1. The defendant Zemindar is the appellant. Plaintiff, who is a ryot in the Zemindari, sued tinder Section 55 of the Madras Estates Land Act for a decree directing the defendant to tender to him a proper Patta, He pat in a Patta which did not contain any provision for cesses that had been usually levied and objection was taken by the Zemindar to the form of the Patta which he wanted to get. The Zemindar put in the Patta, Exhibit I, which was granted. to the plaintiff's predecessor-in-title, which contained the following cesses which were described as Pothu Salavu or common expenses which were to go to the Zemindar: (1) Ayyanar, (2) Kulavethu, (3) Kattalavuvasi, (4) Kanganam, (5), Melvaram Kotta Urai, (6) Swatanthram, (7) Kudivaram Kottai Urai. It provided for two items to go to the tenant as common, expenses and stipulated that, after deducting the above items of common expenses, one half of the paddy was to be taken by the landlord and the other half by the tenant. Oat of the Kudivaram thus taken by the ryot he was further to give to the landlord (1) Kangovi, (2) Thrashing ground rent, and (3) Thirupani.
2. It is not disputed that the land to which the Patta claimed related is Nanja and Varam rents are payable. The plaintiff in his evidence admits he has been paying the cesses to the Zemindar for the past 30 years and that his father was paying the cesses when he was alive and that all the tenants have been paying the cesses without complaint.
3. The Revenue Divisional Officer held that the causes claimed by the Zemindar were payable according to usage having the force of law' and that they must be included in the Patta. On appeal the Distrust Judge disallowed the cesses as illegal under Section 143 of the Madras Estates Land Act and held that plaintiff was entitled to the Patta without any of the cesses being included.
4. The question for decision in this second appeal is as to the legality of all or any of the cesses claimed. As regards Kangpvi and Kattalavavasi and Ayyanar, it is not clear what they are payable for or on what ground payment is based. The Zemin Karnam who was examined as defendant's first witness states that he does not know why Kangovi was collected He says nothing about Ayyanar and Kattalavavasi and the appellant's Vakil is unable to throw any light on these cesses. These three cases are not shown to have any connection with the holding or the rent payable.
5. The other cesses claimed stand on a different footing. Kanaganam is the fee for watching the harvest. Kalavettu relates to the expenses for keeping tanks in proper repair. Kudivaram Urai and Malvjram Urai are in respect of measuring the Kudivaram and Melvaratn paddy. Swratantram is in' respect of payment to village artizans. Tairupani is the cess for repairing the village temple.
6. Rent is defined in Section 3, Clause 11 (a), of the Estates Land Act as including any local tax, cess fee or sums payable by a ryot as such in addition to the rant due in respect of land according to law or usage having the force of law. Section 143 prohibits land-holders from exacting from their ryots anything in addition to the rent lawfully payable by them rendering all stipulations and reservations for such additional rent void.
7. In considering whether any particular cess claimed and which has been paid for a period of years is enforceable or not, the first thing to be considered is whether the cess claimed has any direct or proximate bearing on the purposes for which the land is let. If the cess is payable in respect of such purposes, it will prima facie be one which is binding on the 'parties and the onus will be on the tenant to show that owing to some special circumstances it is not binding on him. Where the cesses are in their nature unconnected with the object for which land is let, they can only be' claimed by the landlord under a contract between him and the ryots supported, by consideration or under a usage for which a legal origin is either proved or presumed from the nature of the cess and 'long course of payments.' While on the one hand mere length of payment will not, as pointed out in Sundaram Iyer V. Theetharappa Mudaliar 40 Ind. Cas. 159, render a cess which is purely voluntary or which is on its face illegal acquire a binding character, payment during a long series of years will be presumptive evidence that the payment of a cess had a legal origin if the cess is of such a nature that a contract to pay it may reasonably be inferred.
8. Another distinction is, whether the particular cess is paid out of the tenant's share of the Varam or whether it is deducted out of the whole gross produce before the division of the Varam is made. There is nothing to prevent both the sharers in the Varam from agreeing that certain expenses which they think beneficial to both of them shall be met by them in common and the rest of the produce divided. So long as it is not a device by the landlord to give himself a purely personal advantage, the purpose for which the item is appropriated is immaterial. It will, of course, be open to the tenant to show that the purpose for which the cess was levied had failed or that the landlord has not been appropriating: the sum to the purpose for which he levied it, but otherwise there is no reason for releasing the tenant from his agreement.
9. Where the cess has no direct bearing on the purpose for which the land is let and is payable out of the tenant's share of the rent, we think that the onus ought to be on the landlord to show that it was either part of the consideration for which the land was originally leased or that it is Supported by consideration subsequently.
10. I do rot think that because a cess has been held to be not binding on one estate it follows that it is not binding on other estates or vice versa. Each case must depend on the fasts, and reported 'decision* are only useful in so far as they lay down general principle which guide Courts in coming to conclusions as to the validity or otherwise of any particular cess.
11. In the present case Kanganam, Kulavethu, Melvaram Urai, Kudivaratn Urai and Swatantram are set apart before division of the ' produce between the landlord and tenant. Kanganam, as pointed out in Arunachallam Chettiar v. Mangalam 35 Ind. Cas. 329 : 20 M.L.T. 70 : 31 M.L.J. 168, is clearly a cess which the landlord is entitled to levy as in case of Varam tenure, he is interested in seeing that he gets his due share of the harvest; Kulavethu which is a cess for keeping the tanks in proper repair is for a purpose beneficial to the landlord and tenant and there is no reason why the cess should be disallowed. Reference was made by the respondent's Vakil to Bonunadevara Venkata Narasimha Naidu v. Samanedam. Ramamma 16 Ind. Cas. 208 : (1913) M.W.N. 551, bat the case has no application to the facts of the present case as in that case the finding was that the tank fell into disrepair several years ago when the anicut system was introduced by the Government in the Kistna District. The Zemindar did not repair the tank and the ryots derived no benefit in consideration of which the cess could be claimed. In the present case there is no allegation that tank water is not used by the respondent. Kudivaram Urai and Melvaram Urai are in respect of the measurement of the Melvaram and Kudivaram respectively. It is not denied that measurement of the paddy is necessary to determine the landlord's and tenant's share.
12. As regards Swatantram the cess is collected for payment to village artizans and servants and it is not shown that the tenants who have been paying this cess without any objection for several years receive no benefit. The cess was taken out of the gross produce before division and there is nothing either in the plaint or in the evidence adduced by the plaintiff to show that this cess is purely for the benefit of the landlord. In Sree Sankarachari Swamiar v. Varada Pillai 13 M.L.J. 429 it has been held that a cess for payment to village artizans is lawful.
13. Turning to the cesses (Kangovi, thrashing ground rent and Thirupani) which in the Patta granted to plaintiff's vendors are payable after division of the produce we have already disallowed, Kangovi. Thirupani is collected for repairing temples. This cess has been held to be purely voluntary in Siriparapu Ramanna v. Mallikarjuna Trasada Nayudu 3 M.L.J. 207 : 6 Ind. Dec. 29 wherein the learned Judges (Muthuswanu Aiyar and Best, JJ.) observed: A duty to contribute to the expenses of a temple is not an ordinary incident of the relation, of landlord and tenant, nor has it any connection with the jirayati tenure on which' the ryot holds his land. Prima facie, the contribution is voluntary and unless the fee. is shown to be a charge on the land it cannot be treated as a payment which the Zemindar can legally compel the ryot to make.' A similar view was taken by Benson and Bashyam Aiyangar, JJ, in Rimalingam Chettiar v. Ramasami Aiyar 13 M.L.J. 379.
14. As regards thrashing ground rent it is difficult to see why the cess should not be paid in cases where owing to the want of thrashing floor belonging to the tenant the parties have to pay for using another's. Where, however, the tenant has a thrashing floor the cess ought not to be levied.
15. We would modify the decree of the District Judge by allowing Kanganam, Kulavethu, Melvaram Urai, Kudivaram Urai, Swatantram and thrashing ground rent in oases where the tenant has no thrashing floor. As regards the items which under the Patta, Exhibit I, go to the ryot, the landlord does not dispute that the tenant is entitled to them. These items will also be included in the Patta so far as wet lands paying Varam are concerned. The Patta will issue in terms of Exhibit I with the above modifications so far as Varam paying wet lands are concerned. The decree of the District Judge disallowing cesses will stand as regards Punja land.
16. As the appellant has succeeded substantially and as the respondent came to Court alleging that no cesses were due, we direct the respondent to pay the appellant's costs in this and in the lower Appellate Court.