1. The question for decision in these second appeals is what rent is to be paid on lands cultivated with wet crops. The plaintiff-appellant in the pattahs tendered for fasli 1314) demanded asara or varam rates in respect of such lands. The defendants contended that they were only bound to pay the money rents fixed on the lands in fasli 1292.
2. The admitted facts are these:
Till fasli 1283 the asara system was in force. In fasli 1284 money rents were introduced and the rates of such rents were permanently fixed in fasli 1292. At the time all the lands were dry ; wet cultivation began in fasli 1314 and the pattahs now in dispute were then tendered, as the tenants refused to pay more than the fixed rates in 1292 which they had previously been paying for lands as dry. Nothing had been done by plaintiff to provide facilities for irrigation. In the muchilikas executed by the tenant for fasli prior to faslies 1314 there are clauses to the effect that the plaintiff may make an extra charge if wet or garden crops are raised on dry lands. The amount of such extra charge is not, however, stated. If the plaintiff is entitled to demand asara rates the rates mentioned in pattahs tendered are correct. The Courts below have taken the view that the plaintiff has tendered asara pattahs as a means of enhancing the rent and that he has not done anything to justify an enhancement of the rent; and as he has not obtained the sanction of the Collector for the enhancement he is only entitled to the rents fixed in fasli.
3. For the plaintiff it is contended that inasmuch as there is no contract as to the rates payable on lands cultivated with wet crops, he is entitled under Clause 3 Section 11 of Act VIII of 1865 to claim varani rates, it being admitted that no money assessment has been fixed under Clause 2 of that Section.
4. That there is no contract as to the rates of rent payable for wet cultivation is clear from the admitted muchilikas, the material clauses of which have been referred to ; the only rates fixed were for dry cultivation. The rates to be charged for wet cultivation were left undetermined; this being so, the contention for the plaintiff seems to be well-founded.
5. As to the contention that the object of the plaintiff in charging varam rates is to enhance the rent, we must observe that if the circumstances are such that under Section 11 of Act VIII of 1865 the plaintiff is entitled to claim varam rates the fact that he thereby gets an enhanced rent is immaterial. Reference. may be made to Natesa Gramani v. Venketarama Reddi (1) where it is observed that, ' In the absence of contract or survey (1) 30 M. 510 at. p. 516.rates the landlord Is entitled under Clause 3 to revert to the varam system, an incident of which is that the landlord necessarily shares the benefit of the tenant's improvements.' There are observations in Suppa Pillai v. Nagayasami Thumbichi Naickar (2) to the same effect.
6. It is contended for the respondents that in fasli 1292 it was settled for ever that rents should be paid in money, that, therefore, varam rates cannot be reverted to, and that if rates of money have not been fixed it is for the Court to fix reasonable money rates. In settling disputes regarding rates of rent the Court has to be guided solely by Section 11 of Act V.III of 1865. A contract to pay rent in money, the amount payable being left undetermined is not, in our opinion, a contract for rent within the meaning of Clause 1 of Section 11. Clause 1 of Section 11 clearly refers to contracts which on proof can be enforced as they stand. If there is no contract as to the rates of rent the Court must, in order to determine the rate, proceed to applythe rules contained in Section 11 in the order there given. It is only when all the other rules are inapplicable that the Court can fix the rates that appear to it just. Thus though there may have been a contract to pay rent in money the rules under Section 11 may. demand that rent be paid in kind.
7. Another contention on behalf of the respondent is that under Section 11, if there are no contracts or survey rates the rates of rent must be determined according to local usage, and when such usage is not clearly as certain able according to the rates for neighboring lands, that it is only when either party is dissatisfied with the rates so determined the varam rates can be claimed, that in the present case there has been no enquiry as to local usage or neighboring rates and that, therefore, the plaintiff is not entitled to claim varam rates. This contention involves the. absurdity that if one of the parties declares that he means to claim varam rates in any case, of no matter what the result of enquiry as to local usage etc., may be, the Court must nevertheless hold such an enquiry, an enquiry which can serve no purpose. This can never have been the intention of the Legislature.
8. We have been referred to the judgment in S. A. Nos. 83 to 86 of 1903 in which the appellant was the same person as the res-pondent in one of the cases now before us, the appellant the same as the present appellant. Those appeals arose out of suits to enforce acceptance of asara pattahs in respect of dry lands. It was held that there was a contract to pay rent in money at the rates fixed in fasli 1292. This judgment has no bearing on the question now under consideration as it does not deal with the rent payable on wet lands. The result is that we hold that the pattahs tendered by the plaintiff were proper pattahs and that the defendants must accept them. The defendants will pay the plaintiff's costs throughout.