Sadasiva Iyer, J.
1. The defendant (the Raja of Raranad) who is a landholder under the Estates Land Act is the appellant before us. The plaintiff is a ryot under him and for Fasli 1323, i. e., 1913-14, the defendant tendered a patta to the plaintiff in which he charged the plaintiff with; a higher rent than the rent which the plaintiff had been till then paying for the land in his holding on the ground that Vanpayir crops were cultivated in that fasli for the first time with the help of a well which the plaintiff excavated in the land at an expense of Rs. 600 in 1912-13 after the Estates Land Act came into force. As the plaintiff paid only the usual dry rate and refused to pay the difference between the Vanpayir rate and the dry rate the defendant attached the lands. Hence the plaintiff brought the suit in the Collector's Court for raising the attachment as illegal contending that he was not bound to pay a higher rate for raising the Vanpayir crops as the improvements were effected at his own expense after the passing of the Estates Land Act, and as there never existed any contract to pay such a higher rate of rent. Both the lower courts, as I understand their judgments, held (1) that there was no usage proved to pay the higher rent claimed and (2) that no contract express or implied to pay it has been proved and (3) that so far as the alleged usge is concerned, Section 13 (3) of the Estates Land Act precluded such usage being relied on for claiming a higher rate of refit. They did not go into the question whether, if a contract before the passing of the Act was proved, higher rent could be claimed even after the passing of the Estates Land Act notwithstanding Section 13(3), nor did they consider the question whether, even if Section 13(3) did not apply retrospectively to the case of a contract made before the Act came into force where the improvements also had been made before the Act came into force, that section may not apply in the case where the improvements were effected after the Act came into force though the contract was before the Act.
2. Several decisions alleged to bear on the question in dispute were quoted before us. But most of them were decided; with reference to the provisions of Act 8 of 1865, I do not think it necessary to refer to most of them. The question whether retrospective effect should be given to Section 13(3) was considered by myself and Napier, J in Venkata Perumal Raja v. Ramudu 28 M.L.J. 81. Owing to the difference of opinion between us on it, the case went before Mr. Justice Kumaraswami Sastri. I gave my opinion definitely that after the passing of the'Estates' Land 'Act a landlord cannot claim enhanced rent on account of the increased outturn of the crops due to the improvements made by 'the ryot (1) whether the improvements were made before or after the passing of the Act (2) whether or not there was a contract to the contrary and (3) whether such contract was made before or after the passing of the Act. In the opinion pronounced by Mr. Justice Kumaraswami Sastri which prevailed ultimately, it is stated in one place: 'Clauses 1 and 2 to the section, i.e. Section 13, can only refer to improvements to be effected in future and if the legislature intended Clause 3 to be retrospective it would have given some indication of such intention. On the contrary the use of the words ' shall not by reason of making an improvement become liable' indicate that only future improvement are intended.' If this passage alone is taken from the learned Judge's opinion, it might be plausibly argued that he held that where the improvements were effected after the Act came into force, Section 13(3) would prevent the claiming of a higher rent in respect of such lands on account of increased or more valuable crops through future improvements even if the contractHo pay a higher rate had been made before the Act. But at page 95, the learned Judge proceeded to state: 'I am of opinion that the words ' contract1 to the contrary 'refer only to contracts made after the passing of the (Act and that Section 13(3) has no retfdspective operation in cases where rent claimed was payable under a contract which would have been legally enforceable under the Rent Recovery Act or any other law in force at the time of the passing of the Estates Land Act.' I therefore take it that the learned. Judge intended that even in cases where the improvements were made after, the passing of the Act if there was a contract before the passing ,of the Act enhanced rent could be cfaimed under it and ' that contract would not be affected by Section 13(3).
3. Mr. L.A. Govindaragava Aiyar for the appellant therefore strenuously contended that the contract found against by both the lower courts ought to have been found by both the courts as existing. He argued alternatively that, at any rate, in deciding against the existence of such a contract, they misdirected themselves on some questions of law and hence their finding should not be accepted and that we should call for a fresh finding.
4. That no express contract has been proved could not be controverted. Mr. L.A. Govindaragava Iyer argued that the lower courts should have found an usage existing immemorially for payment of such enhanced rent if Vanpayir crops are raised by a ryot in this village, that they should have presumed from such usage and from the fact that rents were originally fixed, on a varam basis that when such rents were commuted to money rates (though we do not know when they were so commuted,), there was a contract made between the landlord and all the tenants in thg village including the plaintiff's predecessor in title to pay enhanced rent for Vanpayir crops raised and that the lower courts misdirected themselves in not giving sufficient weight to the usage and in not drawing such an inference. This usage was spoken to by the single witness (Karnam) examined on the defendant's side. He also produced certain Jamabandi accounts signed by two deceased persons which contained entries of payments of higher rents by other tenants between 1897 and 1906. I shall assume that the lower courts would have acted more reasonably if they had found on the evidence a usage for the ryots to pay such enhanced rent for Vanpayir. (I do not express any opinion about it). Still I cannot say that unreasonably refusing to find the existence of such a usage, they committed any error of law. Again even if such usage, was proved, the question whether they were bound to imply any such contract between the plaintiff's predecessor in title and the then landholder is also not free from difficulty. In Periyakaruppa Mukkandan v. Raja Rejesivara Sethupathi (1919) I.L.R. 42 Mad. 475 (F.B.) deceased by a Full Bench of 5 Judges (Ayling, J. and Seshagiri Iyer, J. dissen(ing) the learned Judges who dissented held that as regards a contract to pay higher rate, legal origin and consideration therefore need not be presumed by courts merely from long continued payment of higher rents, while the majority held that it was open to the court to presume both an agree-'ment as legal origin and the consideration therefor turning that agreement into a contract. Thus even according to the opinion of the majority of the Judges, the court is not bound to presume an agreement and consideration for payment of higher rent by reason of mere usage established by long continued payment thereof. In the present case, the lower courts have refused to find that there was an implied agreement supported by consideration on the evidence adduced and I am unable to say that the facts and circumstances are such that they were legally bound to have found an implied contract on those facts and circumstances. The Second Appeal therefore fails and should be dissmissed with costs.
5. It was strenuously argued by the appellant's vakil that the lower courts ought to have found the existence of a contract between the tenant and the Rajah at the time of the commutation of the varam rents into money rents to pay garden or vanpayir rates irrespective of improvements mde or to be made by the ryots. It is true that in Paragraphs 3 and 5 of the written statement, the defendant did allege that the varam system was converted into money rent system for the benefit of the ryots and that there was an agreement to pay rent at different rates according to the crops raised, the consideration for the same being the landlord's consent to collect only a small money rent instead of varam or division of produce which was more profitable. The lower courts have referred to the evidence of the 1st Defence witness and to the Jamabandi accounts, and the District Judge says ' they do not prove anything but the fact that Vanapayir was being levied in respect of other lands in the village ' and ' ' there is no other evidence in support of the defendant's claim.' It is now argued that the practice of paying Vanpayir spoken to by D.W. 1. should have been referred to a legal orgin namely, ati agreement to pay such rates at the time of conversion into money rates. But this witness only stated that as far as he knew there was a practice prevelent.from the beginning of the Samasthanam to charge Vanpayir rates. There is no means of knowing from this witness's brief statement and from the figures in the 'Jamabandi accounts what were the circumstances under which other tenants paid such rates, whether1 there were any improvements on their lands, whether such improvements were made by the ryots or by the landlords, and whether they voluntarily paid these rates or paid them in consideration of some concession made by the landlord to them. The witness said in cross-examination that the plaintiff had never raised a vanpayir crop before fasli 1323, that is, thefasli in suit to that he had no other land and that vanpayir crops could not be cultivated without the aid of wells. In order to understand whether there was an implied contract to be deduced from a custom to pay vanpayir rates, it would be necessary to know whether there were wells on the lands upon which such rates were paid and when the wells were constructed. In Gopalasami Chettiar v. Fischer I.L.R. (1904) Mad. 328 the subject of accepting a custom as proof of the: existence of a contract was dealt with in these words ' It rnay be that a contract may in certain circumstances be inferred on proof of a general custom affecting the holding of an estate. It was also observed lower down.: 'Each tenant's contract, if any, is to be inferred from his own acts and payments rather than from those of other tenants.' The High Court in that case finally declined to accept evidence that a number of tenants had paid tree-tax at various rates and in different ways as proof of a contract that every tenant should pay tree-tax at the various rates claimed by the landlord in the particular case. In-Arumugam Chetty v. Raja Jagaveerra Rama Venkateswara-Ettappa 36 M.L.J. 49 there was a finding by the District Judge that the agreements to pay enhanced rent were not void for want of consideration but the learned Judges declined to uphold his finding,as there was no evidence to support it. When the case went on appeal to the Prjvy, Council their Lordships held in Raja Jageveerra RamaVenkateswara Ettappa v. Aruipugam Chetty 36 M.L.J. 49 that, in the absence of any consideration for a new promise to pay at a higher rate of 8 fanams a kirfif for land which was previously held at 4 fanams a kuli, no implied contract could be inferred.
6. The facts of this case are somewhat similar to those of Gopalasami Chettiar v. Fischer I.L.R(1904) . Mad. 328 The lower Courts found no evidence in support of the defendant's claim, and I agree with my learned brother that it is not necessary to - call for a fresh finding, seeing that the learned District Judge has thoroughly considered the effect of the evidence on the record from the proper stand point; The Second Appeal should be dismissed with costs.