Kuppuswami Ayyar, J.
1. These appeals arise out of suits filed by tenants under Section 173 of the Estates Land Act and the arguments were confined to the claim in respect of mamul wet lands, and the ground for interference is also confined to the complaint that the Settlement Officer, in the proceedings taken under Chapter XI of the Estates Land Act, did not note in the Record of Rights an agreement entered into in 1926 between the landlord and the ryot under which the water rate payable by ,'hem in respect of the mamul wet land was to be Rs. 2-8-0 per acre with no right in either party to claim a revision of the same and that the rent has been settled without giving effect to this agreement. The zamindar's contention was that the agreement was not valid and binding, that it was not binding on the officer who settled the rents under Chapter XI of the Estates Land Act and that this suit was not maintainable in respect of this relief.
2. The subject-matter of these appeals are lands situate in the village of Neredumilli. The kudicat in the village comprised 625.49 acres out of which 228. I was mamul wet. When the delta system was introduced the original source of irrigation in several of these zamindari villages had to be interfered with. But in consideration of the same, Government collected water rate in respect of the additional lands brought under cultivation as wet by charging a definite sum of money per acre irrigated over and above the extent, which was mamul wet. The amount so collected in respect of this village from the zamindar was being distributed among the various ryots whose lands were cultivated with water supplied by the delta system of irrigation. Such a system ignored the claim of the ryots in respect of mamul wet. The original mamul wet was not localised, and hence it was that Government had to levy a water rate on the entire area irrigated by the new system minus the old wet instead of levying it on the area of the lands that were brought under wet cultivation subsequent to the introduction of the delta system. There were disputes between the zamindar and the ryots in respect of the mamul wet lands and in consideration of the zamindar localising the mamul wet lands it was agreed that the ryots holding the mamul wet lands should in future pay only Rs. 2-8-0 instead of the Rs. 5 per acre which they were paying and that neither party could have any right to revise the water rate of Rs. 2-8-0 per acre agreed to be paid. It is a finding of fact and is not disputed in this Court. Subsequently there was a settlement of accounts in respect of the rents payable for the various lands in the village. The ryots of the lands in dispute in these appeals wanted the Settlement Officer to note in the Record of Rights that there was this agreement and they wanted the agreement to be given effect to in fixing the amount payable as rent. Though the officer stated that it was not necessary at that stage to enter it in the record of rights and that it would be considered in fixing the amounts, he did not give effect to it in settling the rent of these lands. The appellants in all these cases therefore had to file suits and these suits related not only to mamul wet lands but to other lands as well. There were other grounds also on which the suits were based; but they have all been found against, and they are not pressed in this Court, the claim being confined in this Court only to mamul wet lands, and the ground of attack being confined to the failure to note in the record of rights the special agreement with regard to water rate.
3. The first Court found that the agreement was true and valid, that it was a special condition in respect of a holding at a favourable rate and that the omission to show it. in the record of rights was a sufficient ground for filing a suit under Section 173, and as this agreement had been ignored in arriving at the fair and equitable rent, he directed Rs. 2-8-0 per acre to be deducted out of the rent settled and gave a decree accordingly. The lower appellate Court held that the agreement was void against the ryots inasmuch as it effected a permanent enhancement of the rent payable to the landholder that it was not one protected by Section 26 and that such an agreement cannot override the powers of the revenue authorities in settling a fair and equitable rent. He negatived the ryots' claim in respect of the mamul wet lands and set aside the lower Court's decree with regard to them.
4. As already pointed out above the genuineness of the agreement is not disputed in this Court. As a matter of fact it was noted in the various pattas issued before the rents were settled. Section 3 (11) of the Estates Land Act defines rent and it includes 'whatever is payable on account of water supplied by the landholder.' The agreement in question therefore was an agreement with regard to a portion of the rent payable. There is nothing illegal about it, for it was not an agreement to pay an enhanced rent. Water rate levied on these ryots prior to the agreement was Rs. 5 per acre and in consideration of the zamindar agreeing to localise the mamul wet lands the ryot agreed to pay Rs. 2-8-0 per acre, and it was not to be revised. That an agreement to pay a definite sum is not one for enhancement of rent and is not illegal as such is clear from the decision in Battina Appanna v. Raja Tarlagadda : (1917)33MLJ355 . In this case the payment was agreed to be made in consideration of the zamindar localising the mamul wet, for when it is localised it would not be open to the Government to charge any water rate on it. The only person who can do the localisation was the zamindar, and since he agreed to do it, there was consideration for the contract. In Duraiswami Gurukkal v. Subramania Gurukkal (1927) 54 M.L.J. 361 : I.L.R. Mad. 266 it was held by a Full Bench of this Court that where a ryot uses for the cultivation of his land water from a Government source, and for the use of water that is taken Government requires some amount as and by way of water cess from the zamindar, the claim of the latter to recover such amount from the ryot was not a claim for enhancement of rent. This is a case where the extra payment has been made for the additional advantage of localising the mamul wet which the zamindar could do if he chooses. It was pointed out in Duraiswami Gurukkal. v. Subramania Gurukkal (1927) 54 M.L.J. 361 : I.L.R. Mad. 266 that where there were new circumstances they required adjustment and if any sum is agreed to be paid in connection with it, it could not be said to be an enhancement of rent. Till now they were paying Rs. 5 because the lands were not localised and as the zamindar agreed to localise, which was a new circumstance, it required an adjustment, and there was an agreement to pay only two rupees eight annas per acre.
5. The same principle was affirmed in Venkatraju v. Maharaja of Pithapuram : AIR1938Mad342 .
6. The lower appellate Court refers to an objection under Section 26 of the Estates Land Act. But it is conceded that that section has no application to the facts of this case. The zamindar who entered into the agreement is the present zamindar, and during his lifetime it would not be open to him to dispute the validity of the agreement referred to above. It may not be binding on his successors and the first Court has referred to this circumstance and it is not necessary at this stage to decide it.
7. The next question for consideration is whether there was an omission to note this in the record of rights and whether this omission was a proper ground for the filing of the suits under Section 173. The ryots no doubt complained in their plaint that in the record of rights the officer omitted to note what the rent that was payable at the time the record was being prepared was and whether the ryot was entitled to the benefits of proviso (a) to Clause (1) of Section 30 and that he also failed to note how the rent had been fixed, whether by decree or by the provisions of this Act or otherwise and whether there was any right incident to the holding and that the omission to note them in the record of rights was one of the grounds specified in Section 173, Clause 3 (d). But then as pointed out by the first Court this was not one of the entries directed to be made by the Government in its notification when it directed the preparation of the record of rights. It is open to the Government to direct what particulars should be recorded, and in this case as pointed out in Ex. J-1, the order of the Sub-Collector, Narasapur, regarding the preparation of the record of rights in question, the items mentioned in the latter portion of Section 165, Clause (e) and in Section 165 (f) were not included. Consequently the omission to note these particulars cannot entitle the plaintiff to invoke the benefit of Section 173, Clause (d). But as pointed out by the learned District Munsiff the agreement amounts to a special condition in respect of the holding at a favourable rate, and omission to note it will bring the case under Section 173, Clause 3 (f). Till the date of the agreement they were paying at Rs. 5 per acre irrespective of the fact that the lands were mamul wet lands because they had not been localised. By entering into an agreement the zamindar undertook to localise these lands which act enabled them to escape from the liability to pay the Government water cess on their lands, and in consideration of the same they agreed to pay Rs. 2-8-0 instead of Rs. 5 in future to the zamindar. This is therefore a special agreement under which they were able to have a favourable water rate, that is to say, a rate lower than what they were paying till then after the delta system came into force. It is admitted that under the terms of the agreement noted in the various pattas issued by the zamindar the rate was not liable to be revised, at any rate during the lifetime of the present zamindar. Consequently the omission entitled the plaintiff to file a suit in respect of these mamul wet lands under Section 173.
8. The scope of the suit and the relief that could be granted in a suit filed by a ryot under that section is fully dealt with in Zamindar of Kallikoie v. Beero Pollai (1935) 71 M.L.J. 118 : I.L.R. Mad. 825 After pointing out how wrong entries in the record of rights might' lead to a settlement on a wrong basis it is pointed out at page 845 that where the ground of attack in the suit' is that stated in Clause (e) the Court has to decide what the entry shall be having regard to the finding in the particular matter, and if the Court finds that one or more of such data on which the rent fixed by the Revenue Officer was wrong in fact, it shall make the necessary consequential alteration, and that is exactly what the learned District Munsiff has done in this case. No doubt in, the order of the Sub-Collector dated 25th April, 1933, he stated that the agreement would be considered when the rents are settled. This is what he says:
There is no need therefore to record the agreement which is alleged to be the basis of the existing rent noted in the draft record. The point will arise only in connection with the further stage; the settlement of rents will be duly considered then. The present petition is dismissed.
But in the order settling the rent there is the following passage:
For mamul wet lands water rate was added to dry rate of rent. Even in this water rate there was no equity. On some lands (a majority) a water rate of Rs. 2-8-0 an acre was added to the dry rate of rent. In some cases a rate of Rs. 5 was added. In some cases of mamul wet the ryots have not been paying any water rate at all. The ryots lay stress on the condition in the pattas and muchilikas exchanged in respect of mamul wet lands that neither the proprietors nor the ryots should claim for enhancement or reduction of the amount of water tax agreed upon them. I doubt if this compromise comes within the scope of Section 168 (4) of the Estates Land Act since it was not made during these settlement operations and even if it is construed to come under Section 168 (4), I am not satisfied that the amount according to the compromise is either fair or equitable and I therefore hold that fair and equitable rates of rent have now to be fixed.
At the end of paragraph 13 this is what he says:
How far the agreement is to be respected in these settlement operations was discussed in para. 6 above and I do not consider it as a limitation for settling fair and equitable rents under Section 168 of the Estates Land Act.
It is therefore clear that in settling the rent the officer considered the agreement to be neither fair nor equitable and ignored it and fixed the rent on the basis of the rent prevailing in the adjoining villages. The learned District Munsiff in paragraph 26 of his judgment observes:
I have no doubt that the present rate settled per acre for mamul wet lands took into consideration the full water rate of Rs. 5 as the reasonable and fair sum. Having regard to the agreement during the lifetime of the present proprietors, I hold that there is a special condition for a favourable rate with reference to the water tax and the consolidated rent should be deemed to be in excess of this agreement by Rs. 2-8-0 per acre.
And he directed the rent to be reduced by Rs. 2-8-0 per acre. The learned District Munsiff therefore proceeded on the basis that in settling the accounts the water rate was taken to be Rs. 5 instead of Rs. 2-8-0 and the fair rent fixed accordingly. I have already pointed out the portions of the order of the officer settling the rent indicating that it was so. It is also significant that in the grounds of appeal filed in the lower appellate Court no objection was taken to this statement in the judgment of the District Munsiff.
9. The decisions in Valluri Narasimharao v. Ryots of Peddamidipalli I.L.R.(1925) Mad. 499 and Ryots of Garabanda, etc., villages v. Zamindar of Parlakimidi : AIR1938Mad722 referred to by the learned Subordinate Judge have no application to the facts of this case. All that was stated there was that in settling a fair and equitable rate of rent under Chapter XI, Section 168 of the Estates Land Act was not bound by the limitation of Section 30 of the Act relating to the enhancement of rent. It was so held because the proviso to Section 30 applied only to the petitions for enhancement filed under that section. It is unnecessary to refer to other cases cited. All that was found in them was that the powers of an officer settling the rents arc wide and that Courts cannot interfere with, it. But even in this case the Civil Court has jurisdiction to interfere because the Settlement Officer refused to comply with a statutory liability. He was bound to have entered in the record of rights this special condition with respect to the holding, namely, that the water rate payable was Rs. 2-8-0 and that it was not liable to be revised at any rate during the lifetime of the present zamindar. Consequently it entitled the plaintiffs to come forward with suits under Section 173, Clause 3 (e). The Court thus became seized with jurisdiction over the dispute and when it noticed that there was a mistake and that the rent was fixed on a wrong basis ignoring the agreement it was entitled to correct it.
10. In these circumstances I find that the learned Subordinate Judge was wrong in finding that the agreement was void and that the Settlement Officer was entitled to ignore it while settling the rent. I therefore set aside the decree of the lower appellate Court with regard to the mamul wet lands which are the subject-matter of these appeals and restore the decree of the trial Court in respect of the same. The zamindar-respondent will pay the appellant proportionate costs in this Court as well as in the lower appellate Court on the portion of the claim allowed.
11. Leave refused.