1. The landlord in these suits under the Madras Estates Land Act appeals in respect of three items, namely, Vanpayir, (2) Pada Nazzar,(3) Vagaira,
2. On the first point, we think that the District Judge was in error in regarding the provisions of Section 13 (3) of the Act as precluding him from finding, from the payment of higher rate for a long series of years prior to the passing of the Act, that an implied contract existed to pay at these rates in future. It was decided in Venkata Perumal v. Ramudu 27 Ind. Cas. 688that Section 13 applied to improvements made after the new Act same into force and had no retrospective effect. The Judge has referred to the fact that the Jamabandi accounts and Pattas show that these special rates have been paid since 1330, and we must now ask him to find as a question of fact whether the payments made by each of the tenants concerned in these appeals have been continuing for such a length of time that it may be properly presumed that they are based on an agreement between the parties and that there must have been some consideration for that agreement. We do not follow the judgment of the learned Judges that decided Arunachelum Chetty v. Syyad Ahamed Ambalam (1916) 1 M.W.N. 287 so far as they expressed an opinion that consideration for agreement implied from payments for a number of years must depend on independent proof for its existence and cannot be presumed from the same facts as the agreement itself. [Vide Prayaga Doss Jee Varu v. Venkama Naidu 44 Ind. Cas. 641 : (1918) M.W.N. 346]
3. On the second point, the District Judge has found that Pada Nazzar was not a part of rent, there is evidence to support his finding and the name itself suggests that it is a payment of the description referred to in Section 143, rather than in Section 3 (11) of the Act. We think this was rightly disallowed. On the last point it has not been shown that any crops other than those described in Clause 9 of the Patta were grown in the suit Faslis and, therefore, the omission of the word 'va-gaira' in the Pattas for that Fasli is immaterial. The clause as amended by the lower Court may stand in the present Patta.
4. Finding on the first point is to be on the evidence on record and is to be returned within two months. Ten days will be allowed for filing objections.
5. In compliance with the order contained in the above judgment, the District Judge of Ramnad at Madura submitted the following
1. I am directed to find as question of fact 'Whether the payment made by each of the tenants concerned in these appeals have been continuing for such a length of time that it may be properly presumed that they are based on an agreement between the parties and that there must have been some consideration for that agreement.'
2. Both the presumptions referred to in the issue are presumptions of fast and as observed by their Lordships in Prayaga Doss Jee Vatu v. Venkama Naidu (1918) M.W.N. 346, 'there is no principle by which Courts are to be enabled to make the one presumption and disabled from making the other', and 'the consideration may be of the same implied nature as the covenant to pay (tm) Before referring to the evidence adduced in the cases before me, it may be useful to quote another important observation of their Lordships in the said second appeals that 'the distinction between contract rates and customary rates is a very subtle one as between landlords and tenants' and that 'the facts and the evidence to prove a contract, where the contract is a very old one, are almost the same as those on which a custom to pay enhanced rents has to be proved, if such a custom is valid.' *
3. Now, we have three tenants concerned. in these cases. One of them holds Pattag Ncs. 457 and 41. Patta No 457 corresponds to old Pattas Nos. 266 and 372. Exhibits XI, X[ (a) and XI (b) are Muchilikas for Faslis 1292, 1299 and 1300 respectively. Exhibits A to A(6) are Pattas for Pattft No. 266 for Faslis ranging from 1305 to 1317. Exhibits B to B (2) are Pattas for Pattadar No. 372 for Faslis 1310 to 13 2 Exhibits XI (c) ad XI id) are Muohilikas for recent Faslis 1319 and 1320. It will be noticed that the earliest of these documents relates to Fasli 1292 (1882 83)
4. Another tenant is concerned with Patta No. 150 and the documents XVII (a) and XVII (6) are for Faslis 1305 and 1306. They are the earliest Faslis for which Pattaa and Muchilikas are produced.
5. The third tenant holds Patta No. 433. In respect of his holding, the earliest Muchilika produced is for Fasli 1291
6. These documents would show that in the case of two of the tenants, Vanpayir rates have been levied for over thirty years, and in the case of the other for about twenty years. This does not mean that Vanpayir rates were not levied earlier. Defence witness No. 1 proves a number of old Jamabandi accounts, which show that cropwar assessment was levied in respect of lands in the village for a long series of years commencing so early as 1830. Defence witness No. 2 swears that the several cropwar rates deposed to by him are very old rates and have not been subject to any changes within his knowledge. In fact prosecution witness No. 1 speaking on behalf of himself and of the other tenants deposed that 'we have been paying special rates for Vanpayir,' The tenants object to those rates now merely because they have been advised that there has been a change in the law in their favour. Bat for this impression, this dispute would not have arisen either in these cases or in the numerous other oases which have recently come up before the Courts in this District. In fact it was accepted in the lower Court as an undisputed fast that the tenants were paying these special rates from time out of memory. If the fact of payment was in itself a matter of dispute, the landlord would have put into Court a much larger quantity of documentary evidence in support of his claim. Even as the evidence stands now, I think it establishes the landlord's claim, I would, therefore, return a finding in the affirmative on the issue remitted by the High Court.
These second appeals and the memorandum of objection coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following.