1. The suits are brought to enforce acceptance of pattas which were tendered by the plaintiff to his tenants. The main contention is as to the rate of Rs. 3-3-0 per acre which is entered in the pattas as payable on dry lands converted into wet by means of Kistna water.
2. The Judge has found that till fasli 1278 the village was entirely under dry cultivation and the sharing system was in force. In fasli 1279 the money rent system was introduced and it was agreed between the parties that the ryots were to pay a rent of Rs. 27-4-0 per khatti, and in the event of the ryots cultivating dry lands with wet crops by means of Kistna water without the zamindar's permission they were to pay Rs. 100 per khatti.
3. The pattas produced by the zamindar for fasli 1300 contain this stipulation and they also state that the right of cultivation should be relinquished if the lands are cultivated without such permission. Following the decision in Appa Rau v. Ratnam I.L.R. (1890) Mad., 249 , the Judge has expressed his opinion that this stipulation was penal and unreasonable. It was the plaintiff's case that the question of the settlement of wet rates, if cultivation of wet crops was effected by means of Kistna water, was reserved until such cultivation actually began. The Judge has held that the plaintiff has failed to prove such reservation. In 1897, the ryots executed muchilikas for five years in which they agreed to pay Rs. 3-3-0 per acre for bapat wet lands, i.e., for dry lands cultivated with wet crops not only for the period of five years but also subsequent to it. The wet crops are raised with the aid of water from Kistna channel constructed and maintained solely by Government and it is contended that therefore there is no consideration for this agreement. The Judge has upheld this contention. It is argued by the appellant's pleader that this was an adjustment of disputes between the parties. But it is found as a fact by the Judge that there were no disputes, and Exhibit IV series which, it is alleged, prove that there were disputes only show, as pointed out by the Judge, that these lands were not to be cultivated without the permission of the zamindar. We are therefore unable to agree with the appellant's pleader that this rate was agreed upon to avoid future disputes. It is then contended that She landlord is entitled to revert to the sharing system, and the parties could properly agree to a fixed rate for the future in lieu of a fluctuating varam. There is however nothing to show that the plaintiff is entitled to claim varam in the absence of this stipulation. We have already stated that the reservation at the time of the agreement of fasli 1279 has not been proved, nor is it proved that the rent of Rs. 27-4-0 was to be payable only when the land was cultivated with dry crops. It has been repeatedly held that the proviso to Section 11 of the Bent Recovery Act precludes the zamindar from enhancing the rent except under the conditions laid down by that section. See Venkatagiri Raja v. Pitchana I.L.R. (1886) Mad., 27, Fischer v. Kamakshi Pillai I.L.R., (1898) Mad., 136 , Gopalasami Chettiar v. Fischer I.L.R., (1905) Mad., 328, Arumugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa I.L.R., (1905) Mad., 444, Suppa Pillai v. Nagayasami Thumbichi Naicker I.L.R., (1908) Mad., 19, and Paramasawmi v. Pusala Thevan : (1910)20MLJ142 , and if any rent under the sharing system is in effect higher than the money rent now being paid by the defendant it would, in our opinion, be clearly an enhancement of rent under Section 11 of the Rent Recovery Act. Mr. Anantakrishna Aiyar contends that the landlord has by this agreement precluded himself from applying to enhance the rent under that section. It is enough to say that neither of the conditions which give him a right to apply exists in this case; the improvement was not made by the landlord, and he has not been required to make any additional payment to Government; there is no such right in him to apply which he has given up. There was thus no obligation on the part of the tenant to pay any higher rent. Any agreement to pay such rent is unsupported by any consideration and is therefore not enforceable. As to the cases cited Suppa Pillai v. Nagayasami Thumbichi Naicker I.L.R., (1908) Mad., 19 is a case where money assessment was substituted for varam and a provision that the tenant must pay an increased rate for certain cultivation may not be an enhancement, if it was in the power of the landlord to claim the higher rent in varam in the absence of such stipulation. In Second Appeals Nos. 1121 to 1125 of 1908 the learned Judges held that the plaintiff was entitled to revert to varam, and the agreement to pay the money-rent in lieu of that varam was therefore upheld. A contract may be enforceable, as pointed out in that case, though the effect of it may amount to an enhancement of rent without the Collector's sanction. But a contract involves consideration and there was consideration as above pointed out in that case. In these cases there is no consideration. We therefore dismiss the Second Appeals with costs.