1. Plaintiff, respondent, is the zamindar of Nuzvid and appellants are raiyats in the Jeroyati village of Mantena comprised in his zamindari. The contest between them is whether the pattas tendered for fasli 1296 were such as the raiyats were bound to accept. The first objection urged by them was that the land taken up for excavating Uppaleru drainage channel was not deducted from their holdings on the ground that the Government had paid no compensation for the land so taken up to the zamindar. Both the Courts below allowed this objection, and the zamindar has not appealed from their decision.
2. The next item to which the raiyats object is the rate per acre imposed on dry land converted into wet. The rate claimed by the zamindar was Rs. 9-2-8 per aero, and the raiyats contended that the proper rate was the rate which had prevailed at the time of permanent settlement in 1802. The Head Assistant Collector and the Judge inferred, from the facts which they accepted as proved, a contract to pay every year Rs. 9-2-8 per acre. The contention on appellants behalf is that no contract can be lawfully implied, the rate of Rs. 9-2-8 having been paid not voluntarily, but under protest and with remonstrance.
3. The finding that there was an implied contract being one of fact, the question we have to consider on second appeal is whether it is open to any legal objection. The Judge considers it proved that there has been a continuous payment of Rs. 9-2-8 per aero from the year 1871 to 1885, and in the Full Bench case of Verikatagopal v. Rangappa I.L.R. 7 Mad. 373 in which it was held that there was an implied contract, the same rate had been paid for fourteen years. It is thon argued that the management of the Nuzvid estate has always been oppressive and that the raiyats protested against the rate of Rs. 9-2-8 in 1871 and in 1880. We think that the expression of discontent now and then was not sufficient and that the omission to resort to the Revenue Courts for redress for so long a period is significant. Again, the Judge observes that the same rate had been paid down to 1885 and subsequent to the dates of the alleged remonstrance, and that the reasonable inference is that the matter was settled between the parties. In this there is no error of law to justify our interference with the finding, Moreover, there was a similar question raised with reference to the pattas tendered for the previous fasli, viz., 1295, and it was also decided against appellants. Further, the Judge observes, and we think, very properly, that if it is reasonable for the raiyats to seek to revert to the faisal rate which prevailed in 1802, the zamindar may as reasonably go back to the sharing system which is not agreeable to them. We are of opinion that the objection to the inference of a contract to pay at the rate of Rs. 9-2-8 cannot be supported.
4. The next question is whether the Judge was right in treating as valid the sanction given by the Head Assistant Collector, Ramachandra Rau, for enhancing the rate to Rs. 9-2-8 for fasli 1296 in the cases from which Second Appeals Nos. 681 and 682 of 1891 arise. In connection with the patta tendered for 1295, appellants in those cases objected to the rate and contended that, as they had excavated a distribution channel at a cost of Rs. 115, the zamindar was not at liberty to on hence the rent without the, sanction of the Collector. The Head Assistant Collector upheld their objection and directed in his judgment that the costs of excavating the sub-channel be deducted from the sist payable to the zamindar. After this deduction bad been made, the zamindar applied for sanction to raise the rent to Rs. 9-2-8 per acre on lands under the channel, and on 23rd Juno 1887 the Head Assistant Collector granted the sanction, but without sending notice to the raiyats and calling upon them to show cause why sanction should not be granted. Appellants in Second Appeals Nos. 681 and 682 of 1891 questioned the validity of the sanction on three grounds, viz., (1) that the Head Assistant Collector was not competent to grant the sanction, (2) that the increase sanctioned was unreasonable, and (3) that the sanction was given without notice to them; but the Judge disallowed these grounds of objection. The term Collector as defined in Section 1 1, Act VIII of 1865, includes the Head Assistant Collector and the first objection therefore is entitled to no weight. As regards the omission to give notice, it was clearly an irregularity, for the act of giving sanction is a judicial act intended on the one hand to protect the raiyat against excessive enhancement and on the other to secure to the zamindar what may be considered a fair and an equitable increase. A sound decision can, therefore, only be arrived at after hearing both parties and considering what is urged in the interest of each. The sanction prescribed by the proviso in Section 11 has the force of a binding contract not only for any particular fasli, but also for future years, and the power to give such sanction is vested in the Collector as the officer competent to hold the balance evenly between the zamindar and the raiyat. In our judgment, it can only be properly exercised after hearing both sides and after consideration of the rights of both parties under Act VIII of 1865. We are unable to accede to the contention on behalf of the zamindar that the granting of sanction under Section 11 is an administrative act and not defective by reason of the raiyats not having been heard. We agree, however, with the Judge that in the present case the. irregularity was not material since the Head Assistant Collector had heard what the raiyats had to say in the suit of fasli 1295. There is the further fact that the cost of excavating the distribution channel has been deducted from the sist payable by the raiyats to the zamindar, and that the rate charged in the case of those raiyats, who had incurred no similar expenditure was Rs. 9-2-8 per acre.
5. Another item to which exception is taken in all the second appeals is the rate charged for garden lands watered by wells sunk by the raiyats at their own expense. The Head Assistant Collector found that the jarib rates now claimed were customary and that they had been paid for a long series of years, and the Judge has accepted the finding. In the case of Venkatagiri Raja v. Pitchana I.L.R. 9 Mad. 30 it was held that while in the case of lands watered by wells newly constructed by a tenant at his own expense he cannot be deprived of the benefit of the improvements made at his own expense, he cannot, on the other hand, insist on a reduction of the assessment in the case of old garden lands which had paid a manual garden rate. There are no grounds for interference in second appeal.
6. The next objection taken by the raiyats is as to the stipulation that the raiyats shall not build houses on the land, and the Judge has allowed the stipulation to stand. The question whether a tenant can build on his lands was discussed in Ramanadhan v. Zamindar of Ramnad I.L.R. 16 Mad. 407 and the decision arrived at in that case was that the tenant was not at liberty to turn land originally let for cultivation into a house site without the consent of the zamindar, and that he is only entitled to raise such buildings as are not incompatible with the character of his holding as an agricultural holding. The stipulation in the patta should be so modified as to prevent the raiyat from raising any building incompatible with an agricultural holding.
7. The last objection taken is as to the tenant's right to cut down trees, and on this point the Judge has decided in accordance with the decision of this Court in Appa Rau v. Ratnam I.L.R. 13 Mad. 249
8. We modify the decrees of the District Judge so far as they relate to building on the land as indicated above and confirm them in other respects. The appeals having substantially failed, appellants will pay respondent's costs in Second Appeals Nos. 681 and 682. The respondent not being represented in the other appeals, we make no order as to costs.
Section 1: The word 'Collector' shall be to denote
Interpretation clause. every Officer who, for the time being, is authorized to exercise
Collector. the powers of a Collector.