1. We accept the finding of the District Judge on the first issue.
2. On the 2nd issue the learned Judge was asked to record a finding as to the rate of rent in accordance with the provisions of Section 11 of Madras Act, VIII of 1865.
3. In his finding, as we read it, he holds in effect that the rate of rent cannot be determined according to the rates established or paid for neighbouring lands of similar description and quality. Having so held, he decreed such rate as appeared to him to be just.' The question is, was it open to him under the provisions of Section 11 to do this? In our opinion the power conferred by the second paragraph of the proviso to Clause III, is not controlled by the first paragraph of the proviso and the power of the Court to assess a 'just' rent is not limited to cases where a rate has been determined under Clause III, and one of the parties was dissatisfied there with, and a claim that the rent should be discharged according to the waram has been made. As according to the finding it was not suggested that there was any waram as defined in the section applicable to punja lands, we think we are warranted in holding that the waram could not be ascertained within the meaning of the section, and in this view, we hold that the learned Judge had jurisdiction to decree a 'just' rent. The section is inartistically drafted and by no means easy to construe, but any other construction than that which we have adopted would bring about a dead-lock. We are not prepared to say that the rent as decreed by the learned Judge was not a 'just' rent and we accordingly accept the finding on the 2nd issue.
4. We agree with the Courts below that the provision in Clause 2 as to the tenant's liability to compensate the landlord for loss by theft and the provision in Clause 6 as to payment by the tenant of superintendent's fees were not such as the tenant was bound to accept.
5. The result will be that the decrees of the lower appellate Court will be modified in accordance with the findings. Each party will bear his own costs in this and in the lower appellate Court.