1. The appellant was the defendant in a suit for rent under the Madras Estates Land Act. After issues had been framed in the suit and after the defendant had contended that the rate of rent claimed was excessive, the plaintiff (the land-holder) filed an application under Section 42(2) of the Act praying for an alteration in the rate of rent due under the patta with reference to the excess area in the defendant's holding and asked that that alteration should have effect for the fasli years in respect of which rent was being claimed in the suit. The alteration prayed for was in fact an alteration of the rent in the patta to the rent claimed in the suit. The learned Sub-Collector instead of disposing of this application separately allowed it to go along with the suit and passed orders on it in one sentence embodied in the judgment in the suit, which judgment however is not superscribed as a judgment in the application though undoubtedly it was intended to terminate the application as well as the suit. The learned District Judge, who heard the first appeal, decided that the order in the application operated as res judicata to bar the appeal against the decision in the suit. It is rather difficult to see how a contemporaneous decision on an application filed after the suit was filed can be a decision on a matter 'directly and substantially in issue in a former suit' between the parties 'so as to bar any subsequent suit'. That question however does not really arise in the view that I take on the main question whether an application filed under Section 42(2) after issues have been joined in a suit for rent can have the effect of validly altering the rent for the previous years for which rent is claimed in the suit itself. It is argued for the respondent on the analogy of the ruling in Narayana Pantulu v. Veerabadra. Raju I.L.R.(1927) 51 Mad. 228 : 54 M.L.J. 564 that a Court which is trying a suit for rent has a duty to determine what is the proper rate of rent and that incidentally it may determine the amount of rent due and not paid on excess area for which rent is claimed with reference to Section 42(1)(a) of the Act. This argument may be tenable when there is no dispute regarding the excess area or the rent due thereon. But when there is a dispute Clause (2) comes into force. This clause under the old Act with which we are now concerned reads as follows:
Provided that, in cases of dispute, no alteration of the amount of rent under this section shall be allowed except under the order of the Collector upon application made to him for that purpose by the land-holder or the ryot concerned.
2. Now it has been held by a Bench of this Court in Srinivasa Ayyangar v. Abdul Rahim Sahib I.L.R.(1917) 6 L.W. 108 that a suit for enhanced rent. on the ground of increase in the total area cultivable by the pattadar is not maintainable unless the land-holder obtains the order of the Collector under Section 42(2) sanctioning such an enhancement. That case was one in which no application at all was filed. But their Lordships observe that 'the suit for excess rent will not lie until the land-lord has obtained an order of the Collector under Section 42(2)' apparently contemplating the obtaining of the order as a condition precedent to the filing of the suit, though of course in that particular case no order having been obtained, it cannot be said to have been definitely ruled that a suit will not lie for enhanced rent when the application under Section 42(2) is submitted after the suit is filed but prior to the hearing. Looking at the matter broadly, it seems to me that when there has been an exchange of patta and muchilika, the Act contemplates that the relations between the landholder and tenant should be governed by the patta and muchilika exchanged unless there has been some variation thereof by a procedure approved by the Act. When this variation arises out of the discovery of an excess extent Section 42 lays it down that the ryot should be liable to pay for that excess but specifically provides that in case of dispute the prevailing rates shall not be altered except under the order of the Collector. It seems to me unreasonable that the landholder should allow the ryot to cultivate his holding for three years under a patta the terms of which prescribe a pre-existing rate of rent and then after he has filed his suit endeavour to get those rates altered by an application which is to have retrospective effect. I do not believe that it was contemplated when Section 42 Sub-clause 2 was drafted that an application to the Collector should have the effect of nullifying the basis, the contractual relationship of the parties for a period prior to the filing of the application and cartainly it would be a very extreme extension of the powers of the Collector to permit him on the strength of an application filed after issues had been joined in a pending suit to alter the contractual relationship between the parties upon which that suit ought to have been based.
In this view I hold that the order of the learned Sub-Collector varying the rates of rent on the suit lands cannot have any force for the period prior to the filing of the application. The appeal is therefore allowed and the Lower Court's decree will be modified. The plaintiff can only be given a decree for rent at the rate of Rs. 5-4-9 which is the rate specified in the patta accepted by the defendant. The Respondent will pay proportionate costs in the first Court and full costs in both the appellate Courts.