1. The first question is whether Clause 4 of the pattah Ex. A includes mango trees. The clause runs thus: You have no connection whatever with the palmyrads, dates, babul and other (Vagaira) trees standing on the said lands.' We think it may be reasonably doubted whether fruit trees, like mango trees, can be properly said to fall within this clause. The term vagaira 'should, we think, be understood to indicate other trees of the same class as those previously specified and those are not generally looked upon as fruit trees. Support is given to the view by Ex. I, a, pattah granted to the defendant-appellant in Fasli 1301. There Clause 4 runs thus: 'You have no connection whatever with the palmyrad, date, babul, vagaira trees standing on the said lands. You can enjoy only the mango trees which you have hitherto planted.' We find, therefore, that mango trees are not included in Clause 4 of the pattah and a clause will be inserted in the pattah to the effect that the defendant is entitled to enjoy the mango trees planted by him.
2. The next question is whether the zemindar is entitled to levy the cess called 'Piratlavaru.' This is a cess intended to provide maintenance for the zemindar's purohit. The District Judge has found in favour of the zemindar because the defendant admits that he and the other ryots have been paying the cess for a long time. The cess in question is of much the same nature as the fee dealt with in Siriparapu Ramanna v. Mallikarjuna Prasada Nayudu 17 M. 43. It was held in that case that the duty to pay a fee to a temple is not an ordinary incident of the relation of landlord and tenant nor has it any connection with the jerayati tenure on which the ryot holds his land. Prima facie the contribution is voluntary and unless the fee is shown to be a charge on the land it cannot be treated as a payment which the zemindar can legally compel the tenant to make...moreover he may, at his pleasure, discontinue a voluntary payment although he may have made it for several years and there is nothing in this case to show that this fee is a charge on the land.' These remarks apply in our opinion to the present case and the question is, therefore, found in the negative and the cess must be struck out of the pattah.
3. This appeal is, therefore, allowed and the pattah will be amended as indicated and accepted by the defendant. The appellant will have his costs in this Court. In the Courts below the appellant claimed a right in all the trees though here he only pressed his case as to mango trees. The parties will, therefore, bear their own costs in the Courts below.