1. These appeals arise out of suits filed by the appellant, the Zamindar of Devakota who is a landholder under the Estates Land Act, for recovery of rent against several tenants in his estates in the village of Endakuduru. The lands comprised in the holdings of the defendants were dry, mamool wet, and bapat wet. The landholder claimed assessment at the rate of Rs. 1-7-0 for dry lands, Rs. 5-13-0 for mamool wet and Rs. 2-12-0 for bapat wet lands. The Deputy Collector decreed the suits as prayed by the plaintiff. But on appeal the learned District Judge has modified the rate as regards bapat wet lands for which he has awarded at the rate of Rs. 1-7-0 per acre, i.e., the rate pertaining to dry lands.
2. From the evidence on record it appears that the lands now described as bapat wet lands were originally dry but were converted into wet lands when they could be irrigated with the aid of the water from the Krishna Anicut. It is not suggested by the landholder either in the plaint or in the evidence that anything was done by him either before or after the Estates Land Act to enable the lands being cultivated with wet crops. The irrigation system admittedly does not belong to the Zamindar and the Estate's Zamindar is not able to suggest any improvements made by the Zamindar in respect of the lands now in suit. However it appears that there was an attempt on the part of the proprietor to levy an enhanced rate of rent in respect of these lands which, though originally dry, could after the introduction of the anicut system and the excavation of the connecting irrigation channels, be cultivated as wet. We find in certain muchilikas filed on the side of the plaintiff a clause providing enhanced rate of Rs. 2-12-0 per acre if wet crops were raised on the dry lands and another clause which says that in respect of dry bapat lands and the dry crops for which water will be taken from the anicut the ryot shall himself pay to the Government the water theerva which the Government may fix for them. It is also alleged by the landholder that for a continuous period of over thirty years the ryots have been paying without demur the enhanced rate for these bapat wet lands. He has not filed either the receipt counterfoils or collection accounts to show that actually the tenants had been paying the enhanced rate. Instead of following this obvious course he is rest content with an alleged admission in the written statement and in the evidence of the witnesses for the defendants that this enhanced rate was being paid.
3. The learned District Judge held that the evidence adduced by the plaintiff did not warrant him to imply a contract to pay the enhanced rent entered into before the passing of the Estates Land Act. It is quite true that if it is established that there was a valid enforceable contract between the landholder and the ryot in respect of the rate of rent of a particular holding which was in existence before the passing of the Estates Land Act such a contract would be enforceable notwithstanding the passing of the Estates Land Act and notwithstanding that, its provisions are inconsistent with some of the provisions of the said Act. But the most important condition which the landholder will have to fulfil is to establish not merely an agreement which may be inferred from a long continued course of payment at a particular rate but an agreement supported by lawful consideration.
4. As I have already mentioned, the landholder is not in a position to even suggest a possible consideration for the enhanced rate. His learned advocate merely falls back on a presumption of fact arising from a long course of payment at the enhanced rate. Assuming in his favour that he has established the fact of such payment, as to which I entertain considerable doubt, I am clearly of opinion that in this case, having regard to the other circumstances which certainly will have to be taken into account in arriving at a conclusion on this point, it is impossible to presume consideration for any agreement to pay enhanced rent. The learned advocate strongly relied on the decision of the Full Bench in Periakaruppa Mukkandan v. Raja Rajeswara Sethupathi (1918) 36 M.L.J. 320 : I.L.R. 42 Mad. 475 for the position that a Court can presume a contract to pay a higher rate of rent and a legal origin and consideration for it from a long continued payment of the higher rate. But I do not consider that the learned Judges in that case ever laid down that no circumstance other than long continued payment should be taken into account for arriving at a decision on the question whether the landholder was validly entitled to claim the higher rate. The learned Judges who formed the majority clearly lay down that if there be other evidence, that is, evidence other than continued payment of the higher rate, a Court cannot make any such presumption from such payment alone. It then becomes a question of fact on which a Court should give a finding, taking into consideration all the relevant circumstances and evidence on record. That this is the effect of the ruling of the Full Bench is also pointed out in Sri Raja Bommadevara Chayadevamma v. Venkataswami (1931) 62 M.L.J. 511. I respectfully agree with what fell from Anantakrishna Aiyar, J., in that case at page 524.
I do not understand any reported decision to lay down broadly that, even in the presence of other circumstances which may go against any presumptions that the Court would ordinarily be inclined to draw from the circumstance that the same state of things is shown to have continued for a long number of years, that the Court is bound to raise a presumption that there was a lawful origin for the same.
In Raja Jagaveera Rama Venkateswara Ettappa v. Arumugham Chetti (1918) 36 M.L.J. 49 : L.R. 45 J.A. 195 : I.L.R. 43 Mad. 174 (P.C.) their Lordships of the Judicial Committee point out that unless there is a valid contract, that is, an agreement supported by consideration, the fact that tenants for long periods have been paying at a higher rate would not itself entitle the landholder to enforce that right when objection is made.
5. In this case, as I have already pointed out, the circumstances appearing from the record do not give any room for presuming a valid contract, that is, an agreement supported by consideration to pay this higher rent. As decided in Srimathu Mallikarjun Prasad Naidu Bahadur v. Subbayya I.L.R. (1911) Mad. 4 even under the Rent Recovery Act the landholder would not have been entitled to levy the enhanced rent when dry lands were converted into wet by a channel constructed and maintained solely by Government. It follows that even if there was a levy by the landholder in this case prior to the passing of the Estates Land Act such levy would have been illegal and surely the passing of the Estates Land Act cannot make it legal.
6. There are no grounds to disregard the finding of the learned District Judge that the landholder is not entitled to charge more than Rs. 1-7-0 per acre for the bapat wet lands I find that in another batch of second appeals from the same village (S.A. Nos. 181 to 195 of 1944) my learned brother Chandrasekhara Aiyar, J., has taken the same view.
7. These second appeals are therefore dismissed with costs. Vakil's fee Rs. 15 in each case. Leave refused.