SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF CHITTOOR Vs. SRI MAHANT PRAYAG DOSSJEE VARU

JUDGEMENT

(1.) The suit out of which this appeal arises was filed in December 1921 by the owner of the Athimanjeri Estate and relates to the Sholinghur Tank. Wet lands in the village of Panchagantaninadhapuram which is within the Athimanjeri Estate are being irrigated by water from this tank and have been so irrigated for more than a century. Until 1920 no charge was made for this irrigation by Government but in that year, and again in 1921, Government levied water-cess. Plaintiff thereupon filed this suit, claiming an absolute right to one-third of the water from this tank and asking for a perpetual injunction restraining Government from levying water-cess, and for the refund of the cess already levied.

(2.) The suit was tried by the learned Subordinate Judge of Chittoor. He found that plaintiff had failed to prove his claim to one-third of the water, but that on the facts it must be presumed that Government had entered into an engagement with plaintiff's predecessor-in- title to supply water from the Sholinghur tank to lands in this village free of charge. He also found, however, that by reason of improvements carried out at Government expense in 1873 the capacity of the tank had been materially increased, and, in consequence, the area of irrigation in the village had also been materially increased. From these facts he inferred that the measure of the grant must be the amount of water which the tank could supply before the improvements were effected and this amount be ascertained, from material contained in cultivation accounts for the years previous to the improvements, to be the quantity which could irrigate eighty acres. He passed a decree accordingly, limiting the refund and the injunction to the quantity of water so ascertained.

(3.) With this decree neither party was satisfied, plaintiff appealing, and Government filing a memo, of cross-objections. In disposing of the appeal and cross-objections the learned District Judge of Chittoor agreed with the Sub-Judge that plaintiff's right to one-third of the water had not been established, and agreed also that the result of the improvements in 1873 had been to bring about a large increase in the area of village lands irrigated from the tank, but he differed from the Sub-Judge's method of estimating the extent of the plaintiff's right to free water. He held that the fact that irrigation prior to the improvements was limited to an average extent of 80 acres was not conclusive, and that other factors besides the lack of water, viz., the apathy, conservatism and lack of enterprise of the ryots had restricted this extent. He realised that it was impossible to arrive at any precise estimate of the quantity of waiter available before 1873, but considered that the fairest method, and the most convenient method, of settling this question was to allow free irrigation to all wet lands in the village for one crop only, reserving Government's right to levy water-cess for any subsequent crop. The effect of this decision is to reduce considerably the amount of water-cess payable by the plaintiff.