Judgement Appeal from a judgment and decree of the High Court (October 27, 1915), affirming a decree of the District Judge of Vizagapatam. The suit was brought by the respondent, the Maharaja of Bobbili, for the refund of Rs. 695 levied upon him in 1907 under the Madras Irrigation Cess Act (VII. of 1865, Madras), and paid under protest, and for a declaration that he was entitled to use the water for irrigation in the village of Narayanapuram free of the cess. The terms of Madras Act VII. of 1865 (amended by Madras Act V. of 1900), ss. 1 and 4, are set out in the judgment of their Lordships. The respondent in his plaint stated, inter alia, (a) that the channel was constructed upwards of a century ago by the then zamindar of Palkonda, a neighbouring zamindary now in the possession of Government; (b) that his, the respondents, lands had ever since been irrigated by water from the channel, and that he and his predecessors in title had from time to time repaired the channel and constructed sluices in it at their own expense ; and (c) that he was entitled to the irrigation of his lands from the channel free of charge as a riparian proprietor and by virtue of long user, custom, prescription, and easement, and according to an understanding and agree ment between his predecessors in title and the then zamindars of Palkonda and (since the Palkonda estate was forfeited and became the property of Government) between his predecessors in title and himself on the one hand and the Government on the other. By his written statement in answer the appellant stated, inter alia, that both the river and the channel were the absolute property of Government and were a Government source of irrigation; that there was no such understanding or agreement nor any such right, by user, custom, prescription, or easement as alleged ; and he claimed to be entitled to levy water rate under Madras Act VII. of 1865 upon all lands in the suit village found to be in excess of the permanent settlement wet area on which a second wet crop was now raised. Issues were settled and a considerable body of evidence was adduced. of 1865 upon all lands in the suit village found to be in excess of the permanent settlement wet area on which a second wet crop was now raised. Issues were settled and a considerable body of evidence was adduced. The District Judge was of opinion that it was unnecessary to come to a finding upon an issue whether the Suvarnamukhi River belonged to the Government, the only question being whether the Government was entitled to levy cess for water taken from the channel. As to the latter he found that it was constructed by the zamindar of Palkonda between 1690 and 1780, that the Government had succeeded to his rights by the forfeiture of the zamindari in 1833, and that it belonged to the Government. He said that the plaintiff could have no natural rights based upon riparian ownership, as the channel was an artificial one; and he found against the alleged custom. He found however (in a passage set out in the judgment of their Lordships (1)) that in 1814 the Palkonda zamindar admitted the right of the respondents r predecessor to irrigate his land from the channel through five sluices ; further that in 1865, 1901 and 1903 the Government had recognized the respondents right to irrigate his lands from the channel, had allowed him to construct masonry sluices at his own cost, and had made no improvement in the supply since the forfeiture in 1833 ; that no charge was made until the cess was levied in 1907. He did not think it necessary to decide whether an easement acquired by sixty years enjoyment against Government would operate as a bar to the imposition of a water cess under the Act because in his opinion there should be inferred from the facts a grant or agreement by the zamindar, and the Government could only succeed to the zamindars title to the channel subject to rights already acquired. The District Judge accordingly made a decree declaring that the plaintiff was " entitled to take and use the water of the channel flowing in the customary manner through the four sluices now existing within the limits of his village of Narayanapuram free of any charge for irrigating his jiroyiti lands in the said village," and ordering a return of the cess paid with interest. The appellant appealed to the High Court, and on December 19, 1912, that Court remanded the case to the trial Judge for findings upon issue two—namely, whether the Suvarnamukhi River belonged to Government; and the following further questions (Exhibit C, referred to in the passage mentioned, was a tak id, dated October 20, 1814, by which the raja of Palk onda gave directions for the repairs of the channel "on a large scale," the necessary materials to be produced by the rajas villages, and for the collections of mamuls in cash "from the peoples of the 11 villages attached to the said channel." The document set out the names of 11 villages, among which Narayanapuram was not mentioned, and gave a list of the maduyas and panathas in which list there appeared "Narayanapuram, 5.".) Whether the 160 acres in respect of which the Government claim the right to levy water cess were at the time of the permanent settlement taken into account as wet land for the purposes of the settlement. (2.) Whether subsequently to the permanent settlement there has been an engagement with the Government under which the plaintiff has become entitled to irrigation free of separate charge as regards these 160 acres. The District Judge found that the river belonged to Government, and upon the two further questions he found (1.) that the lands in question were not irrigated until after the permanent settlement; (2.) that after the permanent settlement there was an implied agreement by Government to supply the plaintiff with water from the channel as before the forfeiture of the Palkonda zamindari, and he further inferred that the Government engaged that this should be free of any separate charge. On these findings being returned to the High Court that Court (Sir Arnold White C. J. and Oldfield J.) delivered judgment upon the further findings above mentioned. Upon the second of those findings the Chief Justice held that even assuming that the Government was under an obligation to continue to supply water for the irrigation of the lands in question because the zamindar of Palkonda was under that obligation at the time when the zamindari was forfeited, it did not follow that the Government was not entitled to levy a tax for the use of the water. He therefore did not concur in the view that there had been an engagement with the Government within the meaning of the Act after the permanent settlement. He expressed some doubt as to the finding that the land was not irrigated from the channel at the date of the permanent settlement, but was not prepared to differ from the conclusion at which the trial Judge and Oldfield J. arrived. Oldfield J. held that even if there was a grant or undertaking regarding free irrigation by the Palkonda zamindars, no engagement by the Government could be inferred. On the second further finding after going into the evidence at length he held that the suit lands were not proved to have been irrigated at the date of the permanent settlement, and upheld that finding of the trial Judge. The appeal was then posted for further consideration of the question whether the river belonged to the Government, and was further heard upon that point by the then Chief Justice (Sir John Wallis) and Sashagiri Aiyer J. The learned judges held that as the banks and bed of the river did not belong to the Government until below the point at which the channel took off, the river was not a river belonging to the Government within the meaning of the Act. A decree was made dismissing the appeals. 1919. May 20, 22. Sir Erle Richards K. C., and Kenworthy Brown for the appellant. The water used for the irrigation of the respondents land was water from the channel, the ownership of which passed to the Government upon the forfeiture in 1833. The words "river, stream, hannel, tank, or work," in s. 1 of the Act are disjunctive. Unless, therefore, there was an engagement with Government within the proviso the cess was properly levied. The High Court having held that there was not an engagement should have allowed the appeal; as the channel belonged to the Government the ownership of the river was not material. It was rightly held that there was no engagement. An engagement within the proviso cannot arise out of user subsequent to the permanent settlement. That question was left open by the Board when in Kandukuri Balasurya Row v. Secretary of State jar India (( 1917) L. R. 44 I. A. 166.) it was held that an engagement arises out of the permanent settlement of lands then irrigated. An engagement within the proviso cannot arise out of user subsequent to the permanent settlement. That question was left open by the Board when in Kandukuri Balasurya Row v. Secretary of State jar India (( 1917) L. R. 44 I. A. 166.) it was held that an engagement arises out of the permanent settlement of lands then irrigated. To constitute an engagement there must be between the owners of the land and the Government some transaction from which an agreement can be implied. The imposition of a cess in this case was not in breach of any engagement with the Government at the time of the permanent settlement, and since that date there has been nothing of the nature of a bilateral transaction. The question upon the proviso is not one of proprietary right or of easement, but of a contractual right to have the water free of cess. The proviso does not purport to preserve all existing rights. Upjohn K.C., Sir William Garth K.C. and Parikh for the respondent were not called upon. July 11. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE, This is an appeal against a decree of the High Court of Madras, dated October 27, 1915, which affirmed a decree of the District Judge of Vizagapatam, dated December 9, 1909. The suit was brought by the Maharaja of Bobbili, the present respondent, for the refund of a sum levied under the Madras Irrigation Cess Act (VII. of 1865), and paid under protest, and for a declara tion that he was entitled to use the water from a certain channel for irrigation of the village of Narayanapuram, free of the cess. The respondent was the owner of a village called Narayanapuram, in the district of Vizagapatam. For upwards of a century the lands of this village have been irrigated by the water of the Suvarnamukhi River flowing through an artificial channel known as the Sakarapalli channel. The river runs through the respondents estate (amongst others), and its banks and bed in its course through that estate admittedly belong to him. The history of the facts may be stated in one or two sentences. The Suvarnamukhi River rises in zamindari land and flows through zamindari land up to the suit village of Narayanapuram. From this river a channel was constructed by a zamindar of Palkonda, no doubt for irrigation purposes. The history of the facts may be stated in one or two sentences. The Suvarnamukhi River rises in zamindari land and flows through zamindari land up to the suit village of Narayanapuram. From this river a channel was constructed by a zamindar of Palkonda, no doubt for irrigation purposes. Apparently in order to obtain a suitable flow, the river had to be tapped at a point considerably above the Palkonda lands, and the river being so tapped, the channel proceeded therefrom through the lands of, inter alios, the predecessor of the present Maharaja, who is the respondent. The trial Judge is of opinion that the channel was probably constructed somewhere between 1690 and 1780. The evidence is not clear as to the exact date at which certain sluices, four of which still remain, were constructed from the channel for the purpose of ij -gating the respondents lands. The Courts below have come to the conclusion that the irrigation of the village is not proved to have taken place prior to the permanent settlement of the year 1801, notwithstanding the fact that, as already stated, the trial Judge is of opinion that the channel itself was constructed many years earlier. It is unnecessary for the Board to enter upon the question whether a conclusion of this kind, which is more of the nature of a conjecture with regard to the probabilities of an obscure situation, could be classed as a concurrent finding of fact precluding a different finding here ; but their Lordships must not be held as acceding to the view that the absence of express notice in the permanent settlement record of the channel as a source of water supply warrants the conclusion that a supply from the channel, admittedly in existence then and for many years before, was not furnished to the respondents lands. As to the state of matters at the beginning of the nineteenth century, their Lordships agree with the view of the District Judge when he says * The plaintiff relies upon Exhibit C (See footnote supra, p. 304.) as showing that in 1814 the then zamindar admitted the right of plaintiffs predecessor to irrigate his lands from the channel through five panathas (sluices). There can be no doubt about this. This document was proved as Exhibit IV., in the connected suit O.S. No. 13 of 1906 on behalf of the defendant. There can be no doubt about this. This document was proved as Exhibit IV., in the connected suit O.S. No. 13 of 1906 on behalf of the defendant. Its existence was then probably not known to the plaintiff, as it was only produced for the first time at the hearing of O.S. No. 13 of 1006. It shows conclusively that while the Palkonda zamindars owned the channel, the plaintiffs right to irrigate his Narayanapuram lands through five panathas was admitted and recognized, and that no labour or contribution was provided by the village for repairing the channel. The oral evidence shows that the zamindar (plaintiff) is in fact only enjoying four panathas now.” Two outstanding facts accordingly appear with regard to the irrigation of this property—namely, that for over at least one hundred years it has been enjoyed as matter of right; secondly, that no pecuniary return was made therefor. In short, the case appears to be the simple one—namely, that, for land given as part of the channel artificially constructed for irrigation purposes, a right to draw off water as it passed was conferred upon the respondents predecessors and himself, and that that right has been enjoyed by them ever since. It is in these circumstances that the question arises whether the respondent is liable to pay an irrigation cess in virtue of the Madras Act No. VII. of 1865, as amended by Madras Act V. of 1900. No claim therefor in respect of these lands was made until the year 1907. Payment was made under protest, and the present suit to determine liability was instituted. The case depends upon the proper construction to be put upon the Act referred to. of 1865, as amended by Madras Act V. of 1900. No claim therefor in respect of these lands was made until the year 1907. Payment was made under protest, and the present suit to determine liability was instituted. The case depends upon the proper construction to be put upon the Act referred to. Its preamble is not without importance " Whereas in several districts of the Madras Presidency, large expenditure out of Government funds has been, and is still being, incurred in the construction and improvement of works of irrigation and drainage, to the great advantage of the country and of proprietors and tenants of land ; and whereas it is right and proper that a fit return should, in all cases alike, be made to Government on account of the increased profits derivable from lands irrigated by such works ; it is enacted as follows " So far as the preamble goes, the Act would not appear to be directed against lands such as those of the respondent; for it is admitted that no works or action of the Government have either created or increased the supply of water to his lands. It is nevertheless true, as was indicated by Lord Parker in his judgment in Kandnkuri Balasurya Row v. Secretary of State for India (L. R. 44 I. A. 166.), that s. 1 of the amending Act makes operative provisions somewhat in excess of the apparent ambit of the preamble. If so, the section must govern. It is in the following terms “Sections 1 and 4 of the Madras Act VII. of 1865 .... shall be read and construed us if at the time of the passing of the said Act there were and had been inserted in lieu of the said sections the following, viz. If so, the section must govern. It is in the following terms “Sections 1 and 4 of the Madras Act VII. of 1865 .... shall be read and construed us if at the time of the passing of the said Act there were and had been inserted in lieu of the said sections the following, viz. {a) Whenever water is supplied or used for purposes of irrigation from any river, stream, channel, tank or work belonging to, or constructed by, Government, and also (b) 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 collector, subject to the control of the Board of Revenue and of the Government, such irrigation is beneficial to, and sufficient for the requirements of, the crop on such land, it shall be lawful for the Government to levy at pleasure on the land so irrigated a separate cess for such water, 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. Provided that where a zamindar, or inamdar, or any other descrip tion of landholder not holding under 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..... " The respondents position is that of a zamindar not holding under "ryotwari settlement"; he is, therefore, a person directly pointed to by the proviso just cited, and in view of the history of the lands as already sketched, the question is at once raised as to whether this zamindar is " by virtue of engagements with the Government " entitled to irrigation free of separate charge. If he is, then no cess is leviable in respect thereof; nor would any cess have been leviable under the Act of 1865 as unamended; for by s. 4 of the Act of 1865 there was a similar proviso of exemption. The reason of such a proviso is not far to seek. If he is, then no cess is leviable in respect thereof; nor would any cess have been leviable under the Act of 1865 as unamended; for by s. 4 of the Act of 1865 there was a similar proviso of exemption. The reason of such a proviso is not far to seek. The Government was contemplating irrigation works, and along with these the financing of those operations ; and the preamble indicates not obscurely that the financing was to be met by way of a fit return to Government on account of the increased profits which would be derivable from lands irrigated by such Government works. If, however, in consequence of other arrangements, or, as s. 1 puts it, " engagements," the irrigation had been accomplished and financed apart from expenditure under the statute, then those lands should stand free from the statutory cess. The question accordingly in the present case is whether there are such "engagements with the Government." On this question there was a sharp division of opinion in the courts below, and it is necessary to state how it is that the Governments claim to be owner of the channel arises. In the year 1833 the Palkonda zamindar rebelled against the Government. His lands were in consequence forfeited to the Crown. As already stated, the artificial channel was at that time constructed and the irrigation as a system applicable to the lands of Bobbili was in full operation. No attempt was made by the Government of the day to change the footing upon which the irrigation rights were enjoyed, or to assert any right in the Crown as owner of the servient tenement of Palkonda which would lessen or interfere with the continued enjoyment of the easement by the respondents predecessors as of right and without exaction or charge. What was the nature of this right of easement? It was to receive and utilize for irrigation purposes from an artificial channel a supply of water. It is, of course, in accord with legal theory that such a right of easement is created by grant,, but it is also sound law that a grant of such a right is presumed from long possession, although the actual transaction of making such a grant cannot be discovered or proved. It is, of course, in accord with legal theory that such a right of easement is created by grant,, but it is also sound law that a grant of such a right is presumed from long possession, although the actual transaction of making such a grant cannot be discovered or proved. The present case is accordingly in no way singular in this respect that the acts of parties over a long course of years point to the enjoyment of an easement founded upon a grant by the owner of the servient to the owner of the dominant tenement. Upon the facts of the present case it appears to be clearly established that for about fifty years—namely, from 1814 till 1865, when the Act was passed—the owners of Palkonda and the zamindar of Bobbili stood in the position of having, the one a servient, and the other a dominant tenement, with the unchallenged enjoyment of the easement of water supply as stated. Had the question now in suit accordingly arisen in the year 1864, there seems little reason to doubt that the right of the respondent would have been settled upon that footing. But the matter does not end there. The Act of 1865 was passed, and for forty-two years the same state of matters was continued. Had this suit been raised in the year 1866 instead of 1907, a serious question would still even then have arisen— namely, whether the words in the section "engagements with the Government" did not require a construction inclusive of engagements with the Government or its predecessors in title, as only by such a construction could justice be done to the manifest intention to reserve as against water-cess those who had already been furnished with their own water supply. The position is strengthened by the further lapse of time and, in their Lordships view, the Government must stand committed to the transactions which they have accepted as binding parties for a period of between eighty and ninety years, during which (including forty years since the Act was passed) the zamindari of Bobbili has been enjoyed without any question that the zamindar held under a tenure which gave him the benefit of the proviso in the statute. This view is in no way in conflict with the view of Lord Parker in the case referred to. This view is in no way in conflict with the view of Lord Parker in the case referred to. On the contrary, it appears to be supported by certain passages in that judgment. His Lordship refers (L. R. 44 I.A. 166, 174.) to the permanent settlement in the Madras Presidency under which the Government granted to the zamindars "a permanent property in their land for all time to come, and would fix for ever a moderate assessment of public revenue on such lands the amount of which should never be liable to be increased under any circumstances"; and he adds "Under these circumstances the Government could not impose a cess for the use of water the right to use which was appurtenant to the land in respect of which the jamma was payable without in fact, if not in name, increasing the amount of such jamma, and thus, committing a breach of the obligation undertaken at the time of the permanent settlement." With regard to the actual question in the present case, judgment was expressly reserved. Referring to the difficulties which arise in the construction of the Act, and the fact that the levy is made on the basis of the area irrigated, irrespective of profits, Lord Parker said (L. R. 44 I. A. 166, 172. 173.) "If in order to avoid this result reliance were placed on the first proviso, the question would arise whether it were possible to imply some engagement with the Government arising out of the natural or prescriptive right of the riparian owner." That question so reserved is the point now in issue. In their Lordships opinion such an engagement should be implied in the circumstances already set out. The predecessors of the respondent were using the water as of right when the servient zamindari was forfeited to the Crown in 1833; with the owners of that zamindari they had, to use the general term employed in the statute, a good u engagement "; in taking the servient estate, this engagement accompanied the transaction, and the engagement was thereafter with the Crown. In short, the forfeiture could not operate against a dominant and unforfeited zamindari. In short, the forfeiture could not operate against a dominant and unforfeited zamindari. With acquisition by forfeiture the Crown became bound to take the forfeited estate tantum et tale as it stood in the subject who had rebelled, that is to say, to respect the rights and in particular the easements enjoyed by others. Otherwise the scope of the forfeiture would be extended; pro tanto it would fall upon innocent and loyal subjects. This is sufficient for disposal of the appeal. The case was unfortunately much delayed owing to various causes not sufficiently explained. Time also was occupied by a remit for inquiries in regard to the ownership of the river itself from which the water was drawn by the channel. While their Lordships do not differ from the conclusion upon that topic arrived at by the High Court they are of opinion that the case should be determined on the simpler ground above stated. In their Lordships opinion the Crown has failed to establish the liability of the respondent. Their Lordships will humbly advise His Majesty that the appeal be dismissed with costs.