1. The question is, whether the zamindar is entitled to enforce acceptance of a pattah on which a condition has been newly inserted that 'in case the dry lands mentioned in this pattah are cultivated as wet lands, 'ambaram' (rent in kind) shall be delivered according to the village maumool'
2. The pattahs for the previous faslies show that the tenant was paying a fixed rent in money. The lands are classified in the pattahs as wet or dry. In the case of some lands a lump sum is fixed for rent, in the case of others the rate per acre is given.
3. There is nothing in the pattahs and no evidence is adduced to show that the rent varied with the crop or with the nature of the land; that it could be either increased or decreased according to the crop raised or with the conversion of land from dry to wet or vice versa. The zamindar relied upon usage in support of his claim. Both the Lower Courts have found that he has failed to prove the usage. The Judge, however, holds that under Section 11, Clause 2, of the Rent Recovery Act the defendant is bound to pay rent at the varam rate established for the village and the condition is, therefore, enforceable.
4. There are two objections to this course. The tenant has been paying a fixed money assessment for the lands and there is, therefore, an implied contract that it is the rent payable for future years. Section 11, Clause (2), of the Rent Recovery Act applies only in the absence of any such contract.
5. To make land which is cultivated with dry crops fit for cultivation with wet crops or, in other words, to convert lands from dry to wet is certainly to improve the land. In the words of the proviso to Section 11 of the Act, additional value is imparted to it, and it is now well established that a landlord is not entitled to enhance his rent on account of any such additional value, if the improvement is made by the tenant.
6. In this case the tenant contends that the land has been already improved by him at his own expense and the stipulation certainly enables the zamindar to claim a higher rent even when the tenant may improve the land at his own expense. It has also been held that even if a usage is proved to charge a varying assessment according to the kind of crop, it can only be upheld where the variation in the crop was not the result of improvements made by the tenant see Fisher v. Kamakshi Piliai 21 M. k136. This stipulation, therefore, must be omitted.
7. We accordingly reverse the decree of the District Judge and restore that of the Deputy Collector with costs in this and the lower appellate Court.