JUDGMENT

1. This appeal is presented on behalf of the Secretary of State for India in Council against the decree of the Additional Subordinate Judge of Tinnevelly directing a refund of Rs. 83513 7 faslijasti (water rate for a second crop cultivated on wet lands) alleged to have been illegally collected for fasli 1310 on the respondent's mitta of Rambaneri Pudukudi, and granting a permanent injunction against the future levy of such faslijasti on the lands situated under the plaint tanks 15 in number.

2. The tanks in question are fed by branch channels leading from the pappankal, an artificial channel, which takes off from a river called the Karuppanadi. The whole suit turns on the right of Government to levy water-cess on irrigation so conducted and this has to be judged solely with reference to the provisions of Madras Act VII of 1865.

3. A reference to the Act will show that the essential conditions for the levy of water-cess are these:

A. The irrigation must be effected by means of the water of a river, stream, channel, tank or work belonging to or constructed by Government.

B. If the water from such a source is received by indirect flow or used after storage in an intermediate reservoir (as in the present case), the irrigation must, in the opinion of the Collector (subject to the control of the Board of Revenue and Government), be beneficial to and sufficient for the requirements of the crops.

C. The charge must not be contrary to any engagement between the landholder and Government whereby the latter is entitled to irrigation free of charge,

4. We shall deal with these conditions in order.

5. The first has been made the subject of acute contention before us although in the court of the Subordinate Judge it appears to have fallen into the back ground, The Subordinate Judge has concentrated his attention on condition C; and, if we correctly apprehend the meaning of his judgment as a whole, has decided in the plaintiff's favour, not on the ground that the water used was not that of a Government irrigation source (in itself a sufficient reason for giving the decree sued for) but because he found that the plaintiff was entitled to free irrigation by virtue of an implied engagement with Government (condition G). Confining one's attention in the first instance to condition A, we think it must be held to be established in favour of Government.

6. There is fortunately no dispute about the facts as bearing on this part of the case. The Karuppanadi (Black river) above referred to is formed by the junction of two hill streams of which one, the Kuliratti, rises in Government hills, and the other, the Aruvittalai in those of the Vyravan Kalam mitta. These streams bring down water in approximately equal proportions. From the point of their junction, the combined river, called the Karuppanadi runs between Government lands on one side and mitta lands on the other for two miles to the place where the Pappankal takes off by means of an anicut and head sluice. This Pappankal at its head, and for half a mile lower down, has Government lands on one side and mitta lands on the other, after which it flows alternately through mitta and Government lands, but chiefly through the former. Branch channels from the Pappankal feed the 15 plaint tanks under which lie practically all the lands for which the water-rate has been charged, a vary small proportion being irrigated from the branch channel direct.

7. Now, apart from all discussion of the ownership of the Pappankal itself, it cannot be denied that the irrigation is effected by means of the water of the Karuppanadi and following the interpretation of Section 2 of Madras Act III of 1905 adapted by MILLER and Munro, JJ. [Uralam Proprietrix v. The Secretary of State for India I.L.R. (1911) Mad. 295] this river must undoubtedly be treated as a Government irrigation source. Even irrespective of this view we should hold that condition A was satisfied by the fact that the water of the Government hill stream, the Kuliratti, was certainly used for the plaint irrigation. That this Kuliratti is a Govern-rnent stream is beyond dispute and the mere fact that its waters before use were mingled with those of another stream (the Aruvi-thalai) or that they passed through a river bed or channel of joint, or doubtful, or even alien, ownership is immaterial. This point is established in the most emphatic way by another recent decision. [The Secretary of State for India v. Swatni Naratheeswarar I.L.R. (1911) Mad. 21.] The reasoning of the learned Judges therein (Benson and Krishnaswami aiyar, JJ.) is entirely applicable to the present case and conclusive of the point.

8. Passing to the second condition B, we may quote from the judgment in the case last cited:

The question as to the beneficial character of the water taken from the Government source and of its sufficiency are not for the Civil Court, but for the Collector subject to the control of the Board of Revenue and of the Government. The Collector in this case having imposed the assessment and he not having been overruled by the higher revenue authorities we think the plaintiff is clearly liable to pay the assessment.

9. The right of Government to charge water-rate being thus far established, it only remains to consider whether Government is precluded from so doing by any engagement with the plaintiff or his predecessor in title (condition C).

10. The plaintiff's mitta forms part of the old Chokkanipatti zamindari, which was permanently settled in 1802, brought to sale for arrears and purchased by Government in 1836 and again granted in 1859 by a fresh sannad (exhibit 0). It is common ground that the terms of this fresh grant imply an undertaking on the part of Government to allow the use of Government water free of charge for the lands of the zamindari to some extent, greater or less: and that apart from this implied undertaking there is no other engagement with Government which the plaintiff' can plead, The difficulty is to fix the extent of the above-mentioned implied undertaking.

11. According to the defendant it must be strictly limited (as regards double crop cultivation with which we are now concerned) to the extent actually under double crop cultivation at the time of the regrant in 1859

12. The plaintiff's contention, on the other hand, taken at its widest and as set forth in the plaint, is that the grant allows (by implication) the free use of the water passing down the Pappankal to any extant and in any way- the grantee may choose. The Subordinate Judge's findings, as set forth in paragraph 18 of his judgment, amount to a considerable limitation of this claim and in fact recognise the plaintiff's right only to the accustomed flow of water through his (the plaintiff's) sluices as it existed in 1859. The decree however goes much further than this, and gives an absolute injunction against the levy of fasli-jasti on the plaintiff's lands under the plaint tanks, quite irrespective of whether the accustomed flow was exceeded or not. We may say at once that this undoubtedly goes too far, No engagement to allow free of charge such unlimited irrigation can possibly be deduced from the grant and Mr. Sundara Aiyar, vakil for the respondent, in fact stated in the course of the hearing of this appeal that he would be content with the establishment of his right to so much water as his client's predecessor in title was accustomed to take from the Pappankal through the branch channels in 1859. That this is as far as the undertaking can be legitimately presumed will be apparent when the reason for inferring its existence is considered. It is based simply on the assumption that in fixing the peshcush with reference to the income derivable from the zamindari, Government must be presumed to have taken into account all irrigation facilities then enjoyed by the zamindari ryota.

13. Practically therefore the controversy narrows itself down to the question of whether the implied right to free irrigation deducible from the grant should be measured by the area irrigated or by the quantity of water used--or rather, whether the area irrigated should be viewed as a final and conclusive measure of the quantity of water used,

14. In the great majority of cases no other test of any practical value than that of the area irrigated can be suggested. It has been constantly adopted and acted upon as conclusive of the extent of a mittadar's, zatnindar's or inamdar's rights to free irrigation, as numerous decisions show. We need only refer to Chidambara Rao v. The Secretary of State for India in Council I.L.R. (1903) Mad. 66, Lutchmee Doss v. The Secretary of State for India in Council I.L.R. (1909) Mad. 456 and the Urlam case above mentioned. The respondent's vakil seeks to distinguish these cases on the ground that the first two relate to inam villages and the last to a zamindari formed from Haveli lands, while the suit mitta was carved out of an ancient zamindari. But it is difficult to see why the same principle should not be followed, the implies undertaking being based on precisely the same principle in the case of zamindaris and inanas. The chief cases adduced on the plaintiff's side are The Secretary of State for India in Council v. Perumal Pillai I.L.R. (1901) Mad. 279 and Maria Susai Mudaliar v. The Secretary of State for India in Council (1904) 14 M.L.J. 350, The former is easily distinguished on the ground that it was passed before the amendment of the Irrigation Cess Act by Madras: Act V of 1900. Maria Susai Mudaliar v. The Secretary of Slate for India in Council (1904) 14 M.L.J. 350 has been referred to by both sides in support of their contentions and is worthy of special attention, as arising out of a precisely similar dispute in another mitta formed from the Chokkampatti zamindari. If; retates partly to lands under this same Pappankal and partly to lands under another channel from the Karuppanadi known as the Perunkal and it is notable that the charge of water rate is allowed in the case of the former, and disallowed in the case of the latter. The two cases are dealt with separately in the judgment, and, as might be expected, each side in the present appeal relies on the reasoning found in the portion favourable to its contention.

15. We have very carefully considered the judgment and it appears to us that the vital fact differentiating the case of the two channels was that, in the case of the Perunkal, there appears to have been in force, both at the time of the grant and thence-forward to the date of suit, a deinite arrangement whereby the zatnindari and Government ryots took the channel water in turns of five days each; in the case of the Papptinkal, no such arrangement has ever been set up. Accepting this Moral (to use the convenient vernacular phrase) as proved, the learned Judges naturally held that the rights of the zamin ryots must be measured thereby without reference to the extent of land which they might cultivate in the exercise thereof. In the case of the Pappankal, where there was no such Morai, they appear to have applied the usual test. They say the evidence for the plaintiff does not prove what is the customary supply to which the plaintiff is entitled in respect of tanks Nos. 22 and 23, and it does not prove what was the exact extent of second crop cultivation in 1859. None of the cases quoted in the above judgment is of any use to respondent. Morgan v. Kirby I.L.R. (1878) Mad. 46 and Krishna Ayyan v. Venkatachella Mudali (1872) 7 M.H.C.R. 60 were both suits between private parties and, although Government was a party in Kristna Ayyan v. Venkataohella Mudali (1872) 7 M.H.C.R. 60, the suit was brought to establish a right to an uninterrupted supply of water based on prescription. None of these oases nor the later case quoted [Bamaehandra v. Narayanasami I.L.R. (1893) Mad. 883] deal with the extent to which an implied engagement of the nature now in question extends, or to its effect in barring the right to levy water-rate.

16. We should be inclined to hold as follows: A landholder is not precluded from showing that the excess of wet cultivation (first or second crop as the case may be) irrigated with the aid of Government water over that existing at the time of the grant, is due to thrifty use of water or careful maintenance of his channels and tanks to prevent wastage, and not to the use of an increased quantity of water in which case water-cess on the increased area would not be leviable. .But in all such cases rigid proof should be required, the natural presumption being that, the quantity of water used varies in proportion of the extent under irrigation.

17. Turning to the facts of the present case we find that water cess has been collected on 22502 acres, the entire area cultivated with double crop in fasli 1310, No deduction has been made on account of double crop area as existing in 1859; but in the written statement the defendant admits that double crop cultivation to the extent of 15 kotas (about 20 acres) existed (all under plaint tank No. 3) in 1859 and states that he is prepared to refund a proportionate amount. In the course of the trial it became evident that the above figures did not represent the entire cultivation even under tank No 3, which the Government pleader now admits must be taken to amount to at least 24 kotas (say 35 acres). What it was under the other 14 tanks he is not prepared to say.

18. A mass of oral evidence has been adduced on both sides, all of a more or less unsatisfactory character, as to whether the second crop cultivation is, or is not, larger now then before the regrant in 1859. If the plaintiff's witnesses are to be believed, it then amounted to 635 kotas, or more than two-third of the wet ayacut.

19. This evidence is of a very interested character and is unsupported by anything in the nature of accounts. The aggregate figure is enormous whether compared with the present day cultivation or with the cultivation in 1836 which the Subordinate Judge finds to have been about 15 per cent of the ayacut: and we have no doubt is an exaggeration. On the other hand, it is perfectly clear from the documentary evidence produced by the plaintiff (exhibits R.R. 8. 8., and W.) that between 1836 and 1859, and even at the paimash, second crop cultivation was carried on in the kar season under the other tanks besides No. 3 which Government has not allowed for. The documentary evidence is most incomplete, no cultivation accounts being produced for the period in question or the immediately succeeding years: but the most noticeable feature is the failure of Government even to specify the true extent of second crop cultivation at the time of grant for which irrigation should be allowed free, The figure given in the written statement is now admitted to be incorrect.

20. It is suggested by the Government pleader that the improve: ments effected to the head works of the Pappankal about 1877 must have resulted in an increase of second crop cultivation' There seems no reason whatever to suppose that this was so. The works in question included the lowering of the anicut and the construction of a head sluice. They appear to have been undertaken mainly with a view of preventing the numerous breaches in the channel which had usually occurred in the pishanam season. Their primary effect must have been a reduction of the quantity of water passing down the channel though no doubt the supply was better regulated and the wastage by breaches avoided. This, however, probably in no way tended to increase, but rather to decrease, the kar cultivation which takes place between May and October--a season when freshes are comparatively few and scanty and when no breaches were said to occur.

21. A more plausible cause of recent increase of second crop cultivation may be the fixing of long-term money rents about 20 years prior to suit, but it is only put forward by one or two witnesses and there is no reliable evidence as to the extent to which it operated.

22. On the whole, we see no reason to differ from the conclusion of the Subordinate Judge that the area of second crop cultivation charged for was not in excess of that existing in 1859. It follows that it was not liable to faslijasti and that the amount collected for fasli 1310 was rightly ordered to be refunded. The question whether any increase in area irrigated was effected without the use of an increased amount of water (vide paragraph 16 supra) does not therefore arise.

23. The next matter for decision is the question of the injunction. As already explained it cannot possibly stand in its present absolute and unlimited form which goes far beyond the rights to which the respondent is entitled or what his vakil now claims The record unfortunately affords no data for granting an injunction in sufficiently precise terms. On the other hand there are obvious difficulties in the way of qualifying it. To be of any use an injunction joust be sufficiently precise to render it easy to determine whether any infringement of it has occurred. In the present case there are no reliable data for fixing the area of second crop cultivation in 1859, and none at all for fixing the quantity of water then used for irrigation of the plaint lands. The only course, unsatisfactory as it may seem, is therefore the omission of the injunction from the decree.

24. The apportionment of costs is somewhat difficult. On the whole it seems equitable that each side should bear its own coats in the Court below and that the respondent should recover his costs in this Court from the appellant. In other respects the decree of the Subordinate Judge will be confirmed.

25. The respondent has filed a Memorandum of Objections regarding the charges collected in faslis 1308 and 1309, recovery of which the Subordinate Judge held to be barred by limitation. The Subordinate Judge was right in holding that limitation runs from the actual date of payment.

26. The Memorandum of Objection must be dismissed with costs.