a natural, and not artificial origin, and a reference to the judgment in A. S. No. 113 of 1910, which is quoted, shows that the latter dealt with the ownership of the beds of rivers, and the water flowing over them. In so far as natural streams are concerned, I do not at present see any reason to doubt the correctness of our decision. Artificial irrigation channels stand on a totally different footing. When these are small, they are frequently not separately demarcated as poramboke; but their character as poramboke, is not affected by the omission to do so. The learned Government Pleader refers us to the following passage in the Settlement Register of the suit village (Ex. IV):

“It must be distinctly borne in mind that at the Original Settlement, a deduction of 25 per cent, has been made, from the gross produce, on account of unfavourable seasons and on account of any roads, channels, banks, paths, etc., that may have been measured in with the cultivated area. The fact of the inclusion, therefore, of any Government poramboke in any re-survey field does not confer on the cultivator of that field the right of entering on such poramboke or of in any way interfering with it and any unauthorized encroachment on such poramboke will be severely dealt with.”

It will be apparent from this that the fact that the channel forms part of a survey number held in patta without separate demarcation does not, by itself show that the said channel is not a poramboke channel.

The ruling in Kalianna Mudali v. The Secretary of State or India in Council by the Collector of Salem does not, therefore, conclude the case; and I would call upon the Subordinate Judge to submit findings on the issues, on the evidence on record, in the light of the above remarks. Findings should be submitted by July 16th; seven days will be allowed for objections.

Odgers, J.—I agree.

[This appeal came on for final hearing on the 7th day of January, 1924 and this day after the return of the findings submitted by the Subordinate Judge before Odgers and Wallace, JJ.

The Government Pleader (Mr. C. V. Ananthakrishna Aiyar) for the Appellant.

Mr. T. R. Vijayaraghavachariar for the Respondent.

JUDGMENT

Odgers, J. — This suit was brought by the plaintiff against the Secretary of State in Council, to recover the amount of water-cess, charged on the plaintiff, because the plaintiff took Government water to irrigate his dry lands. The District Munsif found that the water-courses could not be said to belong to Government and this was upheld by the Subordinate Judge, both the Lower Courts relying on the decision in Kalianna Mudali v. The Secretary of State for India in Council by the Collector of Salem, to which further reference will be made. The appeal was heard originally before Ayling, J. and myself and the case was remitted to the Lower Appellate Court for fresh findings on all the issues. It was then submitted by the learned Government Pleader that the decision in Kalianna Mudali v. The Secretary of State for India in Council by the Collector of Salem, required re-consideration and we pointed out in our judgment that the case relied on was concerned with rills feeding a pond. We pointed out, however, that small natural streams are frequently not separately demarcated as poramboke, but their character as poramboke is not affected by the omission to do so; and we also pointed out that it was apparent from the passage in the settlement register of the suit village, Ex. IV, that the fact that the channel forms part of a survey number held in patta, without separate demarcation, does not by itself show that the said channel is not a poramboke channel. We held that the ruling in Kalianna Mudali v. The Secretary of State for India in Council by the Collector of Salem did not conclude the case, and, as stated, called upon the Lower Appellate Court to return further findings on all the issues. This the Lower Appellate Court has now done, and the finding still is that the plaintiff did not take water to his survey numbers from any Government source. The learned Subordinate Judge, relying on the fact that it was not an artificial irrigation channel and that therefore in his opinion, the decision in Kalianna Mudali v. The Secretary of State for India in Council by the Collector of Salem supported the plaintiff, was apparently of opinion that if the lands on either side of the channel were the patta lands of the plaintiff, it must be held that the channel and its water were included in the patta. This in fact is a point relied on for the plaintiff before us. It was urged as a preliminary point that this question is purely one of fact and cannot be raised in second appeal. But in my opinion, the grounds of the reasoning of the learned Subordinate Judge must be examined to see if they are supportable in law; and if they are not, it follows that his inference of fact from them can also not be supported. The plaintiff began by denying that there was any odai (stream) running through his land at all. This has been found to be absolutely false and I have no hesitation in concurring. As a matter of fact, the stream or channel runs through survey numbers 13 and 17, the plaintiff's patta lands, to the south and falls into a tank in the Railway poramboke, which there is reason to think is Government irrigation source. The passage in the settlement register has been already referred to and it occurs also in the preamble to the patta. It is perfectly clear that a patta is merely a bill for rent and is in no sense a grant or conveyance of the land referred to therein: See The Secretary of State for India in Council v. Kasturi Reddi and Muthu Veera Vandayan v. The Secretary of State for India in Council(2). It is also clear that the land and admittedly the water channel were poramboke before the grant of patta. The provisions of Madras Act III of 1905, Sect. 2, which have been discussed in a variety of cases in this Court, lay down that:

“all rivers, streams, etc., and water-courses…………are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force subject to the natural and easement rights of other landowners and to all customary rights legally subsisting with regard thereto.”

If the pattadar has not prescribed against Government for the use of the water in this channel or for the ownership of the bed thereon, it is clear that he has no grant of such rights contained in his patta. Such streams as the one under consideration have, in my opinion, been expressly excepted from the grant. It has been said by the Privy Council in Prasad Row v. The Secretary of State for India(3) that with regard to the true meaning and construction of the Act, various difficulties arise and those difficulties are evident from the conflict of opinion that has arisen in this High Court with regard to it. For instance, in the judgment of Abdur Rahim, J. in Chinnappan Chetty v. The Secretary of State for India in Council(4) he points out

“that the rights of the Government in water are in connection with its position as a landowner may be deduced from the use of the words ‘other landowners’ in the saving clause”

so it appears to me that, if the ownership of the banks of the stream is still vested in Government, it cannot be said that the pattadar has any rights of ownership in the water thereon. This is pointed out by Sadasiva Aiyar, J., in The Secretary of State for India v. Janakiramayya(5), wherein he says:

“Ryotwari lands stand on an entirely different footing from Zamindari and Inam lands, as Government has not lost proprietary rights over ryotwari lands. That ryotwari land continues to be Government land…Thus the Government treats itself as owner of its ryotwari tenants' lands, while it treats the Zamindar and Inamdar as owner of the lands in permanently settled estates.”

In Kandukuri Mahalakshmamma Garu v. The Secretary of State for India Miller and Munro, JJ., held that under Sect. 2 of Act III of 1905, where the channel or river, which is the flowing body of water, is not shown to belong to a private person, it belongs to Government, although private persons may be proprietors of the bed. The riparian proprietors have easement rights, but they are not on that account owners of the channel, and they cannot use water, which belongs to Government, free of cess, in the absence of an engagement with Government to that effect. It laid down that Sect. 2 declared that subject to the natural rights of other landowners, all standing and flowing waters, which are not the property of anybody else are the property of Government. This case came on appeal to the Privy Council in Prasad Row v. The Secretary of State for India, where their Lordships recognize the difference in the law of this Presidency as to rivers and streams from the English law and say that,

“it is quite possible that it recognizes some proprietary rights on the part of Government in the water flowing in rivers and streams.”

Again, in The Secretary of State for India v. Ambalavana Pandara Sannadhi Abdur Rahim, J., held that,

“in order to justify the imposition of cess under this Act, it must be made out that the irrigation is caused by water supplied or obtained from a stream or river belonging to the Government,”

and he did not understand the provisions of Act III of 1905 as laying down that,

“even in those streams and rivers, in which the riparian rights of Zamindars or other owners of adjacent lands exist, a separate and independent proprietary right in the water subsists in the Government entitling it to demand from the owners of the lands on the banks any price it chooses for the use of the water.”

This was concurred in by Srinivasa Aiyangar, J., but on the ground that the plaintiff had been drawing off the same quantity of water from time immemorial, but he refused to consider the effect of Act III of 1905. I am, therefore, of opinion that the patta of the plaintiffs does not include this undemarcated poramboke stream.

The second contention is that, if Government intended it not to be included in the patta, they ought to have excepted the channel from the patta. Reference has been made to the Survey Manual and to the Board's Standing Orders; but it seems to me that this cannot in any way have the force of law being merely directions of the authorities to their officers, either survey or revenue, as to the way in which their duties should be carried out.

The third question raised is that no presumption in favour of Government arises from the provisions of Act III of 1905. This I have already dealt with in considering the first question. But I may add this, in The Secretary of State for India v. Janakiramayya it was held by a majority of the Full Bench as against the observations in The Secretary of State for India v. Ambalavana Pandara Sannadhi that a special presumption is raised in favour of Government by Madras Act III of 1905. (See per Oldfield, J., at page 398 and per Bakewell, J., at page 403).

The fourth contention of the plaintiff is that he has riparian rights. This is a question of at least mixed law and fact, which, he has not raised in either of the Lower Courts and which, in my opinion, he is debarred from raising in Second Appeal. That is sufficient to dispose of this point. But I may add that whatever riparian rights, if any, the plaintiff might have in the water of this stream, it is more than doubtful if he was at liberty to erect two dams or diversions by which a considerable portion at least of the waters of the stream was diverted in order to irrigate his own dry patta lands. That would raise a question as to whether the rights of lower riparian owners, if any, have been infringed and whether the flow through this odai to the tank or Manalpallam has been interfered with. This is, of course, a question of evidence, which cannot be allowed to be raised here. Reference may be made to S. A. No. 1639 of 1918, to which I was a party in which it was said that the District Munsif thought that ryotwari landholders were entitled to all the rights of riparian owners under the English Law. They may be said to own some such rights, such as the right of access to the river for using the water, for bathing and for domestic purposes and so on; but so far as irrigation rights are concerned, it has been pointed out in Lakshmiah v. Narayanappa, that the only direct rights, which the ryotwari landholders have, are either derived (through express or implied contract) from the Government or are acquired against Government by prescription.

To refer to the case in Kalianna Mudali v. The Secretary of State for India in Council by the Collector of Salem, the judgment is extremely short. The land in question seems to have been patta land. The first part of the judgment deals with the plaintiff having acquired an easement as against Government to interrupt the flow. The second part of it deals with the claim to levy water-cess and sets out that the,

“rills run through the plaintiff's patta lands and their beds have not been separately demarcated as poramboke. They are part of the patta land and not the property of Government, and therefore the water-course cannot be said to belong to Government as decided day before yesterday in A. S. No. 118 of 1910.”

I have perused the judgment in this appeal, which was a case of Zamindari lands, where under Sect. 2 of Act III of 1905, the Zamindar is clearly “another landowner” within the meaning of the section. It is further difficult to discover from the very short statement in Kalianna Mudali v. The Secretary of State for India in Council by the Collector of Salem what were the exact facts of the case. It may be that the rills began and ended on the plaintiff's own patta land without flowing into or through any other land which is not the case in the appeal before us. I cannot see that this case is any real authority for the position advanced by the appellant. The learned Judges relied on a case they had already decided as to Zamindari lands, which, as pointed out, stood on a wholly different footing. For these reasons, I am of opinion that the appeal must be allowed with costs throughout.

Wallace, J.—Plaintiff sued to recover with costs a sum paid by him as penal water-rate levied by the Tahsildar of Uttankarai Taluk, Salem District, for unauthorisedly taking Government water to his registered dry lands. It appears from the evidence in the case that plaintiff is the pattadar of Survey Nos. 13, 14 and 17 registered dry land through which a jungle stream flows, which originally according to the survey plan of 1897 ended in Survey No. 17 but so far as appears from the evidence has since the grant on darkhast of Survey Nos. 13, 14 and 17 been discharging its waters into the Government irrigation source called Manalpallam, that plaintiff by mud dams at points A and B in the stream diverted a portion of the water of that stream to his dry fields and raised wet crop, and that for his interference with the water of the stream penal water-rate was imposed on him.

Both the Lower Courts have decided that the jungle stream within the limits of Survey Nos. 13, 14 and 17 is the property of plaintiff and that the imposition of any water-rate for the diversion and use by him of its waters, at any point within these survey numbers is illegal, Both Courts have based their decision on the ground that the patta for these fields granted apparently to plaintiff's vendor carried with it a grant of stream bed and the water on it where it flowed through these survey numbers. In so holding, it is perfectly clear that in the present state of the law, both Courts made a fundamental mistake in law as to the legal effect of a patta, and this mistake, we are, in Second Appeal, bound to consider and rectify.

I should have thought that it was well-known law that a patta is not a document of title, or a deed of grant: [see The Secretary of State for India in Council v. Kasturi Reddi, and Muthu Veera Vandayan v. The Secretary of State for India in Council]. It is a record of demand by Government that such and such an amount is due as land revenue on such and such an area. Plaintiff admitted before us, when pressed, that the stream in question within Survey Nos. 13, 14 and 17 was Government property prior to the grant of patta to his vendor. It follows that neither his vendor nor himself has succeeded to the ownership of that portion of the stream unless the grant of patta or the grant of these survey mumbers on darkhast somehow carried with it also the transfer of ownership of that portion of the stream. As noted, the patta implies no such grant, and plaintiff has not chosen to produce or call for the darkhast records. I wholly fail then to find any proof that the ownership of Government admitted prior to the darkhast has been lost by Government.

The mere entry of a particular area in a patta cannot be any evidence that the whole extent of the area, without any reservations, was granted on darkhast to a darkhastdar in the face of the customary proviso in all village A registers via., that at the original settlement a deduction of 25 per cent, has been made from the gross produce on account of unfavourable seasons, and on account of any roads, channels tanks, paths, etc., that may have been measured in with the cultivated area. The fact of the inclusion, therefore, of any Government poramboke in any re-survey field does not confer on the cultivator of that field the right of entering on such poramboke or of in any way interfering with it (Ex. IV). The mere grant of a patta for a field does not then automatically carry with it the grant of any Government poramboke already existing within that field.

Plaintiff's claim, which amounts to saying that there cannot be any Government channels in existence within lands granted on patta, unless these channels have been separately demarcated, is directly opposed to this general provision of the settlement. It is for plaintiff to prove that this usual reservation did not form part of the contract between his vendor and Government at the time of the grant of patta. He has not even produced his patta or examined his vendor to prove this, or to prove that his vendor was ever in possession of, or owner of a portion of the stream. It seems to me almost absurd to contend that in granting a darkhast for dry lands—lands ex hypothesi not entitled to Government water—Government deliberately intended to confer on the darkastdar not merely the user of water flowing through a channel in that land to a Government source of irrigation, but also the ownership of part of that channel, so that every grant of patta would confer ownership of every channel within the land granted, and the right to dam up and stop the flow of water altogether. It is certain that Government in granting pattas never had any such intention or contemplated that such a transfer of ownership as would involve the wholesale breach of its covenant with the lower wet landholders was included in the contract. The practical inconveniences of upholding such a contention are obvious, as plaintiff himself would be the first to discover, if a pattadar further up the stream, say pattadar of field No. 1—claimed the rights which plaintiff now claims, and diverted all the water to his field so that none at all came as far as plaintiff's lands. Plaintiff's claim based on the patta appears to me, therefore, wholly untenable and the Lower Court's acceptance of it is based on a material misconception of the law. The case cited by plaintiff, Kalianna Mudali v. The Secretary of State for India in Council by the Collector of Salem, besides being a case not published in the authorised reports, does not seem to me of any assistance to plaintiff, since from the facts of that case, it appears that the “rills” feeding the pond were wholly in the plaintiff's lands and had presumably never belonged, at any time, to Government.

Plaintiff has attempted before us to support the decree appealed against, on two grounds not taken before, (a) that under the B. S. O., Government does not charge water-rate for water taken from jungle streams provided no irrigation lower down, is intefered with, (b) that plaintiff as owner of both banks of the stream in Survey Nos. 13, 14 and 17 possesses the natural rights of a riparian owner to usufruct of the water as it flows between his banks. As to (a) the foundation for such a case has not been laid, and Government was never called upon to meet such a case, while it appears in evidence (defendant's 4th witness) that the jungle stream does feed an irrigation source so that the B. S. O. quoted has no application. As to (b) again such a claim was never agitated in the Lower Courts. Had it been, it would have been open to Government to contend—

(1) that a mere darkhast ryotwari pattadar of dry lands has no riparian rights to water for irrigation purposes (see S. A. No. 1639 of 1918);

(2) that even if he has, such rights do not permit the diversion by mud dams of water, which would otherwise flow into a Government irrigated source. I am of opinion that such mixed questions of fact and law cannot be agitated for the first time here in Second Appeal.

It is clear then that as between plaintiff and Government the ownership of this channel and the water in it within fields Nos. 13, 14 and 17 belongs to Government and that the charge of water-rate ordinary or penal for water taken therefrom to dry lands is in accordance with law (Acts VII of 1865 and III of 1905). This Second Appeal must, therefore, be allowed and plaintiff's suit dismissed with costs here and below.

K.V.SAppeal allowed.