SRI RAJAH VATASAVAYA VENKATA SIMHADRI JAGHAPATHI RAJU BAHADUR GARU, DYING SUBSEQUENT TO THE SUIT HIS WIFE SRI RAJA VATASAVAYA VENKATA SUBHADRAYAMMA JAGAPATHI BHADUR GARU; THE SECRETARY OF STATE FOR INDIA IN COUNCIL (REPRESENTED BY THE COLLECTOR OF VIZAGAP Vs. SRI RAJAH VATASAVAYA VENKATA SIMHADRI JAGHAPATHI RAJU BAHADUR GARU, DYING SUBSEQUENT TO THE SUIT HIS WIFE SRI RAJA VATASAVAYA VENKATA SUBHADRAYAMMA JAGAPATHI BHADUR GARU; THE SECRETARY OF STATE FOR INDIA IN COUNCIL (REPRESENTED BY THE COLLECTOR OF VIZAGAP

JUDGEMENT

(1.) The simple question in these appeals is whether the respondents are liable to pay water- cess to Government for irrigating lands in excess of the area classed as wet at the inam settlement with the water of the Eti Koppaka channel. Similar questions arose in Appasami Aiyar v. The Secretary of State (1910) 1 M.W.N. 107 and in Kesari Venkatasubbiah v. The Secretary of State for India (1913) 14 M.L.T., the latter decision having been published after the filing of these appeals; and if those cases were rightly decided, as I think they were, these appeals must be dismissed.

(2.) Prior to the present suit, there has been litigation between the parties. In Original Suit No. 545 of 1885 on the file of the District Munsif s Court of Ellamanchilli, it was decided that two sluices should be constructed at the entrance of the Koppaka channel, two feet in height, one being one and a half yards wide for the use of the Koppaka mokhasadars, and the other, three yards in width, for the use of the Government ryots and the ryots of the Darlapudi proprietor. The right of Koppaka mokhasadars was thereby recognised of arresting the whole water of the river, giving two-thirds of it to Government and taking one-third of it for themselves; and thus their title to one-third of the water of the river was established But in the settlement statement, Exhibit H, only 10 acres 12 cents of land were registered as wet in this mokhasa. It is contended on behalf of the Government the Inam Commissioner only allowed the above said area to be registered as wet land in spite of the mokhasa s claim in that settlement to one- third of the water. Exhibit G is a letter from the Tahsildar of Sarvasiddhi, dated 1st October 1848, recognizing the mokhasadars rights for a flow of water in one turn through the Eti Koppaka channel as against two turns through the Pulaparthi channel and this latter is referred to as one of the documents mentioned in Exhibit H, as being in the possession of the mokhasadar. It is, therefore, argued that, though the mokhasadars are entitled to take one- third of the water, the Government is nevertheless entitled to impose a cess on the extent irrigated in excess of the registered wet area, as the arrangement come to at the mam settlement was a condition precedent.

(3.) The proviso to Section 1 of Act VII of 1865 declares that, where an inamdar is by virtue of engagements with the Government entitled to irrigation free of separate charge, no cess will be imposed under this Act for water supplied to the extent of such right. The question for our decision, therefore, resolves itself into the further question, what is the scope of the judgment in Original Suit No. 545 of 1885 which undoubtedly binds the parties. Is the right recognized in that suit limited by the prior settlement which fixed a definite area of land as entitled to water free of charge? And does the decree operate as an engagement, within the meaning of the Act?