1. In these suits there were two questions between the landlord and his tenants which arose for determination viz., (1) whether the tenants should be made to pay rent on dry lands wilfully left waste ; (2) whether the tenants should be made liable to pay wet rents at the highest neighbouring waram rent, when dr,y crops are raised on wet lands when there is a sufficiency of water in the irrigation source for raising wet crops.
2. The District Judge has found both these points in favour of the tenants and has directed the proposed terms to be omitted from the pattas.
3. We are unable to support his judgment.
4. In cases where waste is due to the neglect of the ryots, this Court has held in Ramaswami Servaigaran v. Athivaraha-chariar 23 M.L.T. p. 183 and in Second Appeals Nos. 2052 to 2062 of 1917 that the landlord is entitled to claim rent for lands left uncultivated.
5. The respondents rely on the decision of a former District Judge in prior suits of 1897 which they claim to have the force of res judicata. But from a perusal of that judgment we find that in that litigation the defendants set up a custom to cultivate only in alternate years. The decision therefore on the issue in those suits whether rent should be paid for punjah lands when they are not cultivated was only a decision upon the liability of the tenants in the conditions then put forward, which did not cover the case of wilful waste or waste by default or negligence. It is not res judicata upon the question arising in these suits.
6. Upon the second point the ruling in Arunachalam Chettiar v. Mangalam, I.L.R.(1915) Mad. 640 and Second Appeals Nos. 2094, 2095 and 2097 of 1917 are clearly against the respondents, and we must follow them.
7. Accordingly we allow the appeals with costs throughout calculated on an aggregate fee of Rs. 20 per case in all the courts and allow the clauses to stand In the patta, with the modification that for the words 'wilfully left waste ' we direct the words ' left waste through the ryot's wilful neglect ' to be substituted, and for the words ' facility for raising wet crops ' we substitute the words ' sufficient water in the tanks for raising wet crops'
8. The memorandum of cross-objections is not pressed and is dismissed with costs.