1. The appellant-Mutt filed against the respondent Original Suit No. 193 of 1956 on the file of the District Munsiff at Mangalore for recovery of arrears of mulgeni rent for 5 years claimed as due from the respondent at the rate of 19 muras of Kuchige rice plus enhanced assessment and half the cess payable in respect of the holding. The mulgeni is an ancient one, the original document in respect of which is not available. The respondent contended that though originally the rent stipulated was 19 muras of rice, it had been long ago, during the life time of his grandfather Venkappiah, permanently commuted into cash rent of Rs. 28-8-0 per year. He accepted his liability to pay enhanced assessment and half the cess, although before the institution of the suit he appears to have disputed his liability in respect of the latter. He also denied the plaintiff's right to recover interest on the ground that the plaintiff had unlawfully refused to receive rent tendered by him at the above commuted rate He deposited into Court the admitted amount due by him which was later paid over to the plaintiffs Advocate.
2. The trial Court accepted all the contentions of the defendant, dismissed the suit with costs and also directed the plaintiff to pay a sum of Rs. 50 to the defendant by way of compensatory costs in addition to the ordinary costs of suit.
3. The plaintiffs appeal No. 140 of 1957 before the subordinate judge's Court at South Kanara having been dismissed, it has presented this Second Appeal.
4. The parties did not adduce oral evidence but preferred to rest their case on the documents produced by them.
5. The defendant produced 15 documents. The earliest of them is Ex. B-1 said to be a Yadast granted by the plaintiff Mutt to the respondent's grandfather Venkappiah, in which it is noted that the original rental of 19 muras of rice per year may thereafter he paid permanently at the rate of Rs. 28-8-0 per year. Exs. B-2 and B-3 are receipts for mulgeni rent. Ex. B-4 is a book containing such receipts, and Ex. B-5 a file of such receipts. All these receipts prove payments of rent at the rate of Rs. 28-8-0 per year. Ex. B-6 is a notice issued by the plaintiff-Mutt to the defendant's father Naranappiah on 11-7-1906 claiming rent at the original rate of 19 muras of rice. Ex. B-7 is Naranappaiah's reply asserting his right to pay rent in cash at Rs. 28-8-0 only per year. Exs. B-10, B-11 and B-12 are papers relating to a previous litigation between the parties in Small Cause No. 76 of 1934 on the file of the Subordinate Judge's Court, Mangalore, culminating in an order of the Madras High Court in Civil Revision petition No. 1441 of 1937, in which the present contention of the defendant that the original rent of 19 muras of rice per year has been permanently commuted into cash rent of Rs. 28-8-0 was upheld. Exs. B-13 to B-15 relate to a subsequent Small Cause suit No. 809 of 1941 on the file of the District Munsiff at Mangalore. In the plaint Ex. B-13 filed in that suit it was expressly stated as follows:.
'The rental payable in respect of the said holding was originally 19 muras of rice per year payable by the 30th of Phalguna every year but the plaintiffs mutt having received a cash rental of Rs. 28-8-0 per year instead of the rent in kind for many years past, the High Court has decided in C. R. P. No. 1441 of 1937 that there has been a permanent commutation of the old rent in kind into cash rent and that the plaintiff can claim only the cash rental of Rs. 28-8-0 per year as equivalent of the rent in kind.'
6. As against these documents the only document produced by the plaintiff-appellant was a certified copy of the order of the Revenue Divisional Officer of Mangalore in Mulgeni cast No. 61 of 1936 instituted in the light of the Mulgeni Rent Enhancement Act of Madras. He relies on the statement contained in the said order to the effect that the mulgeni rent was 19 muras of rice per year.
7. There is not and cannot be any dispute by the plaintiff about the facts stated above, because the said facts are established not only by the decisions of Courts in prior litigation but also by the receipts issued by the plaintiff-Mutt itself, not to mention the express admission or acceptance of the position by the plaintiff in the extract from Ex. B-13 given above.
8. The said facts clearly establish that for many years the rent was being paid in cash at the rate of Rs. 28-8-0 per year, and that every time the plaintiff-Mutt claimed payment in kind according to what is said to be the originally stipulated rate of rent, it had failed to substantiate that claim or have that claim accepted by the Courts. It is no doubt true that the present suit being an original suit, the decrees in previous small cause suits do not operate as res judicata. I do not, however, think that the appellant can say that the Courts below have erred in attaching value to the decision of the Madras High Court in Civil Revision petition No. 1441 of 1937 as containing an authoritative statement of the legal effect of the proved facts. I cannot also agree that reference to the rent in kind in Ex. A-1, the only document produced by plaintiff, is of any such value as to take away the effect of years of proved conduct on the part of the plaintiff-Mutt in relation to this lease
9. The lower appellate Court has applied the principle stated by a Full Bench of the Madras High Court in the case reported in Venkatagopal v. Rangappa, (1884) ILR 7 Mad 365(FB), viz, that payment of rent in a certain Form for a number of years is not only presumptive evidence of the existence of a contract to pay rent in that form or at that rate but is also presumptive evidence that the Parties have agreed that it is obligatory on the one party to pay and the other party to receive rent in that form and at that rate so long as the relation of landlord and tenant may continue.
10. The only argument on behalf of the appellant-Mutt before me on the merits of the case is that Ex. B-1 ought not to have been admitted in evidence for want of registration, that is no proof whatever of the same having been executed either by the previous Matadhipathi or by somebody authorised by him in that behalf and that at any rate, the said document by itself is insufficient to make out that the plaintiff-Mutt has for all times given up the right to claim the original rent of 19 muras of rice per year. The document is said to be of the year Vibnava. It may be, as pointed out by the learned counsel for the appellant, that the reasoning of the lower appellate Court that the Said Vibhava year need not necessarily be A.D. 1868-69 but the Vibhava year 1808-09 is weak. It may also be that having regard to the fact that according to the defendant Ex. B-l was issued to the defendant's grandfather Venkappaiah, the probabilities are that the Vibhava year mentioned therein might be 1888-69 by which time the Registration Act had been brought into force
But I do not think the plaintiff's case that the said document is a compulsorily registrable one is readily acceptable or is entirely free from doubt. It is called a Yadast or a memorandum. It may well be regarded as a mere record of a completed agreement and not necessarily t document which by itself creates, declares or extinguishes any right in immoveable property. Even if we exclude Ex. B-1. from consideration, the other indisputable documents produced by the defendant are sufficient to show that for many years during the time of more Matadhipathies than one rent was being received at the rate of 28-8-0 per year and that the Mutt had failed to establish in Courts of law its claim to collect rent at 19 muras of rice per year instead of at the rate of Rs. 28-8-0 per year. If so it cannot be said that the principle stated by Full Bench of Madras High Court in the case cited above cannot be invoked or has been wrongly applied to the facts of this case by the lower appellate Court.
11. The concurrent opinion of the Courts below on the merits of the case therefore cannot be said to be wrong in law.
12. The next question argued is whether the Munsiff was right in directing the plaintiff to pay compensatory costs to the defendant.
13. While setting out his reasons for the order to pay compensatory costs, after stating the plaintiff had in fact accepted the position as claimed by the defendant (apparently in Ex. B-13) and that the plaintiff has nevertheless filed this suit knowing that it was not entitled to make the claim, the Munsiff observes -
'I therefore feel that some compensatory costs should be awarded as against the plaintiff so that religious institutions like the plaintiff Mutt may not indulge in such litigation hereafter.'
The lower appellate Court agreed with this reasoning although it did not expressly endorse the opinion of the Munsiff in the above sentence extracted from his judgment.
14. Under Section 35-A the Code of Civil Procedure, compensatory costs are to be awarded if the Court finds the claim or defence to be false or vexatious, and they are intended to be compensation for the successful party and not either a punishment for the unsuccessful party or a deterrent against future litigation
15. Neither the Munsiff nor the Sub-ordinate Judge finds that there are any statements of facts in the plaint which are false. So far as the legal contentions are concerned, both the Courts agree that the previous decisions of Courts having been rendered in Small Cause suits do not operate as res judicata in this suit which is an original suit. Hence the legal position has had to be considered on merits. Although the original lease deed is not available. both sides admit that the original rent stipulated was 19 muras of rice and that it was at some stage commuted into cash rent of Rs. 28-8-0 per year. Exhibit B-1 which is relied upon as constituting the basis for the case of permanent commutation is not in actual event by itself decisive on the question. What is really decisive is the long course of conduct. When therefore the law itself precludes the defendant from relying upon the previous decisions as constituting res judicata and the point of law, which therefore has to be decided upon merits, cannot be laid to be wholly unarguable, I do not think it is possible in the circumstances of this case to say that the suit is vexatious within themeaning of section 35-A. As pointed out by the learned Counsel for the appellant before me, there is no clear proof of what the consideration for the commutation might have been. It may well be that there might not have been any consideration other than kindness on the part of Matadhipathies of former times towards the ancestors of the defendant who were admittedly the disciples of the Mutt. There is also no doubt that the commutation rate of Rs. 1-8-0 per mura of rice is a small fraction of the market rate of rice ruling during the suit years, which circumstance is of considerable advantage to the defendant. He cannot therefore with any show of justice demand that he stands in need of any compensation beyond or in addition to the ordinary costs of suit which are decreed to him.
16. For these reasons, the Munsiff, while ordering payment of compensatory costs must be held to have exercised his discretion on wrong principles or without due regard to the correct principles laid down by Section 35-A of the Code of Civil Procedure.
17. I therefore set aside the direction in the decree of the trial Court for payment of compensatory costs of Rs. 50 by the plaintiff to the defendant. In other respects, the decrees of the lower Courts are confirmed and this Second Appeal dismissed without costs.
18. Appeal dismissed.