DISTRICT BOARD OF WEST TANJORE, REPRESENTED BY ITS PRESIDENT Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF TANJORE

JUDGEMENT

(1.) These connected appeals have been argued together and they raise the same point. All ,of them arise out of suits instituted by the District Board, Tanjore against the Secretary of State for India in Council. The suits are for refund of water cess and land cess thereon collected by the Government from the District Board in respect of certain lands in whole inam villages for different faslis. Appeal No. 215 of 2937 relates to the claim for refund of cess for ten years, that is faslis 1333 to 1342 and the claim is for over Rs. 43,000. Appeal No. 95 of 1938 relates to the water cess for fasli 1343 and Appeal No. 216 of 1937 to the water cess for fasli 1344. These suits however do not raise the claim in a general way that is, not on the basis of any proprietory right claimed by the District Board, but on the basis of a certain compromise entered into between the parties in an earlier litigation of 1921., In other words, we have not to decide whether the District Board has the right to irrigate the lands in the villages without payment of water cess, but whether the event that was contemplated in the compromise of 20 September, 1923, (Ex. A) has happened. That event is, to use the words of the compromise, if the Privy Council should decide in any case that may hereafter be taken to it that the decision in the Urlam case is applicable to inam villages. If this has happened, that is, if the Privy Council has decided in any case taken to it subsequently to the compromise of September, 1923, that the Urlam decision applies to whole inam villages, then the plaintiff's claim in the present suit can be said to be maintainable, subject of course to the decision on the other issues raised in these suits which have not been disposed of in the Court below. The point therefore that arises for decision in these appeals is only this, though it is made the subject-matter of no less than three issues in the Court below, namely issues 6 to 8 which run as follows: (6) Has the contingency contemplated by the agreement of compromise happened? (7) What are the true terms of the compromise agreement referred to in the plaint; (8) What is the effect of the Privy Council decision reported in Secretary of State for India V/s. Subramania Aiyar 1933 M.W.N. 559 : 64 M.L.J. 715 (P.C.)? Has it held that the decision of the Urlam case applies to inam villages as well?

(2.) It will be seen that according to the plaintiff-appellant the decision of the Privy Council reported in Secretary of State for India V/s. Subramania Aiyar 1933 M.W.N. 559 : 64 M.L.J. 715 (P.C.), that is the decision in Privy Council Appeal No. 119 of 1931 delivered on the 20 February, 1933, held that the decision in the Urlam case applies to whole inam villages.

(3.) Though the point for decision is comparatively simple and . short, the argument before us has ranged over a wide field, most of which on the appellant's side was intended to show that it follows from the Urlam decision as explained and commented upon in a subsequent case namely, Secretary of State for India v. Subbarayudu (1931) 62 M.L.J. 213 : L.R. 59 I.A. 56 : I.L.R. 55 Mad. 268 (P.C.), that the decision in the Urlam case is applicable to whole inam villages situated in non-zamindari areas. This argument was however only introductory to the real argument in the case which was no doubt that the actual decision in the Urlam case was applied to inam villages in the case reported in Secretary of State for India V/s. Subramania Aiyar 1933 M.W.N. 559 : 64 M.L.J. 715 (P.C.), which will be referred to for the sake of brevity as the Viranvayal case. We are not really concerned in these appeals to decide whether as a matter of fact the principles enunciated in Subbarayadu's case necessarily lead to the conclusion that the decision in the Urlam case which applied to zamindari lands including pre- settlement inams in a zamindari would apply to inam villages in Government ryotwari tracts as in the present case. That question has been decided in the affirmative in more cases than one by this High Court and it is enough to refer in this connection to the cases reported in Yahya Ali Sahib V/s. The Secretary of State , The Secretary of State for India in Council V/s. Aiyanar Kone and S. A. Nos. 309 and 310 of 1928, which are now pending in appeal before the Privy Council. What we have to decide is not whether as a matter of law it follows from the earlier decisions of the Privy Council in the Urlam case and in Subbarayadu's case that irrigation of lands in whole inam villages in ryotwari tract is governed by the same principles as are applicable to irrigation of lands within zamindari tracts, but whether as a matter of fact a decision to this effect was pronounced in the Viranvayal case. The judgment in the Viranvayal case deals with two points, namely (1) whether the river from which water was taken for irrigation belonged to the Government and (2) whether the water in question was supplied from works constructed by the Government. Both these points were found against the Government. There is no express decision in the judgment to the effect that the decision in the Urlam case applies to inam villages in ryotwari tracts or to put it in a slightly different form, in non-zamindari tracts. There is no reference whatever to the Urlam case in the judgment of the Privy Council in the Viranvayal case. The judgment no doubt refers to Subbarayadu's case as having finally decided the question that where the riparian owner owns the bed of the stream up to the medium filum, the river could not be said to belong to the Government. Or, in other words, if the Government sought to establish that the stream belonged to them, they would have to show that they owned the whole bed of the river. In the Viranvayal case the fact that half the bed of the river up to the medium filum belonged to the inamdar (the Rameswaram Devasthanam in that case) was not denied before their Lordships of the Privy Council who observed at the end of "the discussion referred to above that: The claim of the Government to payment of cess therefore failed in that respect and was not contended for before their Lordships.