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Judgment
Sadasiva Aiyar, J.—The appellants have no doubt, argued fresh questions which were not expressly raised in the pleadings and which were
probably thought of only after the decision in Kanduhuri Balasurya Prasada Row v. Secretary of State for India I.L.R (1917) M. 886 but having
regard to the very difficult and novel questions raised in these water-cess cases owing to the obscurity of the Water-Cess Act, I think it better to
consider and decide these questions also. On the findings of fact by the Lower Appellate Court, the only arguable questions in this case are; (1)
whether the plaintiffs are riparian owners and whether the plaint lands are riparian lands, (2) whether baling out water from the natural stream Musi
and leading it into and storing it in wells and thence irrigating the plaint lands falls within the natural rights of a riparian owner in India, and (3)
whether the water of the Musi stream, if taken by the riparian owner of inam lands, is water belonging to Government within the meaning of the
Cess Act for which a separate cess can be legally levied by Government.
Assuming for argument''s sake that the first question is to be decided in the appellant''s favour, (that is, that the appellants are riparian owners
and that the lands in dispute are riparian lands), I should be inclined to answer the 2nd and 3rd questions in the appellants'' favour. Clause Section
7(b) of the Easements Act and illustration (j) thereto recognise the right of a riparian owner to enjoy without disturbance "" the natural advantages
arising from the situation, of "" his riparian land including his right to use and consume the water of the stream for drinking, household purposes and
watering his cattle and sheep and ""for irrigating "" such land provided it does not thereby cause material injury to other like owners. It has, no doubt,
been said that "" irrigation necessarily consumes a large part of the water taken from a stream for that purpose, while milling permits practically all
the water to remain in the stream."" and that therefore, ""the right of irrigation is less strong"" than the right of milling. Having, however, regard to the
customs and necessities of a tropical agricultural country like India, Indian Courts should, it seems to me, be liberal in recognising irrigational rights
as natural rights of as strong a character as any other, provided, of course, the lower riparian owners are not injured to an unreasonable extent and
'''' the equality and the wide participation of the benefits "" of the natural stream are not interfered with to an unreasonable extent. (See Vol. II,
Farnham on Waters paras. 465 and 466). (No such question of unreasonableness in the user has been raised in this case).
As I said in Janakiramayya''s case (1916) 29 M.L.J. 389"" It is not wise to confuse ourselves by juggling with the word '' property '' or the word
''owner''"" when used with reference to flowing waters."" Having carefully considered the decision of their Lordships of the Privy Council in
Balasurya Prasada Bow v. Secretary of State for India (1917) 33 M.L.J. 144 I have seen no reason to depart from the opinions which I gave
expression to in Janakiramayya''s case (1915) 29 M.L.J 389 on the extent and limits of the rights of the Government to levy assessment under Act
II of 1905. I am further of opinion that the reasoning on which I founded those opinions applies whether the bed of the stream whose water is used
by an inamdar or a zarnindar to irrigate his riparian lands bordering on a natural stream belongs wholly to Government or partly to Government and
partly to the Inamdar or Zamindar or wholly to the Inamdar or Zamindar. In any of the three alternatives, the Government has, in my opinion, no
right to levy separate water cess for the use of such water. It is significant that the appeal in Ambalavana Pandara Sannadhi''s case to the Privy
Council from the judgment in Ambalavana Pandara Sannadhi v. Secretary of State ILR (1917) Mad. 366 was decided in the appellant''s favour as
governed by the Urlam Judgment though in that case, the lands on only one of the banks of the natural stream belonged to the Mittadar. See foot-
note at page (1917) M.W.N.536
Mr. Ramesam for the Government argued that while irrigation by lifting water from a natural stream and carrying the lifted water at once to the
land direct may be recognised as the natural right of a riparian owner in India, the right to store such lifted water in wells temporarily before
carrying it on to the irrigated lands should not be recognised as a natural right. I am unable having regard to the conditions of the country, to
recognise such prudent and temporary storage in wells as either an unreasonable or non-natural exercise of the natural right of the riparian owner.
The first question, however, remains, namely whether the plaintiffs are riparian owners and whether the plaint lands are riparian lands. It is only
riparian land that is entitled to the natural rights of irrigation from the bordering natural stream. As pointed out by my learned brother in his
judgment, the Musi river was, in 1903 and 1904, nearly half a mile, away from Survey No. 35 in which the plaint lands are situated. The plaintiffs
tried to show by producing a sketch plan that the plaint lands are almost on the northern bank of the present bed of the stream; but the lower
appellate court says that ""this sketch has not been proved"" and that"" it cannot therefore be acted upon"". As regards what is riparian land, the
opinions of judges and text writers have not been uniform. Farnham says in paragraph 463(a):--""The first and the most important test"" is the natural
configuration of the country through which the stream flows, so that all land within the watershed which lies in such a manner that the drainage from
it finds its way into the stream might be regarded as riparian land. But a rule which would recognise such a vast extent of territory as riparian land
would be almost as destructive of the right of the riparian owner as a rule which would permit anyone who could gain access to the water to make
use of it. Such a rule not only would permit the consumption of the water near its source of supply, but it would result in conflicts between land-
owners as to rights of way and the construction of the necessary apparatus to make the water available. Another criterion for determining what is
riparian land might be the land which is in possession of one person whose holdings actually extend so as to come in contact with the water. This
test, in some cases, might be too broad, because part of the land might be out of the natural watershed of the stream and therefore be outside of
the boundaries established by nature for riparian ownership. The criterion which most nearly meets the necessities of the case is the rule that all land
must be regarded as riparian (a) "" when it is within the natural water-shed of the stream"", (b) "" the title to which is in one owner ""and, (c) "" the
boundaries of which have been established in accordance with the requirements of the conditions which will best serve the interests of individual
land-owners Under ordinary circumstances, the individual acquires title to such an amount of land only as he can reasonably care for and cultivate
by his own efforts with such paid assistants as his business ability makes it profitable for him to employ"". I think that, in India riparian land must be
confined to land which is on the bank of the stream and which extends from that bank to a reasonable depth inland. I do not wish to express a final
opinion in this case as to what would be the lineal measurement of such a reasonable depth, but I am clear that a depth of more than half a furlong
would, usually, be unreasonable. In this case, there is no evidence that the plaint lands are situated on the banks of the stream or connected in one
block with lands situated on the bank and owned by the same owner or situated with even a furlong''s depth from the northern bank of the stream.
Mr. Pandalai argued that the case should be sent back for giving an opportunity to the plaintiffs to prove that the lands are riparian lands satisfying
the tests above indicated by me. But this suit is now more than nine years old and this Court allowed to the plaintiffs ample opportunity by its order
of July 1913 to raise all their contentions and adduce all their proofs. I do not think that the plaintiffs are now entitled to any further indulgence so
far as the establishment of the facts necessary to support their claim as riparian owners is concerned, though I have allowed them even at the last
stage to raise these fresh contentions and put forward new arguments in support of the said contentions provided they could sustain arguments on
them on the materials already on the record.
On the ground then that the plaintiffs have failed to establish that the plaint lands are riparian lauds and consequently have failed to establish that
they are entitled to use the water of the Musi stream for the irrigation of the plaint lands without liability to pay assessment to the Government, I
agree that this second appeal should be dismissed with costs.
Phillips, J.
This case has already been before this court on three occasions and finally on 17th February 1914 the case was remanded for fresh trial on 6
issues framed in this court, the original 2nd issue and any other issues that might be framed.
The sole question now at issue is whether Government (1st defendant) has any right to levy water tax on the plaint garden lands 8.58 acres in
extent on account of water taken from the Musi river. The plaintiffs have not been able to locate the plaint lands definitely but say that they form
portion of the 69 acres 28 cents confirmed to plaintiffs at the time of the Inam Settlement. The District Judge has, however, found that the plaint
lands are not portion of the 69 acres of garden land, and has further observed that the finding is not important as even if they formed part of the 69
acres, the further findings as to the source of irrigation refer to the 69 acres as well as to plaint lands. The findings are that the plaint lands form part
of resurvey No. 30, that the only facilities for irrigating the lands at date of settlement were a tank and wells unconnected with the Musi river, that
these sources were taken into account for purposes of enfranchisement, and that there was no agreement between plaintiffs and the Inam
Commissioner for freedom from water tax. Inasmuch as these lands were not irrigated by the Musi river at the time of the Inam settlement, and no
provision was then made for their being so watered, it is obvious that plaintiffs cannot claim the use of that river water by virtue of an implied
agreement, and consequently their suit has been dismissed. This second appeal was filed on 12th July 1915, and it was not until 5th May 1917 that
an additional ground of appeal was filed, upon which the case has mainly been argued. The case now put forward is that the plaint lands being
situated on the banks of the Musi river, plaintiffs as riparian owners are entitled to use the river water for irrigation as of right, apart from any
agreement with Government. This is an entirely new case apparently put forward on the strength of the recent judgment of the Privy Council in The
Urlam case, but in that case the question of whether an engagement with Government could be implied arising out of the natural or prescriptive
right of a riparian owner was left undecided, and the decision was based upon the engagement at the time of settlement, for their Lordships remark
(at page 160) ''It is enough in their Lordship''s opinion that the person relying on the proviso (that is to Act VII of 1865 Section 1) shall show an
engagement between the Government and himself or his predecessors-in-title by virtue of which he is in fact entitled to water for irrigation (1) from
the source from which he is actually irrigating his lands (2) to the amount of water actually used for such irrigation, and (3) without being subject to
a separate charge "" for such irrigation"". It is thus, to my mind, quite clear that the present case cannot be decided by the judment in the Urlam. case
alone, in which the following passages also occurs ""It is a nice problem whether a riparian owner, who is exercising his natural or prescriptive right
of taking water from a natural stream for purposes of irrigation is taking water from a stream belonging to the Government within the meaning of the
Cess Act, "" and this ""nice problem"" was left undecided. It, however, appears to me that the plea now put forward by appellants need not and
should not be determined at all by this court. No such plea was raised in the plaint and there is no issue on the question. No doubt an issue was
framed as to whether plaintiffs are entitled to the water as of right, but that this issue did not refer to their right as riparian owners is clear from the
latter part of the issue which runs and have been in enjoyment of the same over the statutory period"". There is a reference in the plaint to some of
the garden lands being situated on the bank of the Musi river but it is nowhere specifically stated that the plaint lands are so situated and the
statement in paragraph 1 of the 1st defendant''s written statement ""nor have they any right to the water of the river flowing past their land except to
the extent to which their right to irrigation was recognised at the Inam settlement cannot be deemed to be an admission that the plaint lands are
riparian lands. It does not appear from the Inam Settlement that the lands were on the bank of the Musi river and it is clear from the Survey plans
which were prepared in 1903 and 1904 that the Musi river is nearly half a mile from the Survey No. 35 in which the plaint lands are found to be
situated. If therefore plaintiffs have any right as riparian owners, they must have acquired the rights since 1904. It is in evidence that the course of
the river has shifted considerably of recent years, but there is no evidence to show in which year the plaint lands became riparian lands if they ever
did so. The levy of the water tax complained of was for water taken in fasli 1316 (1906-1907). If therefore plaintiffs are allowed now to raise this
plea of riparian right, the case would have to be sent back to be tried upon an entirely new set of facts. As this litigation was started in 1908, I
think it would be most improper to allow plaintiffs to put forward this new case which has only been discovered two years after this second appeal
was filed, and nine years after the suit was instituted.
I would therefore dismiss this second appeal with costs.