Sadasiva Ayyar, J.
1. One question is common to all these cases, namely, whether the defendant company, the proprietor of the Kannivadi Zamindari, is entitled in the pattas issued to its tenants to insert a term which makes the tenants liable to pay what is called in the pattas 'penal assessment' for a second crop raised on wet lands with the help of water from an irrigation source belonging to the Zamindari. I may at once state that such a vaguely worded obligation to charge what is called 'penal assessment' without mentioning the rate of assessment charged ought not to be allowed to be inserted in the patta. But I take it that the landlord charged one half of the usual wet rate of assessment for water taken for second crop, and attached the crops for the recovery of that amount along with the usual amount charged as wet rate for a single crop.
2. The question is whether the company is entitled to. so charge for the second crop. Having regard to Vaythenatha, Sastrial v. Sami Pandither I.L.R.(1881) Mad. 116, Thayammal v. Muttia I.LR.,(1887) Mad., 282, and Venkata Rao v. Vaithilinga Udayan : (1902)12MLJ22 , I think the landlord is prima facie entitled to claim such an additional rent provided it is not against any established custom of the estate or express or implied contract between the parties. I think it follows from the principles laid down in those cases that the burden of proving that there is such an established usage or implied or express contract lies upon the tenants. There is evidence in these cases to show that there was no such established usage or express or implied contract till about fasli 1252, as I find that the Government when it was in management of the Zamindari between faslis 1226 and 1252 charged extra assessment for kodai crops in several of those faslis, Kodai crop, according to Nelson's Madura District Manual (see Glossary at the end of the book) means:
extra crop of rice raised either before or after the principal or kalam.
According to Winslow's dictionary Kodaibhogam means.
the crop grown in the hot season; the produce of cultivation in the hot season.
3. It is also admitted that for betel and other crops which can be raised only with the use of an extra quantity of water such excess assessment has been levied and paid all along, even after fasli 1252. The learned District Judge has approached this question of the right of the Zamindar from a wrong point of view, as he says in paragraph 8 of his judgment (in the case against which Second Appeal No. 514 of 1919 has been brought), as follows:
As the custom of levying such a rate is not established though there is a custom to levy extra for betel, etc., I think I must hold that the landlord had not the right to enter the clause as to second crop in the patta.
4. Thus he throws the burden of proving a custom to levy second crop assessment on the landlord though in the previous paragraph the Judge admits that such a levy is a reasonable and proper demand on the ryots. No doubt, if the defendant proves that to the knowledge of the landlord he has been raising second crops on his wet land for 50 or 60 years and has not been charged additional assessment, it may be some evidence that a usage has sprung up afterwards, after about fasli 1252, by which such extra assessment was not to be levied for second' crop though it may be levied for betel, etc., crops. Even then it would not be evidence of a very strong character as it is negative evidence. But still the Court might be entitled to consider it in arriving at its conclusion on the question whether such a custom not to charge has been established. But, as I said, the District Judge has not considered the evidence in that aspect. He has assumed that it was for the defendant to establish that a custom to charge second crop assessment for paddy raised as a second crop prevailed. I would, therefore, remand all these cases for a finding on the question whether by usage or implied contract, the landlord is not entitled to charge extra assessment on a second crop of paddy raised with the Zamindar's water by the tenant on the tenant's wet holding.
5. Then there are nine suits (out of which Second Appeal Nos. 817 to 825 have arisen) which were dismissed by the learned District Judge on the ground that the plaintiffs in those suits were not registered pattadars and have not established that they are the heirs of the registered pattadars.
6. As regards one of them, that is, the suit out of which Second Appeal No. 817 of 1919 has arisen, the land holder states in the first paragraph of the written statement that the first plaintiff's father was the person who took water from the defendant's irrigation source for his second wet or kodai crop. The first paragraph seems to assume that; the first plaintiff's father was the registered pattadar. Though the landlord under Section 146 of the Madras Estates Land Act is not bound to recognize a transfer by the act of the ryot or even in execution of a Civil Court's decree or by the act of a public officer exercising statutory powers of sale, unless both the transferor and transferee give notice to him in writing or the decree or order of the Civil Court establishing the transfer or the sale certificate of a public officer evidencing that transfer is produced, so far as transfer to the heir from the registered pattadar by operation of law is concerned, there is nothing in the Act which absolves the Zamindar from the duty of recognizing such a transferee as the ryot who holds the land under the landlord in succession to the deceased ryot.
7. If, therefore, any tenant plaintiff in any of these suits contends that he is the heir of the registered pattadar the question whether he is such an heir ought to be gone into by the Lower Appellate Court, and if that is established or admitted, the suit must be held to be competent, brought by a ryot entitled to be recognized as such for the purpose of proceedings taken under the Estates Land Act.
8. It has been contended by Mr. Devadoss that the landlord has received rent in previous faslis from these plaintiffs. The mere receipt of rent due upon the holding from any person cannot bind the landholder to recognize that person as the 'ryot' holding under him, as that person might be merely the agent or servant of the ryot. Unless the person paying the rent has been recognized by the landlord as ryot by the acceptance of a muchilika from him, he is not (though he claims to be a transferee from the registered ryot) entitled to bring a suit under Section 112 of the Madras Estates Land Act for setting aside attachments as he cannot be a 'defaulter' under the Act, that is, a person who owes 'rent' and who has made 'default' A clear distinction is made in Sections 101,128,129 and 131, between the person who is strictly the 'defaulter' and 'those who, without being defaulters may, as mere 'cultivators' or even 'owners' or 'sub-tenants' having interests in the holding, to entitled to pay the money due by the defaulter, so as to protect their interests. On the analogy of Subramania Chetty v. Mahalinga Swami Sivan (1909) 19 M.L.J., 627 (though it was decided with reference to the cases of defaults of Government revenue under Madras Act II of 1864), I hold that the expression 'defaulter' in the Estates Land Act denotes only the man who is the registered pattadar; or the heir of the registered pattadar, or the person whom the landholder has become bound to recognize by reason of the provisions of Section 146. With these observations, these cases also are remanded for findings on the following point: Whether the plaintiffs in these suits are registered pattadars or heirs of the registered pattadars or persons whom the landholder is bound under Section 146 to recognize as ryots of the holdings in question.
9. Further evidence may be adduced on both sides on the points on which the findings are required.
10. I agree.
11. [In compliance with this Order the District Judge of Madura submitted findings that no usage or implied contract was proved which disentitled the landlord from claiming extra rent for second crop of paddy raised with the landlord's water; and that the tenants in some cases were proved to be either registered pattadars or their heirs, and in other cases there was no proof that the tenants were registered pattadars or their heirs or persons whom the landholder was bound under Section 146 of the Act to accept as tenants.]
12. These Second Appeals came on for final hearing before Wallis, C.J., and Spencer, J., who delivered the following Judgment:
13. We accept the finding and allow appeals Nos. 514 to 560 and 562 to 564 of 1919. In Second Appeals Nos. 514 to 556 of 1919, we dismiss the suits with costs, throughout, and in Second Appeal's Nos. 557 to 560 and 562 to 564 of 1919, we modify the decree of the Lower Appellate Court, by restoring the clause in the original patta as to second crop.
14. The respondents to pay the appellants' costs.
15. In Second Appeals Nos. 817 to 825 of 1919, we dismiss the Second Appeals with costs. We allow a fee of Rs. 5 in each of the 59 cases.