1. The suit under appeal is brought for recovery of appears of rent due on a certain patta. The question in issue is what is the proper amount that the defendants should pay. According to the plaintiff it should be Rs. 282-10-0, but the defendants claim that they are entitled to beriz deductions of Rs. 56, so that they should only have to pay Rs. 226-10-0, and that that is really the proper rent.
2. The land originally belonged to some Kondadoras. Originally they had 87 cents of dry and 3 acres of wet land but it was found on a re-survey and Settlement in 1901-3 and 1906 that they were actually in possession of 14-88 acres of dry and 68 acres of wet. They were given, and accepted, a patta for these lands for a rental of Rs. 292-1-8. They did not pay the rent, at any rate, in full, and the lands were brought to sale. They brought a suit under Section 112, of the Madras Estates Land Act to contest the right of sale of the Vizianagaram Estate but the suit was dismissed. Then the Estate bought the lands and granted the wet portion of them on patta to Potta Gangarazu. Another suit, this time in the Court of the District Judge of Vizagapatam, was brought by the Kondadoras to have the sale of the, lands and delivery of Potta Gangarazu set aside and declared illegal and invalid. This suit also was dismissed. In 1926 the lands were sold to the present defendants.
3. When the wet lands were granted on patta to Potta Gangarazu the patta and muchilika, which were Exs. I and B respectively set out the rent as Rs. 282-10-0 from which was subtracted beriz deductions of Rs. 56, and the muchilika describes the nett amount of Rs. 224-8-0 as the amount settled to be paid. In the patta the amount less beriz deduction is given as Rs. 226-10-0, but no importance appears to attach to this slight variation. Previously, in the time of the Kondadaras, there had been a beriz deduction of Rs. 60, but as Gangarazu only took the wet lands there was a proportionate reduction both of the total amount of rent and in the amount of beriz deduction. The plaintiff claims that by allowing the beriz deduction his predecessor allowed the suit lands to be held for a rent lower than the lawful rate previously payable on them and that, as that lower rate was not allowed for any of the purposes stated in Clause (1) of Section 26, of the Madras Estates Land Act, he is entitled to claim the full lawful rate of Rs. 282-10-0, It is pointed out that in Ex. A, the muckilika executed by; the Kondadoras in 1912 the rent of the entire land is stated to be Rs. 292-1-8 and nothing whatever is said as to any beriz deduction. That, however, there was such a deduction is clear from Ex. VI, the judgment of the Honorary Deputy Collector of Vizagapatam in the earlier of the two suits brought by the Kondadoras. The arrears of rent that were then sued for came only to Rs. 255-3-3 and the dispute was not as to whether or no there should be any beriz deduction but as to whether the Kondadoras should pay an extra amount for the extra extent of land that they had been found to occupy or should pay as they had been paying in times past. It appears from the decision, of the Deputy Collector that they were entitled to beriz deduction. In the course of his judgment the Deputy Collector has thus stated:
The patta is silent on the grant of beriz deduction while it is said in the written statement that such perpetual deduction was allowed apart from service which is extinct.
4. The learned Judge on first appeal has attached much importance to this citation from the written statement put in on behalf of the estate, and has held on account of it, and because the full rent has shown in Ex. A has never been paid, that the rent has been fixed by contract at a lower figure, that is, with the beriz deduction taken from it and that it is payable in perpetuity by contract at that figure. Though, however, that admission is of importance I do not think that it is altogether-conclusive as against the plaintiff. The question of whether or no there should be a beriz deduction was not before the Deputy Collector. All he had to decide was whether the claim of the estate for more than they had been getting before, allowing for the beriz deduction, could be allowed. Other points have to be considered. From the judgment of the District Judge of Vizagapatam in the latter suit, I gather that the Kondadoras had regarded, though not correctly, their lands as service lands. They had rendered some service to the Estate for which they were given an allowance and for convenience the amount of the allowance was deducted from the amount of the rent which they had to pay just by way of adjustments. This deduction appears to have been allowed to continue even after the service came to an end; and as far as lean gather though it is only a matter of inference, it appears to have been one that was allowed to them in their personal capacity. At any rate, after their land had been sold and there was a question of who should be the new tenant, it was not deemed a matter of course that there should be a beriz deduction. There is a letter Ex. V dated January 11, 1945, written by the Amin and there are notes, Ex. G, dated February 3, 1916, submitted to the Trustee which notes appear to be based on Ex. V. In Ex. V. it is recommended that a proportionate beriz deduction may be allowed; and in Ex. G it is specifically said that the petitioner requests the proportionate reduction of beriz which has been allowed to the pattadar. From this would appear that it was not regarded as a matter of course that there should be beriz deduction. Nonetheless such a deduction was allowed and it has to be seen in what circumstances it came to be allowed. Both Exs. V and G speak to the fact that Gangarazu is an influential man who can pay off, of the arrears and get possession of the land in spite of all incumbrances and there appears to be a suggestion that there might be obstruction by the Kondadoras. I do not, however, gather that it was on this account that the beriz deduction was allowed. The reason appears to be rather what is stated in the last paragraph but one of the report, Ex. V.
The lands now applied for are not fertile but the rate is very high. The same lands used to have a revenue dowle of Ks. 45-2-7. Hence the proportionate beriz deduction on the dowle of this survey number amounting to Rs. 56 may be granted.
5. This is not a case like that in Venkatarayanim v. Maharajah of Pittapuram 143 Ind. Cas. 808 : 64 M. L. J. 503 : 31 L. W. 495 : (1933) M. W. N. 258 : Ind. Rul. (1933) Mad. 313 : A. I. R. 1933 Mad. 427 : 56 M. 186 in which there never had been any other rate than the rate that had all along been paid, though it is one in which no higher amount has even been paid or ever claimed. It appears from the judgment of the District Judge of Vizagapatam that the charge was made at the lowest wet rate of Rs. 4 an acre, though collection at that rate had never been made and there had always been a beriz deduction. The case appears to be rather one like that in Peria Dekkan v. Rachapathi Aiyar 72 Ind Cas. 431 : 17 L. W. 169 : A. I. R. 1923 Mad 306 in which there was a contract rate as well as a faisal rate and in which it was found that in the circumstances it was the contract rate that was payable. In that decision it was held that the lawful rate payable was the contract rate, a permanent deduction from what would have been the rent if the whole land was cultivable having been allowed because it was saline and so long as it remained so. I think the principle of that decision applies to this case. As to the circumstances in which a beriz deduction was allowed to the Kondadoras, the position is not altogether clear, but I think it is quite clear that a deduction was allowed to Gangarazu when he became the ryot because of the normal rent being excessive in view of the lands not being very fertile. It is not shown or even asserted that the condition of the lands has in any way been improved since they came into the possession of Gangarazu. I, therefore, hold that the amount which can be claimed from the respondents-defendants as lawful rent is what has been paid all along, that is, the full amount of rent less the beriz deduction of Rs. 56, which comes to Rs. 226-10-0, the amount payable according to the contention of the respond-ant defendants. I regard that as the amount contracted to be paid as between the Estate and Gangarazu under conditions which still obtain. The second appeal, therefore, fails and is dismissed with costs.