1. This appeal raises the question of the jurisdiction of a Revenue Court to deal with a claim by a landholder to recover under the Madras Estates Land Act a sum of money paid to the Government on account of water cess payable by the ryot to the Government. The appellant is the defendant who is a ryot. The suit was one of a large batch, in which various contentions were raised with which we are not concerned. For the purpose of the present appeal the essential facts are that the defendant had rendered himself liable to water cess for irregular irrigation of his land with water taken from a Government source. Under Section 1-A of the Madras Irrigation Cess Act, the Government on 22nd April, 1914, issued a notification the effect of which is that irrigation cess due in respect of regular irrigation shall be recovered from the landlord, whereas irrigation cess due in respect of irregular irrigation shall be recovered from the ryot to whose holding water is taken irregularly. It is established that in spite of this notification the local revenue authorities continued to follow the old practice whereby all sums due on account of irrigation of lands within an estate with the help of Government water, whether the irrigation was regular or irregular, were recovered by the Tahsildar from the landholder and the landholder was left to recover from the ryot. Consequently the sums due from the present defendant though due in respect of irregular irrigation were recovered from the plaintiff and the plaintiff claimed these amounts as part of his rent, without any special pleading regarding the circumstances in which he had discharged his (ryot's) obligation.
2. It is argued for the appellant that though the money payable to the Government by the defendant for irregular irrigation was originally payable on account of use and enjoyment of water supplied or taken to the cultivation of his land, the money which the defendant has to pay to the plaintiff is not a payment for the use of water, but a payment in compensation for unlawful recovery from the plaintiff of a sum of money due to the Government from the defendant; that is to say, it is purely a claim falling under Sections 69 and 70 of the Contract Act which can only be based on a proper pleading, showing the circumstances in which the payment was made and the reason for which the plaintiff is entitled to recover from the defendant. The contention is that this being an ordinary civil claim under Sections 69 and 70 of the Contract Act is not a matter over which a Revenue Court can exercise jurisdiction.
3. It must be conceded that this plea to the jurisdiction was not taken in the written statement as it should have been. But the appellant explains that the plaintiff did not set forth the circumstances in which this claim for irrigation cess was made and that as soon as the position was made clear the contention was put forward that the Revenue Court had no jurisdiction and a ground of appeal was taken in the lower appellate Court. In these circumstances, I think it is open to the appellant to urge this contention in second appeal.
4. Now the only question is whether the plaintiff's claim in respect of thirva jasti and fasli jasti which is in substance a claim to the reimbursement of the amounts collected from the plaintiff for irregular irrigation of the defendant's land, can be said to be a claim for rent within the definition in Section 3(11) of the Madras Estates Land Act. The definition runs as follows:
'Rent' means whatever is lawfully payable in money or in kind or in both to a landholder for the use or occupation of the land in his estate for the purpose of agriculture, and includes whatever is payable on account of the use and enjoyment of waters supplied or taken for cultivation of land, where the charge for such water has not been consolidated with the rent payable for the land.
5. I think it can be taken as settled by authority that in the ordinary cases where no rule is framed under the Madras Irrigation Cess Act an obligation is cast upon the landholder to pay irrigation cess with a power to recover from the ryot. Such a recovery is a collection of rent within the definition just recited. The Full Bench decision in Doraiswami Gurukkal v. Subramania Gurukkal (1927) 54 M.L.J. 361 : I.L.R. 51 Mad. 266 , proceeds on the assumption that such a charge does come within the definition of rent. It is true that the question was not in issue, for it had been conceded in that case that the claim was one for rent. It is also true that Wallace, J., doubts whether a claim of this nature for water cess recovered from a landholder by Government can be treated as rent. But the only reason given for the doubt is the fact that the landholder is a mere collection agent for the Government and the learned Judge finds it difficult to see how what does not really go into the landholder's pocket is rent. With the greatest respect it seems to me that this observation overlooks the fact that the definition of rent expressly includes local tax, cess, etc., which are collected by the landholder, not for his own benefit, but under an obligation cast upon him by law. There is moreover an express decision in Battina Appanna v. Raja Yarlagadda : (1917)33MLJ355 to the effect that Section 3(11) of the Madras Estates Land Act makes it clear that a payment for water supplied or taken from the Zamindaries rent and on the facts of that case there is no doubt that the payment in question was one for water supplied by I Government in respect of which the Zamindar was a mere collection agent. I take it therefore as well settled that when a Zamindar lawfully collects on behalf of the Government a payment for water supplied or taken for cultivation of land in the holding of a ryot within his estate, the charge in respect of that water forms part of the rent and a suit for recovery of that charge is one cognisable only by a Revenue Court.
6. There is, however, the special circumstance in this case that the charge in question was wrongly collected from the plaintiff. It is clear that under the notification referred to above the Tahsildar should have recovered the cess due for irregular irrigation directly from the ryot and that, presumably in ignorance of this rule, the money was erroneously collected from the landholder in pursuance of a practice which was, at the time of the collection, irregular. Can it be said that this circumstance changes the character of the payment which the defendant is to make so as to render it no longer a payment for the use and enjoyment of water supplied or taken for cultivation of his land, but a mere compensation payable under Sections 69 and 70 of the Contract Act to the plaintiff for in return for a payment made in good faith by the plaintiff under compulsion and on behalf of the defendant? I confess that the matter is not free from doubt. But on the whole I am of the opinion that the money which the plaintiff seeks to recover from the defendant must be deemed to be money lawfully payable on account of the use and enjoyment of water supplied or taken. There is no doubt that the real origin of this payment is the use and enjoyment of water. There is also no doubt that the money is lawfully payable to the plaintiff, for, though the collection from the plaintiff by the Government was irregular, it is clear that the plaintiff paid honestly under pressure a sum which was lawfully payable by the defendant and that the plaintiff has with reference to the terms of the Contract Act a lawful right to recover from the defendant. Seeing therefore that the plaintiff has bona fide paid a sum of money which was lawfully payable by the defendant for the use of water and which is lawfully recoverable by the plaintiff from the defendant, it seems to me that the sum recovery must be deemed to be recoverable lawfully on account of the use and enjoyment of water supplied to the defendant's land. I therefore hold that it forms part of the rent and that the Revenue Court has jurisdiction to adjudicate upon the claim. The appeal is therefore dismissed with costs.
Leave to appeal granted.