The Secretary of State for India in Council vs Rao Bahadur Paul Appasawmi

Varadachariar, J.—These are second appeals by the Secretary of State for India against decrees of the Courts below directing refund of

water cess levied on the plaintiff''s inam lands and restraining the defendant by injunction from levying; water cess in future on those lands. All the

three cases have been dealt with together in the lower Appellate Court and may similarly be dealt with here. Though no document of grant is

available, and indeed none seems to have been produced even before the Inam Commission, there can be very little doubt that the inam, grant was

of the entire village and not of any portion thereof; reserving any other portion to the grantor. As pointed out by the lower Appellate Court, it is so

stated in column 13 of the inam register; and such other evidence as we have as to the user of the tank by the inamdar in respect of fishery rights

and so on and of repairs executed by him to the tank only goes to confirm the inference suggested by the entries in the inam register, that it must

have been a grant of the whole of the village and not of a part of the village.

The inam register refers to the nature of the original grant as one on kattukuthaqai. This is denned in Wilson''s Glossary as land ""held in farm on a

permanently fixed money rent,"" but the account in Mr. Venkasawmy Rao''s Manual of the Tanjore District is fuller. It is there pointed out that the

underlying idea was that the payment should be by way of a consolidated assessment on the entire village area, with full liberty to the grantee in

respect of the extent of land to be brought under the plough and the crops to be raised, without any enhancement of the demand. The inam register

also contains a note in this case that the village was originally granted on the kattukuihagai system ""in consequence of the ruined condition of the

tank at the time of the grant"". This circumstances far from making it probable that the tank was reserved by the grantor certainly supports the

contrary inference that the grantee was expected to restore the tank and make it efficient, as a source of irrigation. This again is in conformity with

the subsequent course of conduct, viz., that the inamdars have all along effected repairs to the tank, enjoyed the fishery lease thereof and otherwise

treated themselves as owners of the tank. It is thus clear that even the considerations mentioned in Ambalavana Sannadhi v. Secretary of State for

India 28 M. 539 : 15 M.L.J. 251. and Narayanaswami Naidu v. Secretary of State for India 24 M.L.J. 36 : Ind. Cas. 261 : (1912) M.W.N. 496

in favour of an inference of reservation of the source of irrigation to the grantor do not exist here. On the other band, the case will be governed by

the principle recognised by Benson and Sundara Ayyar, JJ., in Secretary of State v. Kannepalli Venkatarathnamah 23 M.L.J. 109 : 37 M. 364.

The learned Government Pleader put forward an argument with reference to the extents entered under the various heads in the inam register;

that they do not comprise the bed of the tank as part of the inamdars land. I do not agree that a correct reading of those entries supports that

argument. As usual, the whole extent of the village is first stated, a certain portion is deducted as poromboke and the rest alone classified under the

three heads of wet, dry and garden, each head being sub divided in turn, under-cultivated and poromboke. I presume that the tank bed and the

bed of the channel must be comprised in the first general deduction under the head of promote. The inam register itself refers to the fact that the

village is irrigated by water from this tank and that this tank receives its supply of water from the Oittar river, through a feeder channel. It certainly

could not, therefore, have been lost sight of that the tank formed part of the inam. I, therefore, see no reason to differ from the conclusion of the

Courts below that the tank which is wholly situated within the inam village and so much of the feeder channel as lies within the limits of the inam

village form part of the inamdar''s property.

It is true that the decision of the Privy Council in Secretary of State for India v. Sreenivasachariar 44 M. 421 : 60 Ind. Cas. 230 : AIR 1921

P.C. 1 : 40 M.L.J. 268 : (1921) M.W.N. 111 : 29 M.L.T. 181 : 19 A.L.J. 201 : 33 Cri. L.J. 280 : 13 L.W. 592, 25 C.W.N. 818 : 3 U.P.L.R

(P.C.) 43 : 48 I.A. 56 (P C.) has put a restricted interpretation upon the nature of the inamdars property in the land granted to him as inam, but no

difficulty arises in the present case on account of that theory because even in the view that the land was granted to him only for the purpose of

cultivation, it must reasonably follow that the tank also must have passed to him to the extent necessary to enable him to cultivate the lands thus

granted. We are not concerned in this case with any question of sub-soil rights.

Once it is held that the tank is the property of the inamdar, at least in the sense above indicated, and it not being proved that the size of the

feeder channel or the tank has been enlarged by the inamdar, I see no reason for not following the course forum decisions in this Court which have

held that the inamdars immunity from water cess is not restricted to the extent of mamool wet lands.

The second appeals fail, and are dismissed. As regards costs, the respondent in A.S. No. 1753 of 1981, will get the costs incurred in respect of

printing charges and vakalat. Counsel''s fee will be allowed in A.S. No. 659 of 1933 only on set to be shared equally by respondents Nos. 1 and

Time for payment 3 months.

(Leave to appeal refused).