Judgement Appeal from a decree of the Chief Court (Jan. 24, 1898) affirming a decree of the Divisional Judge of Lahore (June 7, 1895) and dismissing the appellants suit. In that suit, brought in the District Court of Multan on August 23, 1892, the appellants claimed title to Law. Rep. 28 Ind. App. 211 ( 1900- 1901) Ahmad Yar Khan V. Secretary of State for India in Council 98 Hawijah Canal, in the District of Multan, under the circumstances stated in the judgment of their Lordships. All questions of fact had been concluded by concurrent findings of the Courts below. The main question decided in the appeal was as to the nature of the title which vested in Ghulam Kadir, the father of the three appellants and the second respondent, as affected by the construction and effect to be attributed to a sanad granted to him by the Government on March 20, 1886. Ghulam Kadir died in 1888, leaving four sons. Dissensions arose between them, and litigation arose in December, 1888, which resulted in the appointment by the Court of the Deputy Commissioner of Multan as receiver of the whole of the deceaseds estate, including the canal. Shortly afterwards the Government sanctioned the taking by the Deputy Commissioner into his own hands of the control and management of the said canal and the distribution of the water flowing through the same under the proviso contained in the 8th paragraph of the sanad. In the present suit of 1892 the appellants claimed title as absolute proprietors of the canal from the Sutlej to Hawijah, and alleged that the Government had wrongfully taken possession thereof, and refused to render accounts of its management. The Secretary of State in his written statement admitted that the canal was excavated by the plaintiffs ancestors, and was in their possession and management till December 10, 1888. He also admitted that the bed and banks of the canal belonged to the plaintiffs, who had also a preferential right to water under the deed of March 20, 1886; but he denied that the plaintiffs had any proprietary right in the water conveyed by the canal, and justified the action of Government on the deed of March 26, 1886. He also admitted that the bed and banks of the canal belonged to the plaintiffs, who had also a preferential right to water under the deed of March 20, 1886; but he denied that the plaintiffs had any proprietary right in the water conveyed by the canal, and justified the action of Government on the deed of March 26, 1886. The Divisional Judge found that prior to the grant of March 20, 1886, the appellants had no legal rights in the canal, and that as soon as the lease of the said bar-barini lands came to an end any rights the appellants might have had in the canal came to an end also. He held that throughout the sanad there was nothing which amounted to an acknowledgment that the appellants held any proprietary right in the canal, but that any claim thereto had been consistently denied by the Government; that the true construction of the 8th paragraph was that the Secretary of State was entitled to take into his own hands, through his subordinate officers, at his pleasure all the powers which were exercisable by the appellants in the canal, and that the only proprietary rights vested in the appellants were such as were connected with the bed and banks of the canal so far as these lay within the limits of the 60,000 acres of land granted by the Government to the appellants family, and that the Government were entitled at any time to take over the control of the water of the said canal, its management and distribution, without any reference to the appellants or the payment of any compensation, and he concluded his judgment by finding that the appellants had no cause of action against the Secretary of State for anything that he had done in connection with the canal; that they had never had any proprietary rights in the canal, and were, therefore, not entitled to any of the reliefs claimed. The Chief Court in appeal held that, by the sanction originally given to construct a canal, all that was granted to Ghulam Mustapha Khan was permission to make a canal for the purposes of his lease, and that in the event of that lease not being renewed on its expiry, his rights in the canal would lapse with the lease. The Chief Court in appeal held that, by the sanction originally given to construct a canal, all that was granted to Ghulam Mustapha Khan was permission to make a canal for the purposes of his lease, and that in the event of that lease not being renewed on its expiry, his rights in the canal would lapse with the lease. They further held that the Government was justified in taking over the canal and dealing with it under the Canal Act (VIII. of 1873) ; that the plaintiffs were not entitled to any declaration of proprietary rights in any part of the canal outside the 60,000 acres granted to them, seeing that Ghulam Kadirs interest was limited to (a) a proprietary right in such part of the bed and banks of the canal as lay Law. Rep. 28 Ind. App. 211 ( 1900- 1901) Ahmad Yar Khan V. Secretary of State for India in Council 99 within the boundary of the land granted to him, and (b) the right to irrigate his land through the said canal. Accordingly, the plaintiffs were not entitled under s. 56 of the Specific Relief Act (I. of 1877) to the relief sought. Mayne, C. W. Arathoon, De Gruyther, and A. K. Khan, for the appellants, contended that the Courts below erred in law in holding on the admitted facts that the plaintiffs predecessors in title acquired no proprietary interest in the canal constructed by them. They were in possession of Government waste lands in Multan which were incapable of cultivation for want of water. In 1860-61 they applied for and obtained Government permission to construct the canal. They acquired the necessary land from its proprietors, settled bodies of cultivators, and a general improvement in the Government waste lands resulted, with a corresponding increase in the Government revenue therefrom. In 1879 a grant to them of 60,000 acres was sanctioned, but no formal deed was executed, although Ghulam Kadirs ownership was recorded in the register, and until his death his title was consistently admitted and acted on. With regard to the claim that his rights only existed for the term of the settlement and expired therewith, it was contended that his rights accrued from construction with the sanction of the Government, and were antecedent to any grant. With regard to the claim that his rights only existed for the term of the settlement and expired therewith, it was contended that his rights accrued from construction with the sanction of the Government, and were antecedent to any grant. The grant was made to enable the constructor to collect his dues, and the right in question was not of a nature to terminate at the settlement. The right was not merely to the user of the water it was to the bed and bank and water of the canal so constructed, and involved full absolute proprietary right. The foundation of the proprietary right was the concession for the purpose of constructing the canal, and the vast outlay made by the plain tiffs predecessors on the faith of that concession. The right was absolute and indefeasible, and no intention was shewn that it should be temporary and limited to the term of the settlement. Reference was made to the Canal Act (VIII. of 1873), ss. 21, 29, 89. Then, as regards paragraph 8 of the deed of 1886, it was unreasonable to suppose that the plaintiffs could have intended thereby to concede to the Government the power at its will to deprive them of a valuable vested title. If such had been their intention, there would have been a corresponding consideration for this valuable concession. But the only con sideration appearing was a grant of some waste lands which might at any time have been rendered valueless by the Government fixing a water rate which would leave the plaintiffs no margin of profit. On the true construction of that deed there was no waiver by Ghulam Kadir of his rights in the canal. The solo reason, moreover, given by the Government for its inter- ference with the canal in 1888- 1889 was the dissensions of the family. There was no claim of title the object was simply to secure the proper and effective management of the canal, which was endangered by these dissensions. Paragraph 8 of the deed was limited to provide a safeguard against mismanagement, on account of the large interests involved in the maintenance and management of the canal. It was never intended and does not purport to confer on the Government any title in the canal as against the appellants, or the power to confiscate their rights. Paragraph 8 of the deed was limited to provide a safeguard against mismanagement, on account of the large interests involved in the maintenance and management of the canal. It was never intended and does not purport to confer on the Government any title in the canal as against the appellants, or the power to confiscate their rights. The Deputy Commissioner should be directed to account for the period during which he acted as receiver. Cohen, K.C., and Branson, for the respondent, the Secretary of State, contended that the decree appealed from should be affirmed, and that there was a right to the injunction claimed. The appellants were not the owners of the canal. No irrevocable or permanent lease of it or of the land on which it was constructed had ever beengiven. Whatever lease was given expired with the settlement. Their rights must be ascertained exclusively by the sanad of 1886. Under that deed the appellants and their brother were entitled to the bed and banks of the canal so far as the same lay within lands granted by that deed. They had no proprietary rights in the waters flowing through the canal. They had simply a preferential right to water their lands by means of the canal subject to paying their share of the cost of its maintenance. This right they shared with other landholders and with persons who were irrigating their lands from the canal at the date of the grant. The Secretary of State was authorized by the sanad to do as he had done—that is, take over the management and possession of the canal; and in doing so he did not infringe or threaten any legal right of the appellants. Even assuming that the proprietary right Law. Rep. 28 Ind. App. 211 ( 1900- 1901) Ahmad Yar Khan V. Secretary of State for India in Council 100 in the canal was vested in the appellants as claimed, that did not affect the respondents rights under paragraph 8 of the deed. In the public interests and for the preservation of valuable private rights the Government were bound to make that stipulation, and to act on it when the necessity arose. They were themselves the sole judges of the necessity. In the public interests and for the preservation of valuable private rights the Government were bound to make that stipulation, and to act on it when the necessity arose. They were themselves the sole judges of the necessity. They assumed the management as stipulated, and there was nothing in the deed to render them accountable to the plaintiffs, or to impose on -them any liability to compensate them. They are entitled to retain that possession and management so long as they think it necessary in the interests of the public, and of the continuance of that necessity they are the sole judges. The question of abstract proprietary right is not therefore of the first practical importance, for according to the terms of the sanad the Courts are debarred from granting any relief against the respondent, who is entitled to act as he has done on his own views as to any allowance or consideration which may be due at his discretion to the appellants. Mayne replied. The judgment of their Lordships was delivered by LORD MACNAGHTEN. The substantial question to be determined in this case is, What are the respective rights of the appellants (who were plaintiffs in the suit) on the one hand and the Government on the other in the Hajiwah Canal—a work constructed many years ago under the sanction of the Government by the grandfather and the father of the plaintiffs? Is the canal for the greater part of its course now vested absolutely in the Government to the exclusion of the representatives of the original undertakers (as both the Courts below have held), or have the appellants as such representatives, in common with their elder brother the second respondent, a proprietary right in the whole of the canal, subject only to a special privilege conferred upon or reserved to the Government by a sanad dated March 20, 1886 ? The Hajiwah Canal is an important irrigation work in the district of Multan. It is some 50 miles long, about 40 feet wide, and more than 10 feet in depth. It is supplied with water from the Sutlej, and extends from its intake on that river to certain lands in Tahsil Mailsi, which were formerly jungle or waste lands belonging to the Government, and known as bar-barini lands from the circumstance that their occasional cultivation depended upon rainfall. It is supplied with water from the Sutlej, and extends from its intake on that river to certain lands in Tahsil Mailsi, which were formerly jungle or waste lands belonging to the Government, and known as bar-barini lands from the circumstance that their occasional cultivation depended upon rainfall. It seems that in 1860 the revenue of these lands, which were inhabited mainly by nomad tribes, was in lease to one Ghulam Mustapha Khan for the period of the then current settlement. On May 5 of that year Mustapha Khan presented a petition to Government stating that, " with a view to render the land culturable and facilitate the payment of the lease money and for the benefit of the public/ he, " at the expense of thousands of rupees from his own pocket," was " willing to dig two water cuts, one for the irrigation of the land in Ludan, which is occasionally watered from the Sutlej, and the other for irrigating the land Khai, a Government jungle, from the same river." He therefore prayed that he might be granted permission to construct two nalas. The order on the petition was that the original should be sent to the Deputy Commissioner of Multan with a request that he would have a plan of the nalas in question prepared through the Khan. Under date of August 30, 1861, there is a memorandum or report among the Government records to the following effect " A detailed plan of both the nalas, shewing the name and mark of each nala, &c, has been prepared. The persons whose lands are to be occupied by the nalas are all agreeable to the construction thereof. As regards the compensation (hakrasi) payable to the proprietors of the lands to be occupied by the nalas, the Khan has, with their consent, which has been obtained in a lawful manner, come to a settlement that proposals will be made at the time of opening of the nalas. Under these circumstances the opening of both the nalas should be allowed, because a considerable area of land will thus be. rendered fit for cultivation, and there is every hope of increase in the Government revenue. Acting on this report, the Commissioner sanctioned the project on September 4, 1861. Under these circumstances the opening of both the nalas should be allowed, because a considerable area of land will thus be. rendered fit for cultivation, and there is every hope of increase in the Government revenue. Acting on this report, the Commissioner sanctioned the project on September 4, 1861. There seems to be no other document or record in existence throwing light on the circumstances under which the construction of the Hajiwah Law. Rep. 28 Ind. App. 211 ( 1900- 1901) Ahmad Yar Khan V. Secretary of State for India in Council 101 Canal was authorized, or expressing the commands or intentions of the Government with regard to it. Having thus obtained the sanction of the Government, Ghulam Mustapha Khan commenced the construction of the canal. It was completed after his death by his son Ghulam Kadir Khan, the father of the plaintiffs and the second respondent. The canal was constructed partly on Government land and partly on the land of private owners under arrangements with them. The work is said to have cost in all about nine lakhs of rupees. The annual cost of maintenance and clearance appears to be over Rs.8000. The first question is, What rights did Mustapha Khan and Kadir Khan acquire from the Government ? It seems to their Lordships that under the circumstances the undertakers acquired a proprietary interest in so much of the Government lands taken for the purpose of the canal as was required for its construction and maintenance, and also a right to have the waters of the Sutlej admitted into the canal so long as the canal was used for the purpose for which it was originally designed. The principles applicable to such a case are nowhere stated more clearly than by Lord Kingsdown in his judgment in the case of Ramsden v. Dyson. The principles applicable to such a case are nowhere stated more clearly than by Lord Kingsdown in his judgment in the case of Ramsden v. Dyson. (L. R. 1 H. L. 129, 170.) "If a man," says his Lordship, " under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created and encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v. Mighell ((1811) 18 Ves. 328.), and, as I conceive, is open to no doubt." Now, taking all the circumstances into consideration, having regard to the permanent character of the proposed work, the indefinite amount of the probable expense of construction, and the fact that the Government encouraged the undertakers to acquire the necessary land where the line of the canal passed through property in private ownership, and also bearing in mind the view of the Government at the time, as appears from Government records, that the work might be constructed and maintained more economically by the Khans than by Govern- merit, and that it would be better to leave the settlement of the country in the hands of native chiefs, it seems to be pretty clear that the Government must have intended the Khans to understand, and in fact must have led them to expect, that all Government land required for the canal would be made over to them in proprietary right. If the Government had intended that at the termination of the period of the then current settlement the Government land required and used for the canal should revert to the Government, it is difficult to suppose that the Government would have omitted to say so in plain language, or that they would have neglected to make provision for securing the transfer to them of the land acquired by the undertakers from private owners. Upon the expiration of the period of the settlement for which the lease of the bar-barini lands had been granted to Mustapha Khan, the Government agreed to make a grant to Kadir Khan at a moderate assessment of a tract of land which was irrigated or capable of being irrigated by the canal, and at the same time, in the interest of the public, they stipulated for the right to intervene when necessary in the management and control of the canal. The sanad or deed by which this arrangement was carried out was dated March 20, 1886. It contains a grant to Kadir Khan, his heirs and assigns, for ever in full proprietary right, with retrospective effect from December 29, 1879, of a tract of 60,000 acres at a jama of Rs.15,000 per annum for the period Law. Rep. 28 Ind. App. 211 ( 1900- 1901) Ahmad Yar Khan V. Secretary of State for India in Council 102 of the current settlement. It also contains a grant of an jama of Rs.5000 a year for two lives out of the Government jama " in consideration of the general loyalty and good service to Government of the said grantee, and more especially in recognition of his energy and enterprise in digging the Hajiwah Canal." And then there is a provision in the following words — " 8. The canal dug by the grantee and known as the Hajiwah shall for the present remain under the management of the said grantee, provided always that in consideration of the premises the said grantor, his successors and assigns, shall at all times hereafter, whenever he or they shall think necessary, be entitled, without the consent of or permission from the said grantee, his heirs, legal representatives, and assigns, to take into his or their own hands and control the management and distribution of the water of the said canal without payment of any compensation whatsoever, and further to clear the said canal and recover the cost of clearance and management by a canal rate to be levied on the area irrigated." Assuming that at the date of the sanad Kadir Khan had a proprietary interest in the canal, as their Lordships are prepared to hold, the only remaining question is, What is the effect of clause 8 ? It seems to their Lordships that this clause means exactly what it says. It seems to their Lordships that this clause means exactly what it says. It does not give the Government a right to seize and confiscate the canal. It merely gives them the right from time to time, whenever they think it " necessary "—that is, necessary in the interest of the public—to take into their own hands the management and distribution of the waters of the canal, and to clear the canal and recover the cost in the manner provided by the sanad, and that " without payment of any compensation whatsoever." It is for the Government to determine when and under what circumstances it is necessary to take possession of the canal, and how long it may be necessary to withhold the control and management of the canal from its owners. The canal does not become theirs nor do they acquire any proprietary rights in it by assuming its management and control. They are not, however, in the opinion of their Lordships, in the position of receivers or managers or trustees for the owners, or accountable to the owners for profits. If the owners are aggrieved by the action of the Government in taking or keeping possession of the canal, it is a case for representation and remonstrance, not for the intervention of the Court. In the present case the Government, it seems, thought it necessary to assume possession and control of the canal in consequence of dissensions which arose on the death of Kadir Khan between the members of his family, and they are entitled to hold such possession and control so long as they think it necessary. The result, therefore, is that, in the opinion of their Lord- ships, the appellants are entitled to a declaration that, subject and without prejudice to the privilege conferred upon the Government by clause 8 of the sanad of March 20, 1886, they are entitled to a proprietary right in three fourth shares of the Hajiwah Canal. In other respects the suit fails. Their Lordships are of opinion that there ought to be no costs of the first, hearing, but that the first respondent ought to pay the costs of the appeal to the Chief Court of the Panjab. Their Lordships will humbly advise His Majesty accordingly. The first respondent will pay the costs of this appeal.