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Sri Raja Bommadevara Chayadevamma Bahadur Zamindarini Garu Vs. Sana Venkataswamy and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1932Mad343; (1932)62MLJ511
AppellantSri Raja Bommadevara Chayadevamma Bahadur Zamindarini Garu
RespondentSana Venkataswamy and ors.
Cases ReferredVellayappa Chetty v. Subrmianiam Chettiar I.L.R.
Excerpt:
- - that being so, it is quite clear that in respect of those cocoanut plantations concerned in this group of suits which have been made after 1st july, 1908, the plaintiff's suits must fail. presumptions, as is well known, are of two kinds: as the learned district judge has pointed out, that is a piece of evidence distinctly against the theory that there was consideration for this supposed contract. the revenue officer who tried these suits as well as the learned district judge on appeal disallowed the claim of the landholder to charge the higher rate. i do not think that in the case of fruit trees like cocoanut, batavia oranges, and other trees which come to maturity 7, 10 or 15 years after they are planted, the word 'crop' as ordinarily understood by landlords and tenants could be.....reilly, j.1. this batch of appeals relates to suits for the acceptance of puttahs in a village to which the madras estates land act applies. the plaintiff, the proprietrix,. tendered certain puttahs to the ryots of the village. they objected to some of the terms, and she then launched these suits. the deputy collector, who tried the suits, found that the terms of the puttahs tendered were correct except in one respect, the exception being that a term was introduced in accordance with which the ryot would pay on dry land, if he grew cocoanuts on it, not the ordinary dry rate but a much enhanced rate, namely, rs. 125 a khathi, which is an area equal to about 17 acres. the deputy collector found that that term was not a proper one and struck it out of the draft puttahs, confirming the.....
Judgment:

Reilly, J.

1. This batch of appeals relates to suits for the acceptance of puttahs in a village to which the Madras Estates Land Act applies. The plaintiff, the proprietrix,. tendered certain puttahs to the ryots of the village. They objected to some of the terms, and she then launched these suits. The Deputy Collector, who tried the suits, found that the terms of the puttahs tendered were correct except in one respect, the exception being that a term was introduced in accordance with which the ryot would pay on dry land, if he grew cocoanuts on it, not the ordinary dry rate but a much enhanced rate, namely, Rs. 125 a khathi, which is an area equal to about 17 acres. The Deputy Collector found that that term was not a proper one and struck it out of the draft puttahs, confirming the puttahs in other respects. The plaintiff appealed to the District Court, and the learned District Judge dismissed her appeals. She then came to this Court on second appeal, and Devadoss, J., again dismissed her appeals. The present appeals are against the decisions of Devadoss, J.

2. It appears that some of the cocoanut plantations now in existence, to which the plaintiff wishes to apply this enhanced rate of rent, were planted after the Estates Land Act came into force. For those plantations by reason of Section 13(3) of the Estates Land Act she is not entitled to claim any enhanced rent, if the plantations are improvements within the meaning of the Act. Under the Act the planting of fruit trees is an improvement, where it materially adds to the value of the holding, is suited to the holding and is consistent with the character of the holding. There is no question in these cases that the planting of cocoanut trees in this village adds very greatly to the value of the holdings. That is no doubt why the plaintiff demands a higher rent for such holdings. There is no question that the planting is suitable to the land, which, we are told, is sandy land near the sea-coast, and it is obviously consistent with the holdings of the ryots. But it has been urged before us rather surprisingly as it appears to me, that the planting of cocoanut trees is not an improvement within the meaning of the Act because cocoanut trees are not fruit trees. Our attention has been drawn to a decision of two learned Judges of this Court in Vellayappa Chetty v. Subramaniam Chettiar I.L.R. (1926) SO M. 482 : 51 M.L.J. 880 a case under ' the Madras Estates Land Act--in which they held that cocoa-nut trees were not fruit trees. Of the two learned Judges Wallace, J., appears to have held so with some assurance, and Devadoss, J., with hesitation; but undoubtedly they came to the conclusion that cocoanut trees were not fruit trees. With the very greatest respect I find it impossible to agree with that decision. Devadoss, J., remarked that fruit trees mean trees producing edible fruit. For myself I should not be inclined to confine fruit trees to those trees alone which produce edible fruit. But, if that is the test, cocoanuts surely satisfy that test. All of us know that parts of cocoanuts are certainly edible. Now it is not for us to differ from the decision of another Bench when: the same point comes before us; but in this particular matter I feel at liberty to differ from the learned Judges in the case I have mentioned. Although that is the only case reported, so far as I know, where the question whether cocoanut trees are fruit trees within the meaning of the Estates Land Act is discussed, we are all aware that there have been hundreds of cases before this Court from another part of the Presidency, in which cocoa-nut trees have been invariably treated as fruit trees. Cocoanut trees are undoubtedly fruit trees for the purpose of the Malabar Compensation for Tenants' Improvements Act; and, though it is certainly not proper to use one Act directly for the purpose of interpreting another Act, for myself I see no reason why we should give different meanings to 'fruit trees' in the Malabar Compensation for Tenants' Improvements Act and in the Madras Estates Land Act, nor why we should regard a cocoanut tree on the west coast of this Presidency as a fruit tree and something other than a fruit tree on the east coast of this Presidency. With great respect I feel that we are at liberty, being fortified by very many decisions of this Court, too numerous to mention, to hold that a cocoanut tree is a fruit tree and that therefore the plantation of cocoanut trees in this village with which we are concerned is an improvement within the meaning of the Madras Estates Land Act. That being so, it is quite clear that in respect of those cocoanut plantations concerned in this group of suits which have been made after 1st July, 1908, the plaintiff's suits must fail.

3. But, although we are told, and the evidence shows, that the plantation of cocoanuts in this village has extended greatly in recent years, there was a large extent of such plantations before the Estates Land Act came into force; and to those plantations, made before 1st July, 1908, we cannot apply the same considerations. The evidence in this case shows that from 1881 onwards the proprietor of this village has taken muchilikas from the ryots which have contained a condition that, if they grow cocoanuts on the dry lands in their holdings, they will pay rent in accordance with the village rivaz or custom; and it has been found that, whenever ryots of the village since that time have planted cocoanuts on their dry land, they have not paid the dry rate on the land, but have paid approximately this very high rate which the plaintiff now claims. Mr. Venkataramana Rao, who appears for the plaintiff, has urged that on those findings of long-continued payment of an enhanced rate on dry lands used for the planting of cocoanuts and of the regular insertion in the muchilikas of the clause I have mentioned, we ought to presume that there was a contract between the ryots and the landholder, i.e., between the predecessors of the present ryots and the predecessors of the plaintiff, who only bought this village in 1915, that this high rate should be paid when cocoanuts are planted and that we ought to presume that that was a legally enforceable contract supported by consideration. That presumption he urges we ought to set up, and the Judges of fact, who have dealt with the case, ought to have set up, as a presumption of fact. For that he relies upon the opinions of a Full Bench of this Court in Periakaruppa Mukkandan v. Raja Rajeswara Sethupathi I.L.R. (1918) 42 M. 475 : 36 M.L.J. 320 where the majority of the Bench lay it down that a Court can presume a contract to pay a higher rate of rent than would otherwise be due and a legal origin and consideration therefor from long-continued payment of the higher rate in respect of a village to which this Act applies. And Mr. Venkataramana Rao has referred us to other cases where similar presumptions have been raised. Presumptions, as is well known, are of two kinds: presumptions of law and presumptions of fact, as they are called. Presumptions of law are true presumptions, presumptions sometimes rebut-table, sometimes irrebuttable, which Courts are bound by Statute and sometimes by other binding authority to set up, positions which they are bound to take up beforehand, a priori, before they ever consider the evidence in the case or the part of the case to which the presumptions apply. Those presumptions are correctly called presumptions, positions which we must take up beforehand. I think it is a little unfortunate that in our legal phraseology we also use the word 'presumptions' in what are spoken of as presumptions of fact. Presumptions of fact are not necessarily taken up at the beginning of the consideration of a case or of any particular part of it. They are really assumptions of fact which we may make at any stage of a case. They are assumptions of fact for which we do not ask any proof. Every hour of our life we are making such assumptions of fact in the course of our reasoning on all sorts of questions; we make them from our childhood to our death. Life would not be long enough for the ordinary affairs of business if we did not make such assumptions. Simple questions of fact which a Judge has to decide without the aid of such assumptions would take him months or years to dispose of. These presumptions or assumptions in a very large number of cases we make unconsciously or sub-consciously by an elliptical form of reasoning.

4. But they are always assumptions or inferences of fact, based upon our ideas and experience of the course of nature, the course of human business and the course of human conduct. They are the assumptions and unconscious inferences of a reasonable man. There is no special magic about such presumptions or assumptions of fact as they are used in Courts of law; and that makes it to my mind rather surprising that questions about such presumptions have on occasions been referred to Full Benches for statements of general opinion about them. For myself with very great respect I do not understand how the question in Periakaruppa Mukkandan v. Raja Rajeswara Sethupathi I.L.R. (1918) 42 M. 475 : 36 M.L.J. 320 ever came to be referred to a Full Bench. And no Full Bench, however numerous, however distinguished, can lay down by ruling that Courts shall make certain inferences or assumptions of fact in future cases. I think, if the opinions of the learned Judges in that case are read carefully, it will be seen that they were all embarrassed by the question which was put to them. But, though no Judge can lay down for another Judge of fact what inferences of fact he shall draw or what assumptions of fact he shall make on the way to those inferences, it is often of interest and instruction to observe how other Judges have made use of such assumptions. The most instructive part of the opinions in Periakaruppa Mukkandan v. Raja Rajeswara Sethupathi I.L.R. (1918) 42 M. 475 : 36 M.L.J. 320 is, I think, the insistance of every Judge forming that Bench that the presumptions of fact which they were discussing would always have to be considered, if they were to be made, in relation to the facts of the special case, as-disclosed in the evidence of that case, to which they might be applied; and that is really I think very near the heart of the matte?. My learned brother also laid stress upon that when discussing the question in Shivaramayya v. Rajah of Venkatagiri A.I.R. 1930 M. 339. A Judge may and must very often make use of such assumptions of fact; but he must not use them in isolation; he must not shut his eyes to the facts disclosed in the evidence in the case which he is trying. If a Judge is charging a Jury about the proper use to be made of such a presumption or assumption of fact, it is his duty to warn them that they must only make use of that presumption or assumption if they think it reasonable in all the circumstances of the case. And a Judge sitting alone as a Judge of fact must apply that direction to himself. Therefore it is of no use I think, for Mr. Venkataramana Rao to bombard us with decisions that presumptions or assumptions of fact of this sort; can be used in such a case as this. No one can question that. The important question is whether the assumption he asks us to make ought to have been made considering all the facts which are disclosed in this case, or perhaps more strictly whether the refusal of the Judges of fact in this case to set up that presumption, considering all the special facts of the case, is so obviously wrong or unreasonable that we ought to interfere with it or that Devadoss, J., ought to have interfered with it in second appeal.

5. Now what are the special facts which we know about this case? The ryots of the village, the evidence shows, have paid this specially high rate on dry land instead of ordinary dry rates on the land, if they have grown cocoanuts on that land, for 35 years before: the suits were brought, and for the same period they have all signed muchilikas agreeing to pay according to the village rivaz, if they should grow cocoanuts on this dry land. In some instances they have paid this high rate for more than 35 years because they have grown cocoanuts on their land for longer periods. In 1916 and 1917 some suits were brought by the late proprietor of this village against the ryots to enforce this high rate of rent, and he succeeded, the; suits being allowed to go ex parte. Ex. Y shows that much earlier than that, in 1893, this high rate was recovered in a contested suit; and in that case the District Munsif referred to the fact that the defendants had entered into an agreement to pay this high rate as long ago as 1863. Among the evidence three puttahs of 1868 have been produced (Exs. VIII, XXII and XXIII) in which this clause that the ryot will pay for cocoanut plantations at the customary village rate is entered. Those are all manuscript puttahs. In 1872, 1875, 1878 and 1879, we have instances of printed puttahs in which this clause about the payment of a higher rate according to the village custom when cocoanuts are grown is added in manuscript. These take the practice of demanding and paying this higher rate in certain instances much further back than 1881. But it is also to be noticed that in 1868 there was one puttah, Ex. III, in which nothing whatever was said about cocoanuts or paying any higher rate when they were grown. Now that certainly is evidence that there was some agreement between, the ryots concerned, and after 1881 apparently between the ryots of the village generally, and the proprietor to pay this largely enhanced rate when cocpanuts were grown on dry land. But that does not carry the plaintiff far enough. What the plaintiff has to prove is not only an agreement but a legally enforceable contract, an agreement supported by consideration. Mr. Venkataramana Rao for the plaintiff urges that we ought to assume, as the evidence takes us so far back, that the agreement between the ryots and the landholder was supported by-consideration. If we were quite certain that the two parties--the Zamindar or proprietor and the ryots--had been pegotiating on equal terms, at arm's length, I am not sure that the facts which I have mentioned might not properly lead us to infer that the agreement must have been, supported by some consideration. But I am also not sure that I should always be ready to make such an inference when the parties are the Zamindar or proprietor on the one side and the ryots of a. village on the other. I think it not improbable that, if a search were made through the records of this Court, it would be found that those judges who have had experience of the mofussil have been, the least ready to assume as a matter of course that Zamindars and proprietors on the one side and the ryots of a village on the other have negotiated on equal terms. But we need not go farther with such speculation as there are in this case other facts to be considered.

6. The plaintiff has not been able to assist us by suggesting what the consideration can have been for the agreement to pay this largely enhanced rent when cocoanuts are grown. Now that we are in this sphere of presumptions or assumptions of fact we must ask ourselves whether we can assume that there was consideration, not by a mere effort of the imagination, but taking properly into account the course of nature and human conduct. What can this consideration have been? What can we suppose it to have been? It is very difficult I think to imagine what it was. It was suggested at one stage that in this village rents were originally adjusted on the sharing system. It is very likely that that was so a great many years ago. Aad the suggestion was that, if rents were adjusted on the sharing system and afterwards that was changed to a money system, the proprietor might have agreed to that change on condition that, when any ryot planted cocoanuts and obtained such valuable produce from the land, he would then pay a higher moneyrent than he would otherwise pay. But the difficulty in this case is that there is no way on the evidence of relating any change from a sharing system to a moneyrent system with the origin of this agreement to pay a higher rate for cocoanuts, so far as we can see. The finding in this case--and it is supported by the evidence of two of the plaintiff's own witnesses, who have been karnams of the village--is that for dry land the system of money-rent has been in force for very many years, long before the earliest date to which the evidence regarding this agreement to pay higher rent for cocoanut plantations relates at all. So there is no ground, so far as the evidence goes, for supposing that there was any connection between the origin of this agreement to pay a higher rate for cocoanuts and the change from a sharing system to a money-rent system, so far as the dry lands of the village are concerned. Nor is there any evidence to show that any particular ryots among those who are defendants in this group of cases were admitted to their holdings after this practice of paying a higher rent for cocoanut plantations had come into force, so that it might be said that in their cases at any rate there were contracts with the landholder when they were admitted originally to their holdings to pay this rate. If that were so, it might be easy to infer that there was consideration in their cases. But the evidence as put before us is not to that effect. As I have mentioned, cocoanut: plantation has spread in the village gradually more and more as holders of dry land have planted their land or part of it with cocoanut trees. But it is not suggested that there have been successive contracts under which ryots have taken to cocoanut growing. What is suggested for the plaintiff is a contract made many years ago that they would hold their land on the ordinary dry rates with a proviso that, if they grew cocoanut trees at any future time, they would pay the higher rate, and it is for that supposed contract that we have to find by evidence or inference or assumption some consideration. If we had evidence that, when cocoanut trees were planted, during the years before they came to bearing, the proprietor did not claim any rent or claimed only a very much reduced rent, then we might find consideration for the agreement that he should receive a very much enhanced rent after the cocoanut trees came to bearing. There is no evidence of that in the present case. On the contrary there is evidence that the ryots have been required to pay during the years before the cocoanut trees have come to bearing the full dry rates upon their land, although for those years they were getting no profit from it at all. That is very much against the suggestion that there must have been consideration for this agreement. Then we have another piece of evidence. In several of the early puttahs, in which there is a reference to paying this high rate of rent for cocoanut plantations in accordance with the village custom, there is a provision that the ryot shall not plant cocoanut trees without the proprietor's permission, i.e., he is prohibited from doing so of his own free will. As the learned District Judge has pointed out, that is a piece of evidence distinctly against the theory that there was consideration for this supposed contract.

7. Now, as I have said, these appeals before us arise out of second appeals. It is not of immediate interest what inference from the facts either my learned brother or I might have drawn if we had been Judges of fact in the matter. What we have to consider is whether the finding of the two Judges of fact in this case and especially of the learned District Judge, who was the final Judge of fact, that there was no valid consideration for this alleged contract is. so unreasonable or so opposed to the evidence that we ought to upset it. I think after what I have said it; is clear1 that we could not properly come to any such conclusion.

8. In my opinion these appeals should be dismissed with costs (Advocate's fee Rs. 10 in each appeal in which vakalat or appearance has been filed).

Anantakrishna Aiyar, J.

9. I agree.

10. The plaintiff-landholder of Chinnagollapalem filed these summary suits to enforce the acceptance of puttahs and execution of muchilikas by the defendants who are the ryots of the said village. The main dispute between the parties turned on the question whether the landholder was entitled to claim a higher rate of rent when the ryots grow cocoanut trees on their holdings. The Revenue Officer who tried these suits as well as the learned District Judge on appeal disallowed the claim of the landholder to charge the higher rate. The second appeals preferred by her to this Court were dismissed by Mr. Justice; Devadoss. These Letters Patent Appeals have accordingly been preferred by the plaintiff against the decision of the learned Judge.

11. The case of the landholder is that a contract between the parties to pay the higher rate must be presumed, having regard to their conduct during the last about fifty years. At one stage it seems to have been suggested in the Lower Court that the claim was based on usage. When the defendants wanted to have more particulars about the nature of the claim put forward by the landholder, the landholder expressly stated that the claim was based on contract. When the arguments in these Letters

12. Patent Appeals began, the question arose whether having regard to the provisions of Section 13, Sub-section (3) of the Estates Land Act, the landholder would be entitled to claim the higher rate in respect of cocoanut trees planted after the Act came into force. The learned Advocate: for the landholder--the appellant before us--argued that that provision would not apply to these cases because, he urged, that the planting of cocoanut trees could not be said to be an 'improvement'--within the meaning of the Act, and consequently sub-clause (3) of Section 13 would not apply to the present case. In support of this argument the learned Advocate relied on the decision of this Court reported in Vellayappa Chetty v. Subramaniam Chettiar. I.L.R. (1926) 50 M. 482 : 51 M.L.J. 880. It is true that the learned Judges in that case have expressed the opinion that the planting of cocoanut trees is not 'an improvement' within, the meaning of the Estates Land Act. As that raised an important question, we were anxious to consider the matter carefully before giving a decision upon that point. I may state here that Mr. Justice Devadoss, who was a member of the Bench which decided the case reported in Vellayappa Chetty v. Subramaniam Chettiar I.L.R. (1926) 50 M. 482 : 51 M.L.J. 880. decided the second appeals from which these Letters Patent Appeals have been preferred. In his judgment in the present case this is what the learned Judge says at page 31 of the pleadings book:

I do not think that in the case of fruit trees like cocoanut, Batavia oranges, and other trees which come to maturity 7, 10 or 15 years after they are planted, the word 'crop' as ordinarily understood by landlords and tenants could be applied to such a plantation. The planting of cocoanut trees is an improvement within the meaning of the Act.

13. The learned Judge also treats the cocoanut trees as 'fruit trees' in the course of his judgment. I do not see from the report in Vellayappa Chetty v. Subramaniam Chettiar I.L.R (1926) 50 M. 482 : 51 M.L.J. 880. that the attention of the learned Judge was drawn to this decision in the present case when he was considering the case in Vellayappa Chetty v. Subramaniam Chettiar. I.L.R. (1926) 50 M. 482 : 51 M.L.J. 880. Ordinarily we should be inclined to follow the decision of a Bench of this Court; but on examining the judgment delivered by the learned Judges on that occasion we feel that the question has not been sufficiently discussed in that case. The decision was based on the definition of the word 'improvement' in Section 3, Clause (4) of the Act, under which improvement includes sub-clause (f) 'the planting of fruit trees and fruit gardens'. Reading the provisions of the Act, it is not clear that the fruit trees mentioned therein should necessarily be trees that yield fruits edible by human beings. It is known that there are trees which yield fruits which are eaten by cattle. I am in the first place not at all clear that the definition of the term 'improvement' in the Estates Land Act excludes trees the fruits of which are not edible by human beings. Even assuming for the purpose of argument that edibility by human beings is the test, I have no doubt that even that test is satisfied in the case of cocoanuts. Cocoanut trees are so very common in several parts of this Presidency that practically everybody knows about the use of the cocoanut trees and of fruits thereof; but it may be as well to refer to a few books in the circumstances. I find that in Dr. Maclean's 'Manual of the Administration of the Madras Presidency,' Vol. III, at pages 195 and 197, there is an interesting article on 'Cocoanut Trees'. At page 197, I find the following:

In its young and green state the cocoanut contains a clear albuminous fluid with a sweetish taste and a slight degree of astringency. But as the nut advances to its full maturity, the fluid disappears and the hollow is filled by the almondlike dried albumen which is the germinating organ. This pulp or kernel, when young, can be easily removed by a spoon. It is used greatly in curries or its milk is expressed from it.... The milk extracted by pressure from fresh kernel is used in curries and confectionary.

14. When tested by one's knowledge of what is going on in several parts of the Presidency, regarding the use made of cocoanuts in 'culinary preparations' (though the kernel is also occasionally eaten raw), one cannot at all say that the description in the above book errs on the side of exaggeration. As is well known, the tract along the west coast of this Presidency is very favourable to the growth of cocoanut trees; and the attention of earlier writers was naturally drawn to this subject. In the book entitled--'the Land of Permauls--or Cochin its Past and its Present', by Francis Day, printed in 1863, I find an interesting description of the cocoanut tree and its uses. At page 537 the following passages are quoted from 'Oriental Memoirs,' Vol. I, p. 12 by Forbes:

Of all the trees which Providence has bestowed on the Oriental world, the cocoanut tree most deserves attention. In this single production of nature, what blessings are conveyed to man It produces clusters of green fruit. The nuts contain a delicious milk and a kernel sweet as an almond; this when dried affords abundance of oil, and when it is expressed, the remains feed cattle, and poultry, and make a good manure.... The Asiatic celebrated, either in verse or prose, the three hundred and sixty uses to which the trunk, the branches, the leaves, the juice, and the fruit were skilfully applied. Many of the trees are not permitted to bear fruit but (are) made to yield a cool liquid called 'toddy', the palm wine of the poets.

15. In a book called 'Note Book of Agricultural facts and figures,' published in 1920 by Mr. R. Cecil Wood of the Madras Agricultural Department, there is the following observation at page 163. 'In the South the tapping of cocoanut trees is very common, but in the north it is entirely absent'. Even a casual observer of what happens in Hindu marriages and other festivities, and also in temple festivals, could not have failed to note the part played by cocoanut fruits in the same. It is remarked at page 197 of Maclean's Manual, Vol. III, that 'cocoanuts are hourly broken and offered to the native Deities'. (Though called cocoanuts, it is not denied that they are fruits, and Justice Devadoss in his judgment in the present case treats cocoanut trees as 'fruit' trees). I do not think it necessary in the circumstances to say more about the use made of cocoanuts in various parts of this Presidency. In the definition of the word 'improvement' in the Malabar Compensation for Tenants' Improvements Act, the words 'fruit trees' occur, and it has been held all along by the Courts that cocoanut trees are fruit trees, and compensation has been awarded all along on the footing that the planting of cocoanuts is an improvement. If cocoanut trees are 'fruit trees' in the western parts of this Presidency, there: is no reason why they should cease to be so in the other portions of the Presidency. It goes without saying that several owners of cocoanut plantations near habitations do often allow the use of the trees for tapping toddy, when it pays them more to do so. But that circumstance by itself would not be sufficient to justify us in saying that the cocoanut tree is not a fruit tree within the meaning of the Estates Land Act. That the, planting of cocoanut trees adds to the value of the holding is also clear from the conduct of the plaintiff in the present case, because she claims a higher rate of rent on the footing that the ryots make more money out of these trees. I would therefore respectfully dissent from the decision in Vellayappa Chetty v. Subrmianiam Chettiar I.L.R. (1926) 50 M. 482 : 51 M.L.J. 880. in this respect and hold that the planting of cocoanut trees comes within the definition of the term 'improvement' under the Madras Estates Land Act.

16. I do not propose to say much on the other question that was argued, viz., with reference to the landholder's right: to charge higher rate in respect of cocoanut trees planted prior to the Estates Land Act. The strongest point in favour of the plaintiff-landholder is that the ryots have been paying the increased rate for about 50 years. What is the exact weight to be attached to this circumstance would depend upon the question whether there are in the present case other circumstances which point the other way. I do not understand any reported decision to lay down broadly, that, even in the presence of other circumstances which may go against any presumptions that the Court would ordinarily be inclined to draw from the circumstance that the same state of things is shown to have continued for a long number of years, that the Court is bound to raise the presumption that there was a lawful origin for the same. As I have said, the questions whether a presumption should be raised in the circumstances, and whether such a presumption has been rebutted by the other circumstance in the case or not are matters pre-eminently within the cognizance of the Courts below which have to record findings of facts. In this particular case, I find there are some circumstances which prima facie would seem to point in the other direction. It is admitted on behalf of the plaintiff that Taram rates prevail in the village, and that the same have been fixed with reference to the quality of the soil. Prima facie, therefore, when a landholder claims rates-higher than the Taram rates, the onus is upon him to show how he is entitled to such higher rates. In these cases, there is the further circumstance that in some of the puttahs, the condition is inserted that without the sanction of the landholder the ryots are not entitled to plant cocoanut trees. If there be such a usage as is contended for, or as has been the plaintiff's case latterly if there was a contract between the parties, that the ryots would be entitled to plant cocoanut trees but should only pay a higher rate of Rs. 125 per khatti (about 17 acres) then, how could the landholder consistently with such a contract, stipulate in the puttahs that without the landholder's sanction the ryots should not plant cocoanut trees. Again, there is an admission by one of the plaintiff's witnesses that so long as the living memory of man goes, there has been no 'Assura' or sharing system prevailing in the suit village. There is also the evidence that the landholder is entitled to recover from the ryots the Taram rates (Taram dry rates) during the period between the planting of the cocoanut trees and their coming to bearing. If the contract was that the landholder should not have any rent at all in respect of the land on which the cocoanut trees are planted till the trees came to bearing, but that when the trees begin to yield fruits the landholder is to have a higher rate, one can understand the position; but that is not so here. It is also remarked by the learned District Judge that the rates charged were different in respect of different holdings relating to cocoanut trees. In short, various circumstances are mentioned in the judgment of the learned District Judge, which he was entitled to consider along with the other circumstance, viz., that the payment at higher rate has been made for 50 years. Sitting in second appeal, and having regard to the circumstances mentioned above, this does not. seem to be a case in which we would be entitled to ipterfere with the, finding arrived at by the Lower Appellate Court. I agree with my learned brother that these Letters Patent Appeals should be dismissed with costs, the pleader's fee in each appeal in which vakalat or appearance has been filed, being fixed at Rs. 10.


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