SECRETARY OF STATE FOR INDIA IN COUNCIL BY ITS AGENT THE COLLECTOR OF KISTNA Vs. SRIMANTHU RAJAH YARLAGADDA SIVARAMA PRASAD BAHADUR ZAMINDAR GARU

JUDGEMENT

(1.) The suit out of which these appeals arise was filed in 1927 by Rajah Yarlagadda Ankineedu Prasad, the proprietor of the Devarakota zamindairi, which is in the Kistna District, to establish rights claimed by him in a stream which flows through the estate. The water from this stream is used by the zamindar and his tenants for irrigation purposes. The Government of Madras has always claimed the right of levying cess in respect of water so used and until after the plaintiff bad succeeded his father as the zamindar, the justice of the claim was recognised. The plaintiff's father died in 1921. For faslis 1334, 1335 and 1336 which correspond 10 the years 1924-25, 1925-26 and 1926-27, the Government required the plaintiff 1.0 pay in the aggregate Rs. 1,952-14-4, as water cess in respect of lands irrigated From this stream. The plaintiff decided to challenge the legality of the Government's demand for water cess and in his plaint he asked for a decree for repayment. of the Rs. 1,952-14-4 with interest at 9 per cent, per annum, in all Rs. 2,237-11-8; for a declaration of his rights in the stream and its tributaries; and for an injunction restraining the Government from interfering with the rights claimed by him and from exercising or asserting any right in respect of the stream or its tributaries within the limits of the zamindari. The plaintiff died during the pendency of the suit, which was continued by his son, the first respondent in Appeal No. 33 of 1938 and the appellant in Appeal No. 60 of 1938, who, on his father's death, became the holder of the estate. In the trial Court the original plaintiff was referred to as the first plaintiff and the present plaintiff as " the second plaintiff," and it will be convenient to continue these descriptions. ,

(2.) The Subordinate Judge of Masulipatam, who tried the suit, held that the second plaintiff had " full rights " in the stream and its feeders within the limits of the estate and that he was entitled to use/the, water subject to the liability to pay cess in respect of water used in excess of what was required to irrigate an area of 2,724.57 acres of cultivated land. With regard to this area the Subordinate Judge found that a permanent exemption from the payment of water cess had been granted in 1867. He refused to grant a decree for a refund of the Rs. 2,237-11-8, but directed that the injunction asked for should issue. The Secretary of State for India in Council has preferred Appeal No. 33 of 1938 from the decree passed by the Subordinate Judge. He contends that the Subordinate Judge erred in holding that the second plaintiff was entitled to exemption from water cess in respect of the 2,724.57 acres and in issuing the injunction. The second plaintiff, as the appellant in Appeal No. 60 of 1938, contends that the Subordinate Judge should have held that he was entitled to withdraw water from the stream for irrigation purposes without any liability at all for water cess and therefore is entitled to a refund.

(3.) In the year 1854, the Government of Madras carried through a scheme for the irrigation of agricultural lands in the Kistna district. A bund was built across the Kistna river at Bezwada and channels were constructed to conduct the flow of water so arrested to the areas intended to be benefited. The stream with which this suit is concerned has several names. In the judgment it is referred to as " the Gunderu," but it is also known as the " Kannikalamadugu " and in this Court it has been referred to as " the Kannikalamadugu," as that is the name given to it in some of the important maps. The stream commences near Devarapalle in the Vallur estate, which lies to the north of the Devarakota estate. Formerly the " Kannikalamadugu " ran into an arm of the Kistna, known as the Puligadda, which lies to the south of the zamindari. It no longer flows into the Puligadda, but continues eastwards until it joins the sea near Masulipatam. An important question in this case is whether the Government of Madras stopped the flow into the Puligadda and constructed an artificial channel to conduct the water to the sea or whether the " Kannikalamadugu " forced its own way to the sea near Masulipatam. It is common ground that when the Kistna anicut was constructed the " Kannikalamadugu "was connected with it and that it has remained connected with it ever since.