1. The District Judge has held that the case did not come within the ruling in Venkatagopal v. Rangappa I.L.R. 7 Mad. 365, because, although the rents have always been paid in money, there has been a variation in the amount of the money paid.
2. It is argued, however, that there has, in fact, been no variation in this respect, inasmuch as the increases of payment arose from an increase in the extent of lands occupied, and that a decision on this question which was, it is said,-raised in the third issue was essential to a determination of whether there had been an implied contract to pay rent in money only. The question of the circumstances attending the variation has certainly not been gone into in either Court, and, if we considered it necessary, we should direct the question to be tried.
3. It appears to us, however, not necessary to test this point by a re-trial. In a recent set of cases, which came before this Bench from Ganjam--see Nilakanta v. Mahadevi Second Appeal No. 508 of 1889, in which the learned Juges said: 'Both the courts have found that rents had been paid in morey for a period of about 50 years. The District Judge has, hawerver, come to the conclausion that the case is not governed by the decision in Venkatagopal v. Rangappa I.L.R. 7 Mad. 365, because the rent is not shown to have been an invariable one. The variation, however, has been a variation in the amount of the rent and not a variation in the from of the rent, for, as already stated, the finding is that the rent has for about 50 years been paid in money along. We thank, therefore, the case is governed by the decision in Venkatagopal v. Ramgappa I.L.R. 7 Mad. 363.' The question in this case as to the from of the rent, that is to say, whether the rent should be paid in more or in grain.--we held that where the contest was only as between a varam and money patta, and where payment had all along for a period of over 50 years been shown to have been made in one form only, viz., money, a variation in the amount of money paid did not affect the inference that there was an implied contract to receive rent in the form of money, and that that case did come within the decision in Venkatagopal v. Rangappa I.L.R. 7 Mad. 365.
4. The circumstances of the present case vary very slightly from those of the cases just referred to. In the present case there has, all along, that is, since 1849, been a payment, it is found in the form of money only.
5. It is sought, however, to distinguish the present case by the circumstance that the tenancy now in question originated in an express written contract, viz., the cowle of 1849, and, it is argued that this being so, it is not open to the Court to infer an implied contract from the act of the parties. As to this, in the first place, it is not shown that the tenancy did in fact originate only with the cowle of 1849. The defendants, in their written statement, claim to be permanent sukavasi tenants, and the District Munsif has found that they were such. No contest was expressly raised in the matter, which was apparently. passed over to some extent in the District Munsif s Court, and entirely in the Lower Appellate Court. In the second place, granting that the tenancy originated in an express written contract, such contract enured only for 11 years, and the parties have, since 1860, been holding without at least an express written contract. During that period, i.e., for 24 years, there can be no dispute that rent has always been paid in money.
6. In these circumstances, we think, the case clearly does fall within the principle of the decision in Venkatagopal v. Rangappa I.L.R. 7 Mad. 365), and that a contract to receive rent in money only must be inferred. In the circumstances of this case, the landlord having come into Court to enforce an acceptance of a particular kind of patta, viz., a varam patta, no further question is outstanding as to the propriety or non-propriety of the patta, and it is, therefore, unnecessary to direct an inquiry as to what would be a proper patta.
5. On this view we allow the appeal, and, reversing the decrees of the Lower Courts, we dismiss the original suit with costs throughout.