1. These Second Appeals arise from suits brought by the plaintiff landholder under Section 77 of the Madras Estates Land Act for the rent of Fasli 1325 alleged to be due to him from his -permanent occupancy tenants, the defendants. He claims rent according to the waram system but the tenants plead that they are bound to pay only money rents as' fixed in their muchilikas Ex. O series. The lower Courts have decreed the landholder's claim as brought and hence these appeals by the tenants.
2. The main dispute between the parties centres round the first issue whether the tenure is rokkam or waram. The landholder is entitled to revert to the waram system unless the ryots establish that it has been superseded permanently by the cash system by contract, express or implied, between them and the landholder. See Ayyaperumal Odayan v. Ramaswami Chettiar (1915) 29 M.L.J. 362 and Muthiah Chettiar v. Periyan Kone 11 L.W. 311. Now in this case there is an express finding by the lower Courts that the waram system was the prevailing tenure in the Estate. It is however contended that this finding should not be accepted as it is based on recitals in pattas Exhibits A, C and E which as admissions in his own favour by the landholder cannot be relied on by him and on statements in muchilikas Exs. B, D and F which have not been proved. These muchilikas were taken to be more than 30 years old by the lower Courts and as coming from proper custody their proof was dispensed with. The lower Courts are shown to have gone wrong there, as the dates on the exhibits show that they were not really 30 years old when tendered in evidence. But apart from these documents there is evidence to show that the tenure was a waram tenure to start with and, that also being the presumption, evidence Is not necessary to prove it unless the presumption is rebutted, to do which the burden is on the ryot. In this case there is some evidence that for several years the ryots paid money rents but such payments were made under specific contracts 'in term pattas,' for stated periods and the rates varied from time to time. They only show the existence of special contracts remaining in force in particular years and no inference can be drawn from them that the waram system was permanently given up. The1, last of such contracts is evidenced By Ex. O series which provided for a money payment for 10 years from Faslis 1314 to 1323 ; by its own terms the contract came to an end in Fasli 1324 and from that Fasli the landholder was entitled to revert to the waram rates.
3. It is next argued that even assuming that the plaintiff was entitled to revert to waram rates he is nevertheless disentitled to enforce those rates in Fasli 1325 without properly tendering a waram patta in Fasli 1324 by reason of the provision in the latter part of Clause (3) of Section 52 of the Estates Land Act and such a tender has not been made out. Before dealing with the applicability of the section it may be stated that waram pattas were attempted to be tendered to the ryots by the plaintiff in Fasli 1324 in which year he distrained the crops for rent. But in the ryot's suit to set aside the distraint, it was held by the Courts that the tender was not proper as regards the present defendants and in consequence the distraints were set aside. That finding in Ex. X is clearly res judicata and the question cannot be re-agitated and we must take it that there was no proper tender of any patta in Fasli 1324.
4. The question then is whether the landholder is precluded from claiming waram rates in Fasli 1325. As already stated up to the end of Fasli 1323 money rents were paid by the ryots and the argument for them is that under the 1st part of Clause (3) of Section 52 that arrangement should be treated as remaining in force for subsequent years, and that to introduce a change the landholder was bound under the 2nd part to tender a new patta in the fasli prior to one in which he proposes to enforce the new terms. The lower appellate Court has held that Clause (3) does not apply to this case and we think that view is right. In the muchilika Ex. O series, there is a provision by which after the expiry of the period fixed under it the ryots undertake to cultivate the land under 'pathukattu muchilikas according to the Amani Rules.' These words have been understood by the lower Cfturts as meaning that the ryots would cultivate under the waram system. No doubt the learned District Judge seems to have erroneously thought that the word Varapathu was in the covenant but that mistake however does not affect the meaning he attributed to the clause. 'Amani system' has been treated as meaning waram system in our judgment in Muthiah Chettiar v. Periyan Kone (1920) 11 L.W. 311, and as regards this very estate by the District Munsif in his judgment Ex. W of 1887 when the landholder brought suits against the ryots to compel them to accept waram pattas. The lands are described in an earlier part of Ex. O series as 'Varapathu and Kaipathu' lands. That also supports the view taken by the lower appellate Court. The meaning of the covenant thus seems to be clear that the ryots agreed to revert to the waram system, after the period fixed in Ex. O series was over. It is therefore not necessary for the landholder to rely on the first part of Clause (3), Section 52 to regulate his relationship with his tenants for Fasli 1324 and thereafter, the contract in the muchilika itself regulating it. In fact in the face of that covenant the arrangement to pay money rent cannot be held to continue in force after Fasli 1323. The 2nd part is only a corrollary to the 1st part of Clause (3) and as the latter does not apply it must be held that the former also does not apply to this case. As tmdre the present Act, no prior tender or exchange of patta and muchilika is necessary to entitle a landholder to sue for rent, the present suit is clearly maintainable as brought and the plaintiff is entitled to the waram rates decreed to him.
5. The only other question argued is as regards the 2nd crop on these lands raised by the tenants with the aid of their own well water without taking the landholder's water. It is contended that the plaintiff is not entitled to waram on that crop under Section 13(3) of the Act. That provision does not seem to apply as it cannot be said that any higher rate of rent is being claimed on account of increased production in consequence of the tenants' improvement. Under the waram system the landholder is entitled to a share in all the produce of the land unless there is a special contract to the contrary exempting any particular crop. His claim to share in all the crops cannot be looked upon as an enhancement of rent. The lower appellate Court is therefore right in giving a share to the plaintiff in then 2nd crop also.
6. The Second Appeals thus substantially fail but the decrees of the lower appellate Court must be modified by striking out the declarations embodied in them and by confining them to decrees for rent as the suits are purely suits for rent. With this modification the Second Appeals are dismissed with costs. Vakil's fee Rs. 10 in each case.