1. These appeals arise out of decrees in a number of suits brought by the Rajah of Ramnad (the appellant) anu the tenants (the respondents) against each other under Section 77, Madras Estates Land Act.
2. The Advocate-General for the appellant has argued that the findings of the District Court are erroneous under broadly speaking two headings:
1. That the rates awarded in respect of various crops are inadequate.
2. That the learned District Judge has put the burden of proving that waste lands, were uncultivated through no fault of the tenant on the landlord whereas it was for the tenant to adduce this evidence.
3. We. have after hearing the Advocate-General on point 1 indicated that in our view questions of the adequacy or inadequacy of rates (matters which have been most thoroughly investigated on evidence in the Courts below) do not call for an interference in second appeal being largely questions of fact and so far as this topic is concerned we dismiss the relevant appeals.
4. The second point however is a question of law and is clearly a matter of importance between landlord and tenant.
5. The matter arose out of a claim for rent for certain waste lands, by the appellant.
6. In reply to this claim the respondents in para. 6 of their written statement put in an involved plea the effect of which is agreed to be that the tenants are by custom not liable for rent for lands left waste ' not on account of wilful default or personal liability'.
7. It is at least clear that the parties went to trial on this basis, for issue 4 reads as follows:
Are the lands left waste in the several suits due to causes beyond the control of the ryots and is plaintiff not entitled to rent
8. The issue imposes the onus upon the defendants. It is not quite clear whether there was a dispute as to onus in the first Court but the Special Deputy Collector ruled that it was on the ryots and in the absence of any evidence by them to sustain it allowed the appellant's claim in respect of waste lands, at the same time stating the law as follows:
The person who sets up a special plea with a view to claim exemption from statutory liability has to prove the existence of special circumstances which bring his case under the exception.
9. This is a succinct and accurate statement of the rule of evidence applicable, which is to be found in Sections 101 to 103 of the Evidence Act which state the English Common Law Rules as built up by numerous cases. There is a direct authority in Madras in Ramasami Servaigaran v. Athivaraha Chariar (1917) 7 L.W. 471 on this exact question of onus as between landlord and tenant though there does not appear to have been much of any discussion on that point, the judgment being directed mostly to the question of whether the landlord can claim tent for waste lands at all. As to this, the Court held that as under Section 4 of the Estates Land Act the landlord is prima facie entitled to rent for all ryoti lands it is incumbent on the tenant to establish any custom on which he relies to excuse him and the facts which make that custom a shield. We consider that this decision exactly applies to the present case.
10. The case in Rajah of Ramnad v. Meerasa Marakkayar (1918) 50 I.C. 892, which it has been suggested is contrary to Ramasami Servaigaran v. Athivaraha Chariar (1917) 7 L.W. 471, is not in fact so, as the former case was decided on a special finding in favour of the ryots and it is to be observed that the Court (Phillips and Kumaraswami Sastri, JJ.) did not express dissent from Ramasami Servaigaran v. Athivaraha Chariar (1917) 7 L.W. 471, although it was cited. The learned District Judge has however reversed the decision of the first Court on the question of onus. He says:
The Deputy Collector wrongly threw the onus on the ryots to show that it was not due to their default the land lay waste; the onus really being on the landholder.
11. He gives no reasons for this decision and refers to no authorities and allows the ryots' appeals because there was
absolutely no evidence... that the waste was du to the ryots' default.
12. Since the onus had been put upon the ryots in the first Court this was naturally so. This decision is sought to be supported before us by the somewhat curious argument that the reason why the waste lands could not be cultivated was ' peculiarly within the knowledge of the landlord' - though why the actual occupant of land should be unable to say why he cannot cultivate it has never been explained. The tenant whose business and presumably desire it is to cultivate his holding must surely of all men be in possession of the facts to which he can ascribe his inability to carry out the object for which he holds the lands. The present case cannot possibly be brought within Section 106, Evidence Act, as the respondents' advocate presumably seeks to do. For the above reasons we think the Deputy Collector was right and the District Judge wrong on the issue as to onus.
13. In the result Section As. Nos. 37 to 44 and 46 to 57 of 1929 which refer to the question of rates are dismissed and Section As. Nos. 59 to 69 of 1929 which refer to the question of onus are allowed.
14. No costs.
15. I agree.
16. The question agitated in these appeals, what is the proper rate fo'r plantains grown upon dry land, is a new one, for which, on this estate, there is no guidance to be obtained from precedent. Fixing the fair rate therefore becomes a matter of judicial discretion, and there is no reason for holding that the learned Judge in the exercise of his discretion has in any way erred.