1. The facts of these Second Appeals are as follows: The plaintiffs are Dharmakarthas of Sri Venkateswaraswami Temple in Kadapperi Village in Chin-gleput District, to which temple the suit village belongs as Shrot-riem. There is no question in the case that the Shrotriem is not an estate. The litigation has proceeded on the footing that it is an estate. The suits were brought by the plaintiffs under Section 56 of the Estates Land Act for the acceptance of pattas and the execution of corresponding muchilikas. The pattas contain a new clause as compared with the former pattas. The additional clause runs thus:
Since for raising second or third cropsi on the single crop nanja land among the lands referred to in paragraph 1, and for raising first, second or third crops on the poramboke varappathu nanja lands, they have to be irrigated with the Madurantakam tank water, and since the Government charge the Shrotriem office, water-cess at the rate of Rs. 4 per acre for the first crop, Rs. 2 for the second crop and Rs. 2 for the third crop, you shall pay the amount of that water-cess together with merai, road-cess, etc.
2. The necessity for the insertion of this new clause in the suit pattas tendered for fasli 1331 arose thus : The suit lands have been irrigated for a long time by the water of the Madurantakam tank which is a source belonging to Government. In Srinivasa Aiyangar, J.'s referring judgment it is said:
There has been not even a suggestion in this case of a work of irrigation or other improvement having been executed at the expense of Government. The Madurantakam tank is conceded to be an old tank.
3. But my brother Jackson, J., observed in the course of the argument that the tank was constructed by a Collector named Mr. Plaice. We must take it therefore that this was a work executed at the cost of the Government, but the Government charged no water rate up to fasli 1331. In or about that year the Government carried on a mamul wet survey, that is, a survey for the purpose of determining how much of the lands of suit village were entitled to water from the Government source free of water rate and if it is found that some lands are not entitled to water free of charge to take steps to impose water-cess under the Irrigation Cess Act, VII of 1865. The lands found to be entitled to water free of charge were presumably entitled to be so with reference to the engagement in the inam title deed. The result of the survey was that some of the lands in the village were found entitled to water right but others were not. In the case of those others the Government imposed water-cess at the rate of Rs. 4 for the first crop, Rs. 2 for the second crop and Rs. 2 for the third crop, and collected the amount from the landholders, the plaintiffs. The object of the new, clause is to make the tenants liable to pay the amount of water-cess so collected from the landholders. It is not clear from the facts of the case in any of the judgments whether the mamul wet lands are localized; if they are not localized, there is some difficulty in the way of the landholders which it is unnecessary to discuss. But probably they are; at any rate, the case has proceeded on that footing. If they are localized, it is obvious that the landholder is entitled, if not to the whole, at least to a reasonable proportion of the new burden which has fallen on the land, and it is for the purpose of providing for some contribution by the tenants towards this burden that this clause is now inserted. The point referred to us is whether this therefore amounts to enhancement of rent within the meaning of Section 24 of the Act, but incidentally, the question arises, whether this adjustment on account of the imposition by the Government of water-cess cannot be made by way of amendment of a clause in the patta, but should be made by an application to the Collector under Section 30 of the Act for a reasonable enhancement of the rent. It is argued that these tenants' holdings are like the holdings of mamul wet tenants in the villages. Both contracted to pay the same rates from the beginning and if these tenants are made to pay more, It amounts to an enhancement of rent. But this argument involves a fallacy. The assumption with which it starts, namely, that these tenants' holdings are like the holdings of the mamul wet tenants, is not true. Such an impression has no doubt been created by the fact that for a number of years the Government allowed all the tenants to use the water of the tank indiscriminately and woke up to the need for a mamul survey only recently. But this is merely an accident. If the mamul survey has been made immediately after the tank was constructed, those holdings which are entitled to water free of charge would have so got them. But the others would not have got water without payment; so that though the nature of the land, the soil, crops and everything else may he similar, in respect of this matter they are not similar and the suit lands would have had to bear the burden of water-cess from the beginning. Whether all of it would have fallen on the tenant or not, or a reasonable distribution would have to be made, is another matter. That some portion at least of this should be borne by the tenant also there cannot be the smallest doubt. If the construction of the tank was followed immediately by mamul survey and rents were fixed, the rents imposed upon the tenants would have included some proporation of such water-cess collected from the landholder by Government, unless the water-cess is directly paid to Government by tenants. The fact that it took some time for the legal rights of the holdings to be determined and that they are determined now can make no change. It only shows that the landholder and the tenants contracted under a mutual mistake as to the nature of the land and under that mutual mistake they acted all these years. But on the discovery of the mistake, the proper rent in respect of the land is as I have indicated above. Thus, however much one may be inclined to say that such payment to the landholder to reimburse him in respect of the water-cess paid by him to Government is rent within the meaning of the definition of rent in the Act, it is certainly not an enhancement of rent within the meaning of Sections 30 and 24. The rate of rent which I have described above is the proper rate of rent to be borne by the holdings from the time when the tank was constructed and the lands were cultivated as wet lands. In this respect I am unable to distinguish the present case from the decision in Battina Appanna v. Sreemanthu Raja Yarlagadda Venkata Ramalinga Bahadur Zamindar Garu : (1917)33MLJ355 . I may here observe that all the decisions under the Rent Recovery Act are not useful for discussion in the present case as the machinery provided in the two Acts is somewhat different. In the case just cited it was observed:
We do not think that an extra payment due for additional advantage is necessarily an enhancement. Where new circumstances have come into existence which require new adjustment, there is no question of enhancement. I may observe that in this case there were no new circumstance or new enhancement. As I have already said, assuming that the lands were converted into wet lands soon after the tank was constructed and if the mamul survey had been then made, this is the rate which the lands would have been liable to pay from the very beginning. As to comparison with the rates of rent prior to the construction of the tank we have no means of such comparison because we have not got the pattas prior to that period.
4. The decisions in Arunachallam Chettiar v. Maingalam ILR (1915) M 640 : 1915 31 MLJ 168, Venkatachalam Chetti v. Aiyamperumal Tevan : (1919)37MLJ248 and The Midnapore Zatnindari Company, Ltd. v. Muthappudayan ILR (1920) M 534 : 40 MLJ 213 show that the charging of additional rent when a certain contingency happens falls within the principle of Battina Appanna v. Sreemanthu Raja Yarlagadda : (1917)33MLJ355 namely, when circumstances require new adjustment and support the above conclusion. One observation I wish to make is that whether the view I have expressed is or is not correct, it is not an enhancement to which Section 30 of the Act would apply. Section 30 applies only to enhancements which might be regarded as permanent at the time of the application, that is, as continuously operating in the future as far as one can see until some new circumstances arise which require another enhancement or reduction, but not to cases where it is known the conditions may be constantly fluctuating.
5. In such a case there can be no permanent enhancement of rent, nor can there be a contingent decree for enhancement of rent. Such adjustment of rent to meet the fluctuating circumstances must therefore fall within the principle of Battina Appanna v. Raja Yarlagadda : (1917)33MLJ355 if at all. If it does not so fall, the result would be that the landholder would be remediless and then there would be an urgent case for the interference of the legislature because a more inequitable circumstance from the point of view of the landholder cannot exist. For it must be remembered that the tenants are not bound to apply for water for any crop or for some of the crops and even if they always apply the Government is not bound to give. So long as this uncertainty exists there is no guarantee that we have come to a permanent state of things; and so long as the uncertain condition exists, the only way to meet it is to have a clause like the one in this case.
6. My reply to the question referred is in the negative.
7. I think it essential, in this reference, to adhere strictly to the terms of the reference. The question referred presupposes that the landholder is endeavouring to surcharge on the tenant, in the name of ' rent', the exact amount of water-cess recovered from him by Government, for Government water taken by the tenant. Speaking for myself, I own considerable doubt, which is evidently shared by one of the learned referring Judges, whether such a claim by the landholder on the tenant is a claim for ' rent' as denned in the Madras Estates Land Act, and there is authority for this view in The Rajah of Venkatagiri v. Vudutha Subbarayudu (1907) ILR 30 M 277 : 1907 17 MLJ 145 and Surya Row v. Seetharamayya (1910) 8 MLJ 363. The landholder- is a mere collection agent for Government and it is difficult to see how what does not really go into the landholder's pocket is rent. I do not regard Section 30(iii) as standing in the way of this view. That section will permit the landholder to enhance the rent, i. e., to increase the rate of rent which he has hitherto charged on the land as a quid pro quo for some improvement effected for the land, but that increase need not bear any necessary relation to the additional revenue which Government has imposed on the landholder. That section does not say that the rent shall be enhanced by the amount of that additional revenue. That imposition of the additional revenue is simply a necessary condition which will justify an increase of the rate of rent already being paid. Section 30 (iii) seems to me a variant of Section 30 (ii), i.e., the improvement executed at the expense of Government is really executed at the expense of the landholder, because Government is charging him additional revenue therefor. If the landholder's claim then is not a claim for rent at all, it cannot be regarded as an enhancement of rent.
8. Assuming however that this claim is a claim for rent, I agree with my learned brother that it is not an enhancement of the existing rent, unless it is increasing the rates of rent as determined by the terms of the original contract, and that it is clear that the payment or apportionment of this new Government water charge was not present to the minds of the contracting parties at all when the rates of rent were fixed. In the case of a tenant who now uses Government water for the first time, I am satisfied that any additional charge made upon him by the landholder in consequence of a charge imposed on the landholder by Government for the use of this water would not be an enhancement of the existing rates of rent. It is an additional charge for additional facilities supplied to the land. That being so, I do not see how such a charge becomes an enhancement merely because there was an omission to charge it when the water was first taken. The original contract rights have not been interfered with or curtailed in any way. I do not wish to be understood as expressing any opinion whether the clause relating to this charge can be properly inserted in the patta or not. That is not part of the question referred to us and I prefer to express no opinion on that matter.
9. I answer the reference in the negative.
10. The question referred to us is in effect whether when a ryot takes water from a Government tank, and for the use of such water the landlord inserts in the patta an additional charge, such charge is an enhancement of rent as contemplated by the Estates Land Act.
11. Rent under Section 3 (11) of the Act includes whatever is payable on account of the use and enjoyment of water taken for cultivation of land. Therefore this charge for water would appear to be rent, and presumably the landlord would not have inserted it in his patta unless that were his opinion.
12. The question then remains whether such charge is an enhancement of rent. The parties had agreed that the tenant should enjoy his holding at a certain rate set forth in the patta, and when some amount is added to this sum already agreed upon, I think it can only be regarded as an enhancement of rent. It is very analogous to the enhancement mentioned under Section 30 (iii) 'to enhance the rent on the ground that a work of irrigation has been executed at the expense of Government and the landlord has been lawfully required to pay in respect of the holding an additional revenue or rate to Government in consequence thereof.'
13. That the enhancement may vary from year to year or even not be imposed at all, does not to my mind, make it any the less an enhancement. A proper patta should contain the full rate that may legally be imposed, though it may happen that the landlord is in some years entitled to less if certain conditions are unfulfilled. If in some year the ryot has not taken the water, the landlord may not be justified in charging for it; but when he is so justified, his charging the full rate will be tantamount to an enhancement of the lawful rent if the patta does not already contain the maximum rate as one of its possible charges. It cannot, I think, be said that the lawful rent only comprises such items as are constant, and independent of circumstance, and any additional charge made owing to increased facilities enjoyed in any one year is no enhancement of rent. That would seem to be contrary to the intention of Section 30.
14. In The Manager to the Lessees of the Sivasankara Zamindary v. Chidambaram Chetti ILR (1913) M 524 it was held that if the rent was enhanced according to a clause already embodied in the patta providing that additional rent would be paid for increased area, then there would be no need for the landlord to invoke the aid of Section 42 (1) (a) or for the Collector to settle the dispute under Section 42 (2).
15. Following that principle it was held in Battina Appanna v. Raja Yarlagadda : (1917)33MLJ355 that, where new circumstances have come into existence which require new adjustments, there is no question of enhancement. The idea would seem to be that if the patta already contains a proviso that, if certain circumstances come into existence the rent may be newly adjusted, then such adjustment is no enhancement. But what if the patta contain no such proviso? Is it to be said, for instance, that, where the patta merely contains a dry rate, the landlord may add as a proper insertion an enhancement by way of wet rate because such new adjustment is owing to new circumstances having come into existence. That interpretation appears to me to run entirely counter to Chapter III and the whole spirit of the Act. But this is the case followed in Venkatachallam Chetty v. Aiyam Perumal Tevan ILR (1919) M 702 : 1919 37 MLT 248 (besides cases under the old Act of which the wording is different). The landlord was claiming as rent a charge for water taken to dry lands which had been let to the tenant on dry rates with no provision in the patta for any additional charge if water was taken. It was held that such a charge was rent within the terms of Section 3 (11) and that it was a charge in excess of the prior dry rent; but nevertheless it was not an enhancement. I do not follow this reasoning. It may be, as observed lower down, a reasonable and equitable charge, but none the less it is an enhancement. Suppose that the tenant has a dry holding and the landlord, after constructing a tank, proceeds to charge additional rent because the productive powers of the land have been increased, is it to be said that this is no enhancement of the rent; and if it is no enhancement why is the landlord forced to sue in such circumstances under Chapter III of the Act? But if it be conceded that this would be an enhancement, is it not equally an enhancement if the tenant of the dry land takes water from a tank previously constructed and is charged an additional rent on that account. This is the difficulty which was present to the mind of my learned brother, Curgenven, J., and I confess to feeling its force. The Midnapore Zemindary Company, Ltd. v. Muthappudayan ILR (1920) M 534 : 1920 40 MLJ 213 is to the effect that if the previous patta contains an implied contract that a charge for water shall be levied according to custom, the explicit statement of that contract in the patta, is no enhancement. That hardly bears upon the present question, for no such implied custom is set up.
16. I entirely agree that the rent of the previous pattas would have been higher if from the first it had been understood that the tenant was taking water for the use of which the Government would charge the landlord. But, if, when that mistake is discovered, the landlord attempts to increase the rent, it appears to me to be a clear enhancement though a justifiable enhancement. The old rate may not have been the proper rate; but the proper rate is only reached by way of enhancement.
17. I would therefore answer the question referred to us in the affirmative.