SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF TINNEVELLY Vs. AMBALAVANA PANDARA SANNADHI AVERGAL, HEAD OF SRI PANCHAKSHARA DESIKAR

JUDGEMENT

(1.) This appeal is preferred by the Secretary of State for India in Council against the judgment of the Subordinate Judge of Tinneyelly in a case in which the right of the Government to levy water cess on 33 and odd acres of land in the inam village of Vadagarai belonging to the plaintiff-respondent is in dispute. The Government claims the right to levy cess on the allegation (paragraph 2 of the written statement) that the waters of a Government channel called Karimandy Ammankal mingled with the water in the Shamalanadhi river more generally known as Pachayar which supplies the channel and the tanks by means of which the plaintiff s village is irrigated, and that they are entitled to charge water rate on any land cultivated in excess of the quantity which was under cultivation at the time of the enfranchisement and confirmation of the inam in 1864-65. It is then claimed (paragraph 4 of the written statement) that the river Pachayar itself belongs to the Government. On the other side, it is alleged (see plaint paragraph 9) that the whole course of the river from beginning to end lies within the plaintiff s inam limits. That statement is found to be not correct and no argument on the basis of it has been pressed before us. This river has its source in the hills which divide Travancore from the British territory in this locality and it flows up to and a little way below the anicut at the point where the channel which irrigates the plaintiff s lands takes off, along the plaintiff s inam village. On the southern side is the village called Arasapattu, the greater portion of which amounting to 390 acres is inam land belonging to the plaintiff and a very small portion amounting to 55 acres is ryotwari. Below the anicut and on the southern side, there is a ryotwari village called Pattai which is also irrigated by this river.

(2.) Admittedly, the quantity of plaintiff s land in the inam village of Vadagarai which was cultivated with water of the Pachayar river at the time of the Inam Settlement was about 115 acres and since then 33 more acres and odd have been converted into wet and it is with reference to the right to irrigate these 33 acres with water of the Pachayar that the question has arisen. The claim of the Government is founded mainly on the ownership of the Pachayar river and also on the allegation that the water of a Government hill stream or " odai"called Karimandy Ammankal gets mingled with the water of the Pachayar river above the anicut.

(3.) It will appear from the map that in its upper reaches the Pachayar bounds the mam village of Vadagarai on the north and the village of Arasapattu on the south. On the east of Arasapattu is the Government village of Pattai through which the river continues its course and we may take it, as contended by the learned Advocate-General- appearing for the Secretary of State, that the Pachayar flows thereafter through a number of ryotwari villages. Though the Pachayar is not an altogether small stream, it is a non-tidal and non-navigable river and like most of such rivers, there is very little water in its bed in the dry season.