SANNIDHIRAJU SUBBARAYADU Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF GODAVARI

JUDGEMENT

(1.) This second appeal arises out of a suit to recover from the defendant who is the Secretary of State for India in Council Rs. 8-13-2 being the water tax collected from the plaintiff by the defendant's officers and paid under protest and now alleged by the plaintiff to be illegally collected. The plaintiff is the pujari of a certain temple which owns a darmila inam, 12 acres and odd in extent. The inam was included in the assets of the zamindari of Guttenadivi at the time of the permanent settlement and was granted to the temple subsequent to it. Hence the word darmila inam (that is, subsequent inam), as opposed to inams granted prior to the settlement and excluded from the assets of a permanently settled estate and afterwards enfranchised by the inam rules in 1861 to 1864. Thus, the suit land is not an enfranchised inam and is part of the zamindari lands of Guttenadivi. The zamindari of Guttenadivi is a small zamindari paying a peishcush of Rs. 651 in Amalapur taluk (vide Maclean's Manual, Glossary, Vol XII under Amalapuram). The river Godavari is cross bunded by an ancicut below the town of Rajahmundry at the village of Dowleshwaram and below it splits up into two branches forming the Godavari delta. The northern branch is known as the Gautami branch and the Southern is known as the Vasistha branch. Between the two branches are the taluks of Amalapur and Razole and the zamindari of Guttenadivi is in the former taluk. The Gautami branch in the course of its progress towards the sea which it joins near Koringa splits up into Innumerable branches which separate and join again forming islands; so that, it is some times difficult to say which is the main stream of the Godavari. The suit lands abut on a branch known as the Addarapu Kalva or Chilapa Kalva. The plaintiff alleged that on both sides of the branch are Guttenadivi lands but the courts below have found this against the plaintiff. They found that while on the one side there are Guttendivi lands, there are on the other side the Government lands of the Yedurlanka village. The plaintiff appellant has questioned the correctness of this finding. For the present, the case will be discussed on the footing that the finding is correct. Both the lower courts dismissed the suit. The District Munsif found (vide paragraph 48 of the judgment) that the Government as owner of one of the bunds is also the owner of the northern half of the bed of the stream. He, therefore, held that the Government is entitled to levy water cess. On appeal the Subordinate Judge held that the stream was navigable and, therefore, belongs to Government. With reference to a contention that the plaintiff is entitled to exercise rights of a riparion owner free of water ceas both the lower courts observed that long user has not been made out in the suit. The plaintiff files this second appeal.

(2.) Before us in second appeal two points have been elaborately argued. First, whether the stream is a navigable stream at the place where the suit lands abut on it, and secondly, in any event, that the plaintiff is entitled to the exercise of riparian rights free of water cess. On the first question, whether the river is navigable, the District Munsif recorded his finding thus (Paragraph 48 of the judgment): One of the branches of the Godavari bifurcates into Virudhagantami and Uppaganti Kalva each a mile wide; that Addarapij Kalva takes off from Uppaganti Kalva; that it is four or five miles long, that on one side of it at the point where plaintiff takes out his water there are Government lands and on the other Zamindari lands; that it is navigable in the ordinary sense of the term for big boats for about 6 or 7 months and only for fishing boats later to a disteance of 20 yards in, the remaining period of the year. It is admittedly subject to tidal action. As owner of one of the bunds half of the stream belongs to Government. On this ground, I find that Government is entitled to levy water cess. It is clear that the District Munsif thought that the river cannot be regarded as a navigable river, for if it could be regarded as navigable, the Government would have been the owner of the whole of the bed, but he held that the Government owned half of the stream. Earlier in paragraph 35, he observed : "The water is fresh only for four months in the year and that it is brackish during the remaining 8 months, that fairly big boats pass over it from July to January and, thereafter, only small novas and that Chilpa Kalva is navigable for six months for fairly big boats." The Subordinate Judge said: The learned District Munsif having fully examined the evidence came to the conclusion that the stream is navigable for big boats for about 6 or 7 months in the year for boats of a load of 15 tons and for the rest of the year for small fishing craft. In this finding of fact also I wholly concur and the result of it is to make it out that the stream is navigable all through the year. I think the Subordinate Judge has misunderstood the District Munsif's finding. The District Munsif did not hold that the stream is navigable all through the year. In his opinion the fact that only small fishing craft passed through the stream after January is not enough to make it navigable, whereas in the view of the Subordinate Judge it is enough. The question, therefore, arises, whether, on the facts found, namely, that the stream is navigable for big boats for about six or seven months but for the rest of the year for small fishing craft only, the river can be held to be navigable throughout the year; and secondly, whether navigability throughout the year is necessary to make a river navigable for the application of the rule that a river which is tidal and navigable belongs to Government. Taking up the latter question first, the point was fully discussed in the judgment in The Secretary of State for India V/s. Venkatanarasimha Naidu (1920) MWN 209. Both the learned Judges held that for a river to be properly described as navigable it must be navigable throughout the year. Burn, J., observed at pages 222: Navigable has always been interpreted to mean navigable throughout the year. J. G. Bagram V/s. The Collector of Bhullooa (1864) 1 WR 243 Chutvder Jaleah V/s. Ram Churn Mookerjee (1871) 15 WR 212, Mohini Mohan Doss V/s. Khajah Assanoollah (1872) 17 WR 73 and The Secretary of State for India Vs. Bijoy Chand Mahatap (1919) ILR 46 C 390. With reference to an argument of the Government Pleader in that case that the Calcutta decisions were based on the wording of the Regulation of 1825, he observed: Assuming this to be so, there seems to me to be no reason to suppose that the public rights in river beds are greater in Madras than in Bengal, at any rate where the banks form portion of permanently settled estates. No Madras authority has been cited which supports the claim now put forward. Sadasiva Aiyar, J., also refers to the cases in Chunder Jaleah V/s. Ram Churn Mookerjee (1871) 15 WR 212 and The Secretary of Etate for India V/s. Bijoy Chand Mahatab (1919) ILR 46 C 390. In the decision in The Secretary of State for India V/s. Bijoy Chand Mahatab (1919) ILR 46 C 390, Fletcher, J., relies on the earlier decision in Chunder Jaleah V/s. Ram Churn Mookerjee (1871) 15 WR 212. The case went up on appeal to the Privy Council and was affirmed in the Secretary of State for India V/s. Maharaja of Burdwan (1921) LR 48 IA 565 : ILR 49 C 103 : 42 M LJ 61 (PC). At page 110, Viscount Cave observes: From Guruchumbook up to Ampta that is to say, for a distance of about fourteen miles, the river is navigable at certain seasons only, and for present purposes may be treated as non-navigable.

(3.) At page 111 it was pointed out that the Subordinate judge came to the conclusion that the whole bed of the river where it ran through the zamindari lands, and the bed ad medium filum aquae where it bounded those lands on one side only, was the property of the zamindar, and accordingly that the churs formed on these parts of the river-bed belonged to the zamindari. At page 112 it was said, in dealing with this appeal their Lordships accept the concurrent findings of the Courts as to the ownership of the bed of the river and of the churs formed upon it since the date of the settlement.