Sadasiva Aiyar, J.
1. One question is common to all these cases, namely, whether the defendant company the proprietor of the Kannivadi Zamindari is entitled in the pattahs issued to its tenants to insert a term which makes the tenants liable to pay what is called in the pattahs ' penal assessment ' for a second crop raised on wet lands with the help of waters from an irrigation. source belonging to the Zamindari. I may at once state that such a vaguely worded obligation to charge what is called ' penal assessment ' with-out mentioning the rate of assessment charged ought not to be allowed to be inserted in the pattah. But I take it that the landlord charged one half of the usual wet rate of assess-ment for water taken for second crop and attached the crops for the recovery of that amount along with the usual amount charged as wet rate for a single crop.
2. The question is whether the company is entitled to so charge for the second crop. Having regard to the decisions in Vythinatha Sastrial v. Sami Pandithar I.L.R.(1881) Mad. 116. Thayammall v. Muthia I.L.R. (1887) Mad. 282 and Venkata Rao v. Vaithilinga Udayan (1901) 12 M.L.J. 22 . I think the landlord is prima facie entitled to claim such an additional rent provided it is not against any established custom of the estate or express or implied contract between the parties. I think it follows from the principles laid down in those cases that the burden of proving that there is such an established usage or implied or express contract lies upon the tenants. There is evidence in these. cases to show that there was no such established usage or express or implied contract till about fasli 1252 as I find that the Government when it was in management of the Zamindari between faslies 1226 and 1252 charged extra assessment for Kodai crops in several of those faslis. Kodai crop, according to Nelson's Madura District Manual, (see Glossary at the end of the book) means 'extra crop of rice raised either before or after the principal or kalam.'
3. According to Winslow's dictionary, Kodaibhogam (sic) means 'the crop grown in the hot season; the produce of cultivation in the hot season.' It is also admitted that, for betel and other crops which can be raised only with the use of an extra quantity of water, such excess assessment has been levied and paid all along, even after Fasli 1252. The learned District Judge has approached this question of the right of the Zamindar from a wrong point of view as he says in paragraph 8 of his judgment (in the case against which Second Appeal No. 514 of 1919 has been brought) as follows: ' As the custom of levying such a rate is not established though there is a custom to levy extra for betel etc., I think I must hold that the land-lord had not the right to enter the clause as to second crop in the pattah.' Thus he throws the burden of proving a custom to levy second crop assessment on the land-lord though in the previous paragraph (7) the Judge admits that such a levy is a reasonable and proper demand on the ryots. No doubt, if the plaintiff proves that to the knowledge of the landlord he has been raising second crops on his wet land for 5o or 60 years and has not been charged additional assessment, it may be some evidence that a usage has sprung up afterwards, after about Fasli 1252, by which such extra assessment was not to be levied for second crop though it may be levied for betel and etc., crops. Even then it would not be evidence of a very strong character as it is negative evidence. But still the Court might be entitled to consider it for arriving at its conclusion on the question whether such a custom not to charge has been established. But, as I said, the District Judge has not considered the evidence in that aspect. He has assumed that it was for the defendant to establish that a custom to charge second crop assessment for paddy raised as a second crop, prevailed. I would therefore remand all these cases for a finding on the question whether by usage or implied contract, the land-lord is not entitled to charge extra assessment on a second crop of paddy raised with the Zemindar's water by the tenant on the tenant's wet holding.
4. Then there are 9 suits (out of which S.A. Nos. 817 to 825 have arisen) which were dismissed by the learned District Judge on the ground that the plaintiffs in those suits were not registered pattadars and have not established that they are the heirs of the registered pattadars.
5. As regards one of them, that is, the suit out of which the Second Appeal No. 817 of 1919 has arisen, the landholder states in the first paragraph of the written statement that the 1st plaintiff's father was the person who took water from the defendant's irrigation source for his second wet or kodai crop. That first paragraph seems to assume that the 1st plaintiff's father was the registered pattadar. Though the landlord under Section 146 of the Madras Estates Land Act is not bound to recognise a transfer by the act of the ryot or even in execution of a Civil Court's decree or by act of a public officer exercising statutory powers of sale unless both the transferor and transferee give notice to him in writing or the decree or order of the Civil Court establishing the transfer or the sale certificate of a public officer evidencing that transfer is produced, so far as transfer to the Heir from the registered pattadar. by operation of law, is concerned, there is nothing in the Act which absolves the Zamindar from the duty of recognising such a transferee as the ryot who holds the land under the landlord in succession to the deceased ryot.
6. If, therefore, any tenant plaintiff in any of these suits con-tends that he is the heir of the registered pattadar the question whether he is such an heir ought to be gone into by the Lower Appellate Court, and if that is established or admitted, the suit must be held to be competent, brought by a ryot entitled to be recognised as such for the purpose of proceedings taken under the Estates Land Act.
7. It has been contended by Mr. Devadoss that the land-lord has received rent in previous faslies from these plaintiffs. The mere receipt of rent due upon the holding from any person cannot bind the landholder, to recognise that person as the 'ryot ' holding under him as that person might be merely the agent or servant of the ryot unless the person paying the rent has been recognised by the landlord as ryot by the acceptance of muchilikas from him, he is not (though he claims to be a transferee from the registered ryot) entitled to bring a suit under Section 112 of the Madras Estates Land Act for setting aside attachments as he cannot be a 'defaulter' under the Act, that is, a person who owes 'rent' and who has made 'default.'. A clear distinction is made in Sections roi, 128, 129 and 131, between the person who is strictly the 'defaulter' and those who, without being defaulters may, as mere 'cultivators' or even 'owners' or 'sub-tenants' having interests in the holding, be entitled to pay the money due by the defaulter so as to protect their interests. On the analogy of the decision, in Suiramania Chetty v. Mahalinga Swami Sivan (1909) 19 M.L.J. 627 (though it was decided with reference to the case of defaults of Government revenue under Madras Act II of 1864), I hold that the expression ' defaulter' in the Estates Land Act, denotes only the man who is the registered pattadar or the heir of the registered pattadar or the person whom the land-holder has become bound to recognise by reason of the provisions of Section 146. With these observations these cases also are remanded for findings on the following points :-Whether the plaintiffs in these suits are registered pattadars or heirs of the registered pattadars or persons whom the land-holder is bound under Section 146 to recognise as ryots of the holdings in question.
8. Further evidence may be adduced on both sides on the points on which the findings are required. Time for sub-mission of findings will be till the day of the re-opening of this Court after the summer vacation. The Lower Appellate Court is expected not to apply for further time as a sufficiently long period has been allowed above for the submission of the findings. Ten days will be allowed for filing objections.
9. I agree.
10. [In compliance with the order contained in the above Judgment, the District Judge of Madura, submitted a finding to the effect that no usage or contract had been proved disentitling the landlord from charging extra assessment on a second crop of paddy raised with the Zemindar's water by the tenants on their wet holdings. The District Judge also found that the plaintiffs in S.A. Nos. 817 to 819 and 823 were the heirs of the registered pattadars and that the plaintiffs in S.A. Nos. 820 to 822, 824 and 825 were neither the registered pattadars nor persons whom the landholder was bound under Section 146 of the Madras Estates Land Act to recognise as ryots of the holdings in question.]
11. The Court (The Chief Justice and Mr. Justice Sadasiva Aiyar) delivered the following.
12. we accept the finding and allow Appeals Nos. 514 to 560 and 562 to 564 of 1919. In Second Appeals Nos. 514 to 556 of 1919, we dismiss the suits with costs, throughout, and in Second Appeals Nos. 557 to 560 and 562 to 564 of 1919, we modify the decree of the Lower Appellate Court, by restoring the clause in the original patta as to second crop.
13. The respondents to pay the appellant's costs.
14. In Second Appeals Nos. 817 to 825 of 1919, we dismiss the second appeals with costs. We allow a fee of Rs. 5-0-0 in each of the 59 cases.