SRI RAJAH VATSAVAYA VENKATA SIMHADRI JAGHAPATHIRAJU BAHADUR GARU, HAVING DIED SUBSEQUENT TO THE JUDGMENT, HIS WIFE SRI RAJA VATSAVAYA VENKATA SUBHADRAYAMMA JAGHAPATHI BAHADUR GARU Vs. SECRETARY OFSTATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF

JUDGEMENT

(1.) The simple question in these appeals is whether the respondents are liable to pay watercess to Government for irrigating lands in excess of the area classed as wet at the Inam settlement with the water of the Etikoppaka channel, similar questions arose in Appasami Aiyar v. The Secretary of State for India in Council (1910) 1 M.W.N. 107 and in Kesri Venkatasubbiah v. Secretary of State for India (1913) 24 M.L.T. 131 the latter decision having been published after the filing of these appeals, 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 O.S. No. 545 of 1885 on the file of the District Munsif s Court of Ellamanchelli, it was decided that two sluices should be constructed at the entrance of the Koppaka Channel, two feet in height, one being 1-1/2 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 Durlapudi proprietor. The right of Koppaka Mokhasadars was thereby recognised by arresting the whole water of the river, giving twothirds of it to Government and taking onethird 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 that the Inam Commissioner only allowed the above said area to be registered as wet land in spite of the Mokhasadar s claim in that settlement to one-third of the water. Exhibit G. is a letter from the Tahsildar of Sarvasiddhi, dated 1-10- 1848, recognising the Mokhasadars rights for a flow of water in one turn through the Etikoppaka channel as against two turns through the Pulaparthi channel and this letter is referred to as one of the documents mentioned in Ex. H, as being in the possession of the Mokhasadar. It is, therefore, argued that, though the Mokhasadar s 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 Inam 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 ces,s 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 O.S. No. 545 of 1885 which undoubtedly binds the parties. Is the right recognised 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 on an " engagement " with-in the meaning of the Act?