BACHIMANCHI VENKATA KOTAYYA SASTRI AND ANR. Vs. THE PROVINCE OF MADRAS REPRESENTED BY THE COLLECTOR OF KISTNA

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by the plaintiffs -appellants for a declaration that the levy of penal assessment by the local Government -respondent is illegal. We are in this case concerned with two Survey Numbers 49 and 52 in the village of Chennurivaripalem, which is a hamlet of Krishnapuram. The two survey numbers in question are portions of Kannigala Madugu, a channel which passes through the village of Chennurivaripalem. The trial Court held in favour of the respondent on all the points and dismissed the suit. On appeal the Subordinate Judge has in paragraph 4 of his judgment pointed out various circumstances which, he says, would go to show that really the channel was part of the village of Chennurivaripalem. Having expressed that opinion, the appellate Judge considers in paragraph 5 of his judgment what he considered is the law on the subject. He is of opinion that because the channel in question passes on and serves other Government villages lower down, it must in law be taken that the plaintiffs do not own the channel in so far as it lies within their village unless they prove that the channels were expressly included in the grant of the village. He states that as the whole channel is 30 miles in length and only one mile of its course lies in the suit village, it must be taken that the portion of the channel which is inside the village does not pass to them unless we have an express grant to that effect. In support of this view the Subordinate Judge has referred to certain decisions. Having regard to the decision of the Judicial Committee in the Secretary of State for India v. Vidya Varada Thirtha Swamigal, (1942) 2 M.L.J. 367 :, L.R. 69 IndAp 22 I.L.R. (1942) Mad. 893 , I think the position is now clear that in such cases it is upon the Government to prove a reservation in its favour either by express reservation or by necessary implication. In the above case, a channel known as the. N.K. Channel took its rise in Government property passed through Government lands, then entered the village of Vagaikulam, of which the respondents' predecessors were the grantees, and after serving the lands in the village directly and through subsidiary channels that branched off from it, the N.K. Channel passed out of the Vagaikulam village and entered Government villages and served those villages. One of the questions raised was whether the channel itself did or did not pass to the grantee. The trial Court held that the channel passed to the grantee under the inam grant. On this and other grounds the trial Court granted a decree to the inamdar. On appeal no opinion was expressed on the question whether the channel passed to the grantee. But on other grounds the High Court confirmed the decision of the trial Court. A further appeal was taken by the Secretary of State for India to the Judicial Committee. A number of questions were raised before the Judicial Committee which are all summarised on pages 900, 901. The third argument runs thus: that in any event having regard to the importance of the N.K. channel and the subsidiary channels in the irrigation system which the Government had set up and was working, an exception of them must be read by implication into any grant of the village as a whole.

(2.) THIS question is dealt with on page 915. They first repelled the claim that the subsidiary channels also must be taken to have been reserved to the Government. They observed thus:

(3.) THE subsidiary channels do in some cases carry water which serves to irrigate the lands of other villages so as to give them prima facie at least some right as lower riparian proprietors. Even so, however, their Lordships think it quite impossible to imply any reservation of the beds or banks of these subsidiary channels, haying regard to their number and distribution throughout the village and to the tanks within the village which are connected with them. So to treat them would alter fundamentally the character and value of the grant. It was pointed out in the Urlam case, (1917) 33 M.L.J. 144:, L.R. 441.A. 166 :, I.L.R. 40 Mad. 886 that if any part of the water carried by the channels was to be specially safeguarded in the interest of some other Government villages it would be enough to imply a reservation of water rights; and that a reservation of the channels would raise questions as to the liability of Government for their upkeep and possibly for their management. Then dealing with the case of N.K. Channel, they said this: There is more to be said for implying in favour of Government a reservation of the N.K. Channel itself. The grant itself was not forthcoming and it was pointed out by the Judicial Committee that the evidence in the case was not enough to enable their Lordships to disturb the finding of the trial Court that the Channel passed to the grantee. They say this: