Bardswell, J.

1. The suits under appeal have had a long history. The plaintiffs who are ryots in the Gundepalli Zamindary, brought them for a declaration that defendant 1, who is the Secretary of State represented by the Collector of Kistna, is not entitled to levy water tax on the lands cultivated by them, for a refund of such tax already collected for three faslis and for other reliefs. The trial Court and the first appellate Court found in their favour but on second appeal Oldfield and Seshagiri Aiyar, JJ., held that the suits had not been properly dealt with and remanded them for fresh disposal on issues that were then framed. After the remand the first two Courts again both found for the plaintiffs, but, on second appeal, Phillips, J., dismissed the suits. These Letters Patent Appeals are against his decision.

2. The lands of the plaintiffs are situated in the village of Chodavaram, a zamindari village. That village adjoins the Government village Ananthapalli, the lands of which are irrigated from a channel known as the Ananthapalli channel. That channel takes off from the Yerrakalva, a natural stream which is maintained by Government. The surplus water of the Ananthapalli lands flows into Chodavaram either by distribution channels or by drainage from the Ananthapalli lands and is then stored in what are either small ponds or mere natural depressions. The question that arises is whether or not the Government is entitled to levy a charge for the use of the water by the appellant-plaintiffs.

3. It is a matter of the interpretation of Section 1 of Madras Act VII of 1865. In that Act as originally passed Section 1 ran as follows:

Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to, or constructed by, Government, it shall be lawful for the Government to levy, at pleasure, on the land so irrigated, a separate cess for the use of the water, which cess shall be additional to any land assessment that may be leviable on the said lands as unirrigated or punja; and the Government may prescribe the rules under which, and the rates at which, such water-cess as aforesaid shall be levied, and alter or amend the same from time to time.

4. By an amending Act V of 1900, this section down to the words 'constructed by Government' became Clause (a) of Section 1 and there was introduced anew Clause (b) which runs thus:

(and also) 'Whenever water by direct or indirect flow or by percolation or drainage from any such river, stream, channel, tank or work from or through adjoining land irrigates any land under cultivation or flows into a reservoir and is thereafter used for irrigating any land under cultivation, and, (in the opinion of the Revenue Officer empowered to charge water-cess, subject to the control of the Collector, the Board of Revenue and the Government) such irrigation is beneficial to, and sufficient for the requirements of, the crop on such land';

after which follow the rest of the original section with some modifications that do not now concern us. The part of Clause (b) about the opinion of the Revenue Officer, etc., as to the irrigation being beneficial was introduced by Madras Act VIII of 1914, and there is no question here of the opinion not having been expressed or of its being one that can be questioned in a Court of law. The question is simply one of whether, allowing that the irrigation was beneficial, a charge for the use of the water can be made.

5. As has been pointed out by Phillips, J., what has to be decided is not whether the water belongs to the Government, but whether it comes from a river or stream that belongs to Government. In this case it comes from the Ananthapalli channel which admittedly belongs to Government while that channel takes off from the Yerrakalva at a part where that stream flows through Government land, so that it has to be taken as ' belonging to Government ' in the sense given to those words in the Privy Council decision in The Secretary of State for India v. Subbarayudu . In The Secretary of State for India v. Swami Naratheeswarar : (1910)20MLJ766 there is a decision by a Bench of this Court in a case where water flowed from what was admittedly a Government source into a taruvai (sheet of water) of which two-fifths belonged to the plaintiff, as inamdar, while the rest belonged to Government. The portion of the taruvai owned by the inamdar was a deeper portion and he was compelled to raise wet crops on dry land because so much of water came into the taruvai from the Government source as to cause it to overflow. In spite of this and in spite of the fact that some of the water in the taruvai was rain water, it was held that he was liable to pay the water-cess under Section 1(b). Phillips, J., has followed this decision but Mr. Varadachari contends that it is no longer good law. He refers to the Full Bench decision in Chinnappan Chetty v. The Secretary of State for India I.L.R.(1918) Mad. 239 : 36 M.L.J. 124 (F.B.) but, as has been pointed out in the judgment on second appeal, the question then for consideration was that of whether when a river flows first through ryotwari tracts, then through a Zamindari and then again through a Government village it was not a river belonging to Government at the place where it passes through the Zamindari. This is not such a case. In Subbarayudu v. The Secretary of State for India : (1927)53MLJ868 Ramesam, J., has suggested a doubt as to the correctness of the decision in The Secretary of State for India v. Swami Naratheeswarar I.L.R.(1910) Mad. 21 : 20 M.L.J. 213 (P.C.) in the following passage which has been quoted by Phillips, J.:

One might concede that where water from the Government source directly irrigates the inam, the inam is certainly liable to pay water-cess, but where the water from the Government source naturally flows into a tank or stream within the inam and then the water is used for irrigation it is only natural rights that are being enjoyed and therefore the inam is not liable for water-cess.

6. So far, however, as these remarks refer to tanks, they appear to be contrary to the language of Section 1(b) which expressly makes liable to charge water which flows from a Government source into a reservoir and is thereafter used for irrigating any land under cultivation. A tank is certainly a reservoir and the natural ponds and depressions in which water is stored in the cases now under notice would equally come under that category. As has been pointed out by Venkatasubba Rao, J., in an unreported decision, Syed Hyder Ali Saheb v. The Secretary of State for India in Council, to which Ramesam, J., himself was a party in S.As. Nos. 1519 and 1520 of 1927,

The Irrigation Cess Act provides that when water of a certain description is used for irrigating any land, it shall be lawful for the Government to levy cess for such water. The Act is not concerned with the question, whether the water has or has not become the property of the person using it.

7. I do not find anything in The Secretary of State for India v. Subbarayudu that has any bearing upon what appears to be the plain meaning of Clause 1(b) as to water that flows into a reservoir from a Government source whether by direct or indirect flow, percolation or drainage. The Privy Council decision in Prasad Row v. The Secretary of State for India (1917) L.R. 4 IndAp 166 : I.L.R. 40 Mad. 886 : 33 M.L.J. 144 (P.C.) has no bearing on this particular point. The tax then which has been imposed on the appellant-plaintiffs for the use of water would appear to be correct and in accordance with Section 1(b) of Madras Act VII of 1865 unless it can be shown that their case falls under the first proviso, to which I have now to refer. That proviso runs thus:

Provided that where a Zamindar or inamdar or any other description of landholder not holding ryotwari settlement is by virtue of engagements with the Government entitled to irrigation free of separate charge no cess under this Act shall be imposed for water supplied to the extent of this right and no more.

8. In their plaints the plaintiffs have set up mamool rights in accordance with a definite arrangement and 'the immemorial usage'. The definite arrangement or agreement of 1843 which was set up has been found against, but the learned Subordinate Judge, on first appeal after the remand, has held that in the circumstances the presumption of a lost grant could be reasonably inferred. Phillips, J. has remarked that only before the Subordinate Judge, when the suits had reached their fifth Court, was the theory of lost grant raised, and that it was a new theory which could not be allowed to be taken at so late a stage. It certainly does not appear to have been taken when the suits first came before this Court on second appeal as the issues that were then framed raised the question of whether the plaintiffs were entitled to irrigation free of charge on any of the three grounds:

(a) The agreement of 1843,

(b) any agreement entered into at the permanent settlement, and

(c) by virtue of any easement.

9. The agreement of 1843 has, as stated already, been found against while the plaintiffs have not and could not base their claim on any sanad at the time of the permanent settlement as at that time the upper village of Ananthapalli did not belong to Government, but was included in the Nuzvid Zamindari. The right of easement has been found against on first appeal though the trial Court held that that right had been established. Phillips, J. has accepted the view of the learned Subordinate Judge as to this without comment. Mr. Varadachari contends that at any rate the matter of long user has to be considered and that this has been set up in the plaint, while in the written statement of 9th January, 1915, there has been a denial of customary right. In making the denial the written statement urged that the allegations in the plaint on the subject were very meagre, the reference being to what is stated in the plaint as to the claim of the plaintiffs being based on the 'arrangement and the immemorial usage'. It is also pointed out that the District Munsif who first tried the suits found that the plaintiffs were entitled to free irrigation in respect of the suit lands as they had cultivated them from time immemorial and had not extended their area of cultivation. It cannot, therefore, be said that the point of the plaintiffs having obtained right from long user was taken and considered only at a late stage of the suits. Mr. Varadachari argues that from the fact of long user which has certainly gone on for sixty years and more it should be taken that there was at least an implied engagement by the Government for the appellant-plaintiff to have the use of the water. He has referred in this connection to The Secretary of State for India in Council v. Maharaja of Bobbili and The Secretary of State for India in Council v. Subbarayudu but neither of these decisions is upon facts corresponding to those now under notice. The former was a case of water being taken from a channel part of which flowed through the land of a Zamindar whose right to take water from that part of it which flowed through his land was in question. The latter was one of taking water from a river by a party having riparian rights. In the former case, too, it was found that the former owners of the Palakonda Zamindari, to whose position the Government had succeeded, had agreed to the taking of water from the channel through five sluices by the Zamindar of Bobbili whose right so to take water was in question in the suit. Here there has been no such agreement. As has been pointed out by the Subordinate Judge who decided the first appeal, the agreement, Ex. A, which the plaintiffs set up and which he did not find to be genuine, was not between one Zamindar and another, but between the Kapus and the Karnams of one village and the Zamindar of the other. Even if Ex. A were genuine as was agreed to by the Kapus and Karnams it could not bind their Zamindar, neither could it bind the Government which succeeded to his position; while the fact that the plaintiffs have set up this agreement of 1843 implies that there had been nothing in the way of an engagement prior to that year. Is there anything in the circumstances from which it can be inferred that there has been an implied engagement at any later time? I think not. For one thing it is very doubtful whether the charge could have been made under Section 1 of Act VII of 1865 and before the addition of Section 1(b) by Act V of 1900, in which case during the period from 1865 to 1900 the Government in not imposing the tax was not foregoing the making of a charge which it was entitled to make. Certainly it was only by the introduction of Section 1(b) that its right to make the charge was made clear and the tax appears first to have been imposed in fasli 1321, that is 1911-12. And further, as is shown in paragraph 7 of the first appellate judgment there has not been a continuous and consistent use of the water by the plaintiffs or their predecessors by the aid of which they could raise their crops and which could be deemed beneficial. In some years there has been sufficient water for the raising of crops and in some years there has been an excess of it. When such is the case I do not see how there can be either an implied engagement or the acquisition of an easement. Nor is it a case of natural flow. It is a matter of water overflowing from higher lands to lands lying lower down. The supply of water is precarious and when, in the circumstances, the plaintiffs cannot be held to have obtained any prescriptive right, they cannot insist on its coming down in any sufficient quantity to enable them to raise crops or even on its coming down at all. It is not at all the case of water flowing naturally down a river or stream or any naturally formed water-course. Mr. Varadachari has referred us to Illustration (j) to Section 7 of the Indian Easement Act but that does not seem to have any application to the circumstances of this case.

10. In my view the decision of the learned Judge under appeal is correct. These appeals must, therefore, be dismissed with costs.

Horace Owen Compton Beasley, C.J.

11. I agree.