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M. Nagu Chetty and ors. Vs. M. Bhaskara Sethupathi Avergal and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.41
AppellantM. Nagu Chetty and ors.
RespondentM. Bhaskara Sethupathi Avergal and ors.
Cases ReferredChockalingam Pillai v. Mayandi Chettiar
Excerpt:
.....his punja the assessment is not to be increased but if he uses zemindar's tank water for paddy cultivation on punjai lands, he must pay waram. seeing that the pattah was apparently intended to be exhaustive in its terms it may be inferred from this last provision that if paddy crop is raised on punjai lands otherwise than by using the zemindar's tank water the ryot is not to pay waram and that it is so is to my mind placed, beyond doubt by the prior provision that any increase of produce due to improvement as a tank or well made by a ryot is not to be a reason for any increase of assessment. the arrangement of 1815 explained by the pattahs, and confirmed by the admitted conduct of the parties in recent years shows, in my opinion, that there is clearly a contract for rent..........that there is a different and higher rate of rent when vanpayir crops are raised, and that the paddy cultivation in this village commenced only about seven years ago. he was also of opinion that in the absence of any contract, the plaintiffs are entitled under clause (3) to section 11 to claim varam rent and that the evidence proved the landlord's share of the produce of dry crops to be one third. in this view, it was unnecessary for him to consider the question of the validity of the collector's arrangement of 1815, though he also found that the lands were paying varam before 1815. as to the alleged improvements made by the defendants he held that paddy can be grown without ridges which were only useful to keep away root worms and that ridges are formed even if there is no paddy.6......
Judgment:

Sankaran Nair, J.

1. These are appeals against the decrees of the District Judge of Madura reversing the decrees of the District Munsif of Paramakudi.

2. The appellants are ryots in the village of Tirupullani in the Ramnad Zemindari. The respondents are the Ramnad zemindar, the trustee of the Tirupullani temple, and one Arunachellam Chettiar, the lessee under the zemindar of this and certain other villages belonging to the temple. The questions for decision refer to the terms of certain pattas tendered to the appellants under the Rent Recovery Act. That the lands belong to the temple makes no difference. They are held on the same tenure as the ordinary zemin lands. The temple derived its title to the same by gift from the zemindar.

3. In the early part of the century there were lands in the village under wet cultivation which depended upon a tank for their irrigation. That tank has now disappeared. Whether there were any dry or punja lands then under cultivation is one of the points now in dispute between the parties. According to the plaintiffs there were punja lands under cultivation paying their share of the produce to the zemindar. However that may be, it is admitted that about 1815 the Collector who was in management of the Ramnad estate put an end to the sharing system so far at any rate as the punja lands were concerned and directed that thence forward rent should be received only in money, not in kind and the ordinary money rent payable for the cultivated punja lands was fixed and paid from that date at 5 1/2 fanams per kurukam. By patting up ridges on all sides to retain rain-water and removing the surface soil, the ryots are now raising paddy crops. According to the plaintiffs they have been doing so only for the last seven years while, according to the defendants this sort of wet cultivation has been carried on for the last forty or fifty years. But whatever the period of time, it is conceded that the ryots have been paying only at the rate of 5 1/2 fanams per kurukam, the rate settled in the beginning of the century. In 1892 Arunachellam Chetti's father obtained his lease and he tendered to the ryots the patta for fasli 1303 which the ryots have now refused to accept on account of some of the terms contained therein. The ryots object to any condition that they must pay varam or any share of the produce if they raise paddy which is a wet crop on these punja lands with the water retained by putting up ridges or by any other means. No objection is raised to the payment of varam if the zemindar's water is used.

4. Objection is also taken to the 5th Clause in the patta that the tenant should not alter the formation of land, which, it is said, is intended to prevent the ryots from putting up ridges also to the condition that the ryot must give up possession of the land which he may not be willing to cultivate.

5. The Munsif held that ever since these lands were brought under the cultivation, i.e., for the last forty or fifty years they were paying only a money rent of 5 1/2 fanams per kurukam, the rate fixed by the Collector in 1815 and never varam; and that, therefore, there was an implied contract under Section 11 of the Rent Recovery Act. He also held that assuming that these and other lands in the village were under cultivation before 1815, when the Collector made his arrangement, there was nothing to show that the arrangements were prejudicial; and seeing that all the predecessors of the plaintiffs had accepted the same, it was not open to the plaintiffs to revert to any varam system that may have existed before. He further held that it was unreasonable that the zemindar should now demand varam on account of improvements that were due to the skill and capital of the ryot who actually derives only very little profit. With reference to the second objection as to relinquishing the lands within the holding of the ryot which he does not cultivate during any year the District Munsif found that there is a good deal of evidence in the case to show that tirwa is paid only for the land under cultivation, and that the zemindar has not suggested any good reasons for the alteration. On appeal the District Judge has reversed the District Munsif's judgment. He held that no contract as to payment of rent has been proved in the case mainly for the reasons that there is a different and higher rate of rent when vanpayir crops are raised, and that the paddy cultivation in this village commenced only about seven years ago. He was also of opinion that in the absence of any contract, the plaintiffs are entitled under Clause (3) to Section 11 to claim varam rent and that the evidence proved the landlord's share of the produce of dry crops to be one third. In this view, it was unnecessary for him to consider the question of the validity of the Collector's arrangement of 1815, though he also found that the lands were paying varam before 1815. As to the alleged improvements made by the defendants he held that paddy can be grown without ridges which were only useful to keep away root worms and that ridges are formed even if there is no paddy.

6. On the second question he found that if the ryot has not the means to cultivate all the lands in his holding he should relinquish them to the landlord and that the terms objected to were reasonable.

7. In second appeal the same questions as were raised in the Courts below have been argued and we have to determine the proprietary of clauses Nos. 3 and 5 of the patta which is Exhibit (0) in the case.

8. As to Clause (5): The provision that the ryot must pay the melvaram or tirva, if through his fault the lands are not cultivated, seems reasonable and calculated to protect the just interests of the zemindar.

9. The condition that the ryot should not alter without permission the form of the land seems vague and indefinite and must be omitted.

10. The last part of the clause that the ryot shall relinquish in the beginning of the fasli, the lands not required by him, it is explained to us, only repeats Section 12 of the Rent Recovery Act. It may, therefore, as suggested in the course of the argument, be made clear thus: 'you may relinquish at the end of the Revenue year, according to the provisions of the Rent Recovery Act, the lands not required by you.' As to Clause (3): The question for decision is whether the zemindar is entitled to demand varam when punja lands are cultivated with paddy without the help of his water, or whether he is bound to receive only the fixed money rent hitherto paid. To decide the question we have to see whether there was any contract, express or implied, between the parties.

11. The Judge has found that in 1815 there were punja lands in the village under cultivation. This finding has been attacked in second appeal. After a careful consideration of the documentary evidence on that point to which our attention has been drawn, I am unable to say that the Judge is wrong.

12. However in 1815, the Collector who was in management of the estate discontinued so far as the punja lands were concerned the receipt of the rent in varam and substituted money rent at a fixed rate and it is not disputed that from that date to the present time rent at the above fixed money rate, i.e., 5 1/2/11 as fanams per kurukam alone has been received (9-10th acre.)

13. On these facts we are bound to imply a contract in law to pay rent at the same rate for future years. But the lower Court, however, finds that the rates of rent vary with the crop and the implied contract, therefore, is not that for dry lands rent at 5 1/2 fanams per kurukam shall be paid but that the rent shall depend upon the crop.' I now proceed to consider the reasons adduced in favour of this conclusion with reference to the pattahs which contain those stipulations not objected to by the defendants, leading to that inference.

14. No agreements or accounts of a date, prior to 1876, have been produced to show the nature or extent of the cultivation of dry lands, but in 1876 the estate appears to have been again under the management of the Collector and we have in evidence copies of some of the pattahs granted on behalf of the zemindar. The earliest of them (Exhibit X-d) recites the rent payable for punja at 5 1/2 fanams per kuruham, the rate established by the Collector in 1815. It also provides for the payment of tirra according to custom for second crop. This appears in Exhibit O also, the puttah now in dispute, and no objection is taken to it by the defendants. The second crop assessment stated to be payable by custom must have been, therefore, either expressly settled by the Collector in 1815 or if no special reference is made by him, it must have been for the reason that custom has fixed it in relation to the first crop assessment. No inference that the money rent was not fixed on the land but may vary with the crop can, therefore, be raised. Second crop assessment is levied by Government on ryotwari lands and I do not see how the case before us stands on a different footing. Both Exhibit X-d and Exhibit O make provision for the payment of a higher rate for vanpayir and this also is not objected to by the defendants. The District Judge relies upon this circumstance very strongly for his conclusion that the rate of 5 1/2 fanams could not have been intended as the rent without reference to the crops cultivated but should be treated as the rate only when the ordinary dry crops are raised. This argument would be weighty if the tirwa on vanpayir were fixed only after 1815 as it would then rebut the presumption otherwise raised by the settlement of the money rent in 1815, out as tirva was levied for vanpayir crops before 1815 it has little bearing on the scope of the subsequent arrangement to pay 5 1/2 fanams which was clearly subject to the prior tirva, agreement for those special crops. The two stipulations must be treated as the entire contract for payment of rent. It was also agreed by Exhibit X-d that if the ryot sinks a well or a tank for irrigating his punja the assessment is not to be increased but if he uses zemindar's tank water for paddy cultivation on punjai lands, he must pay waram. Seeing that the pattah was apparently intended to be exhaustive in its terms it may be inferred from this last provision that if paddy crop is raised on punjai lands otherwise than by using the zemindar's tank water the ryot is not to pay waram and that it is so is to my mind placed, beyond doubt by the prior provision that any increase of produce due to improvement as a tank or well made by a ryot is not to be a reason for any increase of assessment. That the punjai lands were not as found in this case cultivated with paddy crop in that year is immaterial. The ryot can cultivate them under the pattah without any additional payment if he does not use the zemindar's water.

15. I cannot, therefore, agree with the District Judge in his view that a contract ought not to be implied in the absence of any evidence of paddy cultivation during those years.

16. The pattahs in the succeeding years are to the same effect and when the punjai lands were cultivated with paddy crops only money rent was received though the attention of the lessee was drawn to the fact by his local officials. The conduct of the parties confirms, therefore, this view. The arrangement of 1815 explained by the pattahs, and confirmed by the admitted conduct of the parties in recent years shows, in my opinion, that there is clearly a contract for rent between the parties which must be enforced.

17. It has been strongly pressed upon us that the question of implied contract is one of fact and that it is not, therefore, competent to the High Court to interfere with the finding of the District Judge in Second Appeal and the cases of Sriparapu Romanna v. Malikarjuna Prasada Naidu and Bhupathi v. Raja Rangayya Appa Row 17 M. 43 ; Venkatanarasimha Naidu v. Ramasami 18 M. 2.16 and Lodali Brahmanna v. Rajah Rangayya Appa Row Bahadur 2 M.L.J. 292 have been referred to. In my opinion no such broad proposition can be laid down. In the Act the term 'Implied contract' is used in the sense in which it is used in English Law. It may be an inference of fact when we use the term as involving an agreement based on offer and acceptance. It may also be a question of law as it is the case here when the question depends upon inferences to be drawn from admitted facts or a number of documents, and comes within the rule laid down by the Privy Council in Lachmeswar Singh v. Monawar Hossein 19 C. 253 : 19 I.A. 48. See also Chockalingam Pillai v. Mayandi Chettiar 19 M. 485. The term also includes those cases where from the facts and circumstances the law itself implies a contract or rather imposes one upon the parties. Here the agreement is only a fiction of law and is devoid of any elements of request or assent. The liability is imposed by law or custom. In such cases the question of implied contract is a question of law.

18. In the case of this Ramnad zemindary where the first plaintiff's ancestors were practically rulers and the ryots men of his own or allied castes, where the intrusion of the Muhammadan Government from 1773 to 1780 was far too short a period to effect any lasting changes, we may safely assume that the parties did not occupy the position of landlord and tenant or owner and occupier, where in the case of any ryot, his relation to the zemindar is the offspring of contract between the parties the terms of the contract govern such relation; where it is not assuming that to be the case here, the law would imply a contract in favour of the continuance of the status quo or the existing state of things unless the plaintiffs are able to show (and they have failed in showing) that the payment of a fixed money rent was only a temporary arrangement or that the Collector in 1815 reserved to the zemindar a right to vary the rent in any contingency or that the customary incidents of the tenure entitled him to levy varam.

19. On the other hand, the fixed policy of the British Land Revenue administration to commute varam, into money rent and the fact that the substitution of a definite rent for the share of the produce is essential to improvement in agriculture suggest an intention on the part of the Collector to discontinue, if possible, varam absolutely land for ever.

20. I am, therefore, of opinion that there is an implied contract to pay at 5 1/2 fanams per kurukam even in the case of paddy cultivation. It was then argued that the Collector as trustee was not entitled to give up the varam system. I do not attach any weight to this contention as the arrangement has been in force for more than 80 years and accepted by the previous zemindars. It is not similar to the case of trustees granting leases on low and favourable rates. I world accordingly restore the Munsif's decree so far as it relates to Clause (3).

Boddam, J.

21. I agree.

22. The decree of the District Judge will be reversed and the decree of the District Munsif restored as modified above with costs in this and in the lower appellate Court.


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