Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a suit filed before the Deputy Collector, Cocanada, under Section 77 of the Madras Estates Land Act, 1908, by the Maharajah of Pithapuram, to recover from the appellant and 5 other tenants an aggregate sum of Rs. 11-1-4 for water taken by them without his permission from his tank for the purpose of raising wet crops on dry lands in Faslis 1336, 1337 and 1338. Paragraph 5 of the plaint, which is in Telugu, has been translated as follows:
The defendants have no right whatever to use the said water for the jirayati dry lands in the aforesaid manner. As the defendants used the said water unjustly the amount of Rs. 9-15-7 as per particulars hereunder towards tirva and cesses thereon, with interest (was due) and in spite of several demands by the plaintiff's officials, both oral and written, the defendants did not pay as mentioned above.
2. The difference between this sum of Rs. 9-15-7 and Rs. 11-1-4 represents the claim for interest. The main lines of defence were: (1) the Revenue Court had no jurisdiction to entertain the suit as it was a suit in tort; (2) even if it could be treated as a suit for rent it could not be maintained as it amounted to a claim for enhanced rent contrary to the provisions of the Act; and (3) the terms of the patta precluded the plaintiff seeking extra rent. The appellant denied that the water belonged to the plaintiff and alleged that he had used it for only one Fasli (1338), and then not on drylands. The Deputy Collector dismissed the suit holding that the water belonged to the defendants and that the terms of the patta precluded the plaintiff from claiming any enhanced rent. An appeal followed to the District Judge of East Godavari, who held that the tank did belong to the plaintiff and that water had been used for the three Faslis mentioned in the plaint on dry lands belonging to the defendants. With regard to the pleas that the Revenue Court had no jurisdiction and that the suit as framed was bad he held that the Civil Court had no jurisdiction and that the plaintiff was entitled to recover. He disallowed the claim that the terms of the patta precluded any enhancement of rent. The findings of facts of the District Judge are conclusive and, therefore, before us the appeal has been confined to the three main questions. The appellant was the sixth defendant and he alone has appealed.
3. With regard to the contention that the suit is in reality a suit to recover damages for tort, it should be borne in mind that it was instituted under the provisions of Section 77 of the Act which relates only to the recovery of arrears of rent. Section 3(11) defines 'rent' as meaning whatever is lawfully payable in money or in kind or in both to a landholder by a ryot for the use or occupation of land for the purpose of agriculture and includes whatever is lawfully payable on account of water supplied by the landholder or taken without his permission for cultivation of land where the charge for water has not been consolidated with the charge for the use or occupation of the land. Therefore rent includes what is payable for water taken without permission. The suit being a suit under Section 77 and being for the recovery of the value of water taken without permission, we consider that it must be treated as a suit for rent and not a suit in tort. The word 'unjustly' was introduced obviously as meaning without right.
4. The answer to the question whether the suit is maintainable depends on the meaning to be given to the word 'enhanced' in Section 24 of the Act which says:
The rent of a ryot shall not be enhanced except as provided by this Act.
5. The appellant says that it is a suit for enhancement of rent and as the rent has not been enhanced in accordance with the provisions of the Act it cannot be maintained. The provisions of the statute which permit of enhancement are confined to Section 30 and to Chapter XI, which relates to the re-settlement of rents. Section 30 permits applications to be made by landholders for enhancement of rents in special circumstances. There are four grounds on which a landholder can apply under this section. Under Sub-section (i), the landholder may apply to the Collector, to enhance the rent on the ground that during the currency of the existing rent there has been a rise in the average local prices of staple food-crops in the taluk or zamindari division. Sub-section (ii) gives him the right of applying when during the currency of the existing rent the productive powers of the land have been increased by an improvement effected by him or at his expense. Sub-section (iii) permits him to apply when a work of irrigation or other improvement has been executed at the expense of Government, and he has been lawfully required to pay in respect of the holding an additional revenue or rate to Government in consequence. Sub-section (iv) allows him to apply when the productive powers of the land have been increased by fluvial action.
6. The learned Advocate for the appellant has argued that the plaintiff could have applied under Sub-section (ii) of Section 30 for enhancement of rent, and if he had done so and obtained an order increasing the rent in respect of the three years the suit would have been in order, but as he has not secured an enhancement under this section the suit does not lie. This, however, is not a case of a landlord attempting to recover a higher rent because of any improvement effected by him or at his expense. Section 3(4) defines 'improvement' as meaning with reference to a ryot's holding any work which materially adds to the value of the holding, which is suitable to the holding, and consistent with its character, and which, if not executed on the holding is either executed directly for its benefit or after execution is made directly beneficial to it. Here the landlord did not construct the tank for the benefit of the defendants or for the improvement of their lands. The water in the tank was intended for other tenants and his claim was that the defendant tenants had taken the water without his permission. In other words they had taken advantage behind his back of a work which was intended for other people. It is, therefore, not open to the appellant to say that the plaintiff ought to have taken advantage of Section 30 before instituting the suit. There were no circumstances which would permit of an application under Section 30.
7. Before referring to the authorities on the question of what is enhancement, I might point out that Section 189 of 'the Act defines the jurisdiction of the Collector. The details of the suit and applications which a Collector shall hear and determine are set out in Parts A and B of the Schedule. Item 3 in Part A is a suit by a landholder to recover arrears of rent. The second clause of Section 189 states that no Civil Court in the exercise of its original jurisdiction shall take cognizance of any dispute or matter in respect of which a suit or application might be brought or made in the Revenue Court. Therefore, this being a suit for rent within the meaning of the Act it could only be instituted before the Collector.
8. The meaning of the word 'enhanced' has been the subject of much discussion in this Court. This discussion started when the Rent Recovery Act, 1865, was in force and has been continued since this Act was replaced by the Madras Estates Land Act. The earliest case to which we have been referred is that of Thayammal v. Muttia I.L.R. (1887) Mad. 282 where the question was whether the landlord had a right to charge water cess when a wet crop was cultivated on dry land or when a second wet crop was cultivated on wet land. It was not denied there that water for these purposes had been taken from the proprietor's tank, and it was held that the landlord was entitled to call upon the tenant to pay for the extra water and that this did not constitute an increase in rent. In that case there was no discussion in the judgment on the meaning of 'enhancement', but the matter was referred to in argument. A similar decision was given in Venkata Rao v. Vaithilinga Udayan (1901) 12 M.L.J. 22 by White, C.J. and Davies, J. In Venkatachalam Chetty v. Aiyamperumal Tevan : (1919)37MLJ248 , Phillips and Kumaraswami Sastri, JJ., held that a charge for taking landlord's water is 'rent' within the meaning of Section 3(11) of the Estates Land Act and does not constitute an enhancement of rent.
9. A Full Bench of this Court consisting of Ramesam, Wallace and Jackson, JJ., considered the question in Doraiswami Gurukkal v. Subramania Gurukkal (1927) 54 M.L.J. 361 : I.L.R. 51 Mad. 266. In this case a ryot had used for the purpose of cultivating his land water from a tank belonging to Government, and Government required the landlord to pay for the water taken by the ryot. The landlord then sought to recover from the ryot what he had been compelled to pay to Government, and the question was whether this was a claim for enhancement of rent within the meaning of Section 24. The reference to the Full Bench was made by Sriniyasa Aiyangar and Curgenven, JJ., and I will quote a passage from the judgment of Srinivasa Aiyangar, J., which shows in precise terms what is meant by the expression 'enhancement of rent':
The expression 'enhancement of rent' in ordinary English parlance may apply to two different things : firstly, to any increase in the amount payable by the tenant to the landlord in relation to the holding, and secondly, to a larger amount being required to be paid by the tenant to the landlord in respect of the very things that a tenant has been previously enjoying and without any further advantages. Logically speaking, it is only the latter that can be regarded as constituting a real enhancement of rent. If in the place of half a dozen rooms in a flat the tenant comes to occupy two more rooms and the rent is proportionately increased, it cannot, properly speaking, be called an enhancement of rent; similarly, if the rent of the tenant should be increased let us say for electric lights installed in the house by the landlord.
10. In deciding the reference Ramesam and Wallace, JJ., held that the claim was not a claim for enhancement within the meaning of the section. Jackson, J., dissented and in doing so expressed the opinion that the enhancement might vary from year to year. This would, however, conflict with the scheme and the provisions of the Act. There can only be an enhancement under Section 30 or under Chapter XI. Section 30, as I have pointed out, deals with special circumstances under which a landlord may apply, but when he applies and the application is granted the order of the Collector fixes the rent which is to be paid by the tenant in the future, and he will be liable to pay it until it is altered either by a fresh application under Section 30 or as the result of a re-settlement of rents under Chapter XI.
11. A case on which the appellant has placed reliance is that of Sundaram Pillai v. Karuppayee Ammal : AIR1935Mad1073 which was decided by Ramesam and Venkatasubba Rao, JJ. There Venkatasubba Rao, J., said (page 31):
I fail to see how an extra charge for water, when wet crops are raised on dry land, having regard to the implications of Section 30, does not amount to an enhancement,
and he discussed this question at considerable length. The appeal, however, did not call for a decision on the question because the evidence showed that the water was Government water, and consequently the tenant could not be required to pay any increased rent. Therefore, the remarks of the learned Judge on this question must be regarded as obiter dicta. Ramesam, J., accepted the view which found favour in Venkatachalam Chetty v. Aiyamperumal Tevan : (1919)37MLJ248 and with great respect for all that was said by Venkatasubba Rao, J., we consider this view to be right.
12. The question is whether the word 'enhanced' is to be given its dictionary meaning or whether it is to be given a special meaning so far as Section 24 is concerned? This difficulty could have been avoided by more careful drafting but we have got to consider the Act as it is. In our opinion Section 24 must be read in conjunction with Section 30 and Chapter XI. They contain the only provisions for enhancement of rent. Section 3(11) in effect says that money payable for water taken without permission shall be deemed to be rent. Therefore it can be recovered as such and the authorities show that if such water is charged for it does not amount to an enhancement of the rent within the meaning of the statute. The claim being one for rent within the meaning of Section 3(11) the Civil Court was closed to the plaintiff and the claim could only be enforced by proceedings instituted under Section 77. We hold that it was properly instituted and that the fact that the plaintiff sought to recover something extra for water taken by his tenants during the three years mentioned in the plaint does not mean that he was suing for enhanced rent within the meaning of Section 24.
13. The argument that the terms of the patta precluded the plaintiff from instituting the suit must also be rejected. It is true that paragraph 4 of the patta states:
It is settled that you should on no account demand a reduction or remission of cist either on account of excess inam or want of rain or for any other reason and that I should on no account enhance the cist at any time on the said kamatham (holding),
but when the patta was drawn up it was never contemplated that the tenants would take water from the landlord's tank without his permission. The fact that the parties did not contemplate an increase in rent in the ordinary way does not preclude the landlord from requiring his tenants to pay for something taken without his permission. The tenants took the water behind the back of their landlord and must pay for it. The law says that it may be recovered as rent and that is what the plaintiff sought to do in the suit out of which this appeal arises.
14. It follows that we consider that the decision of the learned District Judge is correct and that the plaintiff is entitled to hold the decree granted to him. It has, however, been brought to our notice, that the appellant was in fact a tenant for only one fasli (1338), and he will be only liable personally in respect of that year. The rent for three years will of course be a charge on the land. The decree will be modified to this extent. The appeal having failed the respondent is entitled to his costs.
15. I agree. I only wish to add a few words in respect of an observation in Battina Appanna v. Raja Yarlagadda : (1917)33MLJ355 which has given rise to some criticism in later cases. The principle was there enunciated that where new circumstances have come into existence which require new adjustment there is no question of enhancement. If I may say so with due respect to the learned Judges, there was no difficulty in applying this principle to the facts of the case then before them, but the generality of the language used in the observation gives room for criticism. As has been pointed out in later decisions, the case contemplated in Section 30(ii) may well be held to fall within the general language employed by the learned Judges. The same difficulty arises with reference to the passage in the referring judgment of Srinivasa Aiyangar, J., quoted by my lord in the judgment just delivered. It therefore appears to me that the term ' enhancement' as used in the Madras Estates Land Act should not be understood either in its etymological sense or even in the sense explained in Battina Appanna v. Raja Yarlagadda : (1917)33MLJ355 , but in the light of the history of the decisions bearing upon the point in this Presidency. As shown in the judgment just delivered, it was well settled under the Rent Recovery Act of 1865, that the landlord was entitled to claim extra payment when a tenant used the landlord's water for raising a wet crop on dry land or a second crop on a single crop wet land. As a matter of procedure, it had also been recognised that a claim of this kind would not amount to an enhancement which required the sanction of the Collector under the old Act. When Act I of 1908 was enacted, the Legislature seems to have accepted this view of the law both as to the right of the landlord as well as to the necessity for the Collector's sanction. It is only in respect of advantages which might be said to have brought about a new state of things that proceedings under Section 30 were contemplated and not for temporary advantages which at his option the tenant might have enjoyed by the use of the landlord's water in a manner which he had no right to do. The combined result was achieved by carrying the substance of the proviso to Section 11 of the old Act into Section 30 and by embodying the effect of the previous case-law in the definition of 'rent' in Section 3(11) of the Act. The very way in which the definition is framed clearly implies that prima facie such a payment will not be included in the conception of rent; but, for the purpose of facilitating the recovery of the same by the landlord, and also with a view to encourage such user instead of regarding it as an illegal or prohibited act, the legislature preferred to embody the effect of the case-law by giving an extended definition to the term ' rent' in the new Act. It is true that, as pointed out by Venkatasubba Rao, J., in Sundaram Pillai v. Karuppayee Ammal : AIR1935Mad1073 , the extension of the definition will not of itself give a right to the zamindar to impose a charge but the zamindar was assumed to have the right as declared in the older cases and the definition was so framed only to indicate the manner in which the zamindar was entitled to recover it. The distinction between payment for temporary advantages of this kind and payment of an enhanced rent in the real sense contemplated in the Act is clearly brought out, if I may say so, in the judgment of Raja of Vizianagaram v. Narayanaswami Naidu (1935) 70 M.L.J. 494. In the former case, the basic rent remains the same and the tenant is entitled at his option to take the water or not; in the latter case, the basic rent itself is raised and the tenant will continue to be liable to pay the higher rate of rent whether he cultivates the land or not and whether he takes the water or not, unless he takes steps in the manner provided for in Section 32(3) to get the rent reduced.
16. I wish to add a word about another point raised by Mr. Suryanarayana, namely, that the zamindar will be entitled, even under the older decisions, to claim payment when water is taken from his tank only if there is a contract express or implied between the parties providing for such payment. It is no doubt true that in many cases there used to be a clause to this effect in the pattas, providing for the contingency of the tenant taking water from the landlord's tank for raising wet crop on dry land or a second crop on a single crop wet land; but I cannot accede to the contention that the zamindar's right is limited to such cases. The appellant's argument is no doubt supported to some extent by the observations of Srinivasa Aiyangar, J., in Venkatayya v. Kistappa : AIR1928Mad340 but it is not easy to reconcile them with the express provision in the Act which contemplates a payment for the use of such water even when it is taken without the landlord's permission. It does not seem to me right to assume that the legislature contemplates only a contractual right. Cases which may even be regarded as claims for damages on the ground of unlawful use of water are equally within the terms of the section; the legislature preferred that even such claims should be treated as claims for ' rent' instead of claims for damages, it being to the interest both of the landlord and of the tenant that such user should not be prohibited as tortious (cf. Section 45 of the Act of 1908 as to 'rent' being payable even by a trespasser).
17. I agree.