1. The landlord claims to charge a certain rate for dry lands on which wet crops are raised with Government water under a contract entered into in Fasli 1279 when the change was made from the Asara to the Visabadi system. The District Judge is wrong in supposing that the plaintiff's case was that the question of the rate for such cultivation was reserved for future settlement. The mistake probably arose from the fact that this case was heard along with other cases where there was such a contention. But it is, however, now conceded that there is no evidence of the contract set up. The landlord then contends that he is entitled to varam under the 3rd clause of Section 11 of the Rent Recovery Act. It is argued on his behalf that the rule as to the Collector's sanction for enhancement does not apply when the landlord merely claims to revert to varam when there is no contract. We think this contention is right. The learned Advocate-General, who appears for the respondent, does not dispute the correctness of this view. But he argues that there was a contract to pay the dry rate for dry land though cultivated with wet crop with the aid of Krishna water. This question was not expressly put in issue. And we do not understand the District Judge to have found upon it. The Advocate-General relies upon long payment of dry rates. But Mr. Sunday Aiyar draws our attention to the Muchilika, Exhibit E 17 in Second Appeal No. 1127 of 1908 and to the payment of higher rates for one fasli in S.A. 1126 of 1908 as negativing the contract. It is for the District Judge to find upon the evidence on record, 'whether there is an implied contract to pay a fixed dry rate for dry lands irrespective of dry or wet cultivation being carried on.'
2. The finding should be submitted within six weeks, and seven days will be allowed for filing objections.
[The District Judge returned the finding that there was no implied contract to pay Rs. 1-13-3 irrespective of dry or wet cultivation being carried on. - ED.]
3. We accept the finding of the District Judge. The learned Advocate-General has argued strenuously that the question of implied contract is one of law and that it is competent to us to go into the facts with a view to determine whether a contract may be implied in this case or not. It has been held in Siriparapu Ramanna v. Mallikarjuna Prasada Naidu I.L.R. (1893) M.43, Mallikarjuna Prasada Naidu v. Lakshminarayana I.L.R. (1893) M. 50 and Brahmanna v. Appa Row (1901) 11 M.L.J. 292, that the question of implied contract under Section 11 of the Rent Recovery Act, is a question of fact, and that it is not open to the High Court in second appeal to interfere with the rinding of the lower appellate court. But the learned Advocate-General draws our attention to the decision in Second Appeals Nos. 617 to 620 of 1902. The judgment in these cases has referred to the other cases which we have cited and the observation is made that an inference from admitted facts is not a question of fact but a matter of law. It is no doubt true that where from admitted facts the only inference open to the courts is a particular thing and the lower court fails to draw that inference, the matter may be said to be one of law, into which it would be competent to the High Court to enter. But it cannot be suggested that upon the facts of this case, only one inference was open to the lower appellate court. When the Asara rate was commuted into a money rate, dry lands were being cultivated for dry crops, and for a considerable period dry rates alone have been charged. The District Judge also refers to the fact that in Fasli 1303 when a wet crop was raised, higher rent was charged and it was recovered by distraint. No exception was taken to the distraint and no suit was filed by or on behalf of the tenant. We cannot say that upon these facts the only inference that the judge was bound to draw was that there was an implied contract to pay at a particular dry rate. That being so, we think the inference in this case is a pure inference of fact and we are not entitled to interfere with the finding of the learned judge.
4. There being no contract, it is argued for the appellant that he is entitled to claim varam. He instituted his suit claiming a money rent of Rs. 3-13-0 for every acre of dry land on which wet crops were raised. He sought to enforce the acceptance of a patta with such a term. In second appeal also he claims to enforce the acceptance of the patta which he tendered. He no doubt raised a ground of appeal to the effect that he was at least entitled to varam. The respondent is prepared now to accept the patta with a money rent of Rs. 3-13-0 as provided in the patta. The appellant is not now entitled to say that he has a liberty to revert to varam. The defendant agreeing to the patta which the plaintiff tenders, we must accept that agreement and say that the patta tendered was proper. We would, however, modify the language of Clause (a) by substituting 'this fasli' for 'any fasli.' The appellant will be entitled to his costs in this and in the lower appellate court.