S. Ramachandra Iyer, C.J.
1. These appeals which are directed against the judgment of Srinnvasan, J. arise out of two suits instituted by the appellant to recover arrears of rent for a period covered by seven faslis from 1360 to 1366 at the rate of Rs. 35 per seed kotah of land in the possession of the respondents. The appellant is the inamdar of certain lands in the former Oothumalai zamin which are now in the occupation of the respondents to these appeals. The inam grant was made prior to the permanent settlement and it is now settled as a result of a litigation instituted in the year 1910 between the inamdar and the respondents' predecessors-in-title, that the grant was only of the melwaram, the kudiwaratn interest having been with the ryots even at the time of the grant. The inam in favour of the appellant, is therefore, a pre-settlement inam of the melwaram only which by virtue of the grant, the inamdar could collect directly from the ryots who had pre-existing occupancy rights in the land. The inam being a minor pre-settlement inam the provisions of the Madras Estates Land Act will not apply to It.
2. A few years after the termination of the litigation referred to above, on 29th March 1920, the kudiwaramdars executed agreements in favour of the inamdars agreeing to pay rent at the rate of Rs. 35 per seed kotah of land. It was stipulated that the agreements were to be in force for a period of 30 years, that is till 28th March 1950. Even thereafter the kudiwaramdars continued in possession of the lands. They however defaulted in payment of rent. The appellant instituted the two suits out of which these appeals arise for recovery of arrears of rent on the basis, that the respondents were tenants holding over on the same terms as those contained in the lease deeds dated 29th March 1920. The appellant also claimed a charge on the properties for the realisation of arrears of rent. The suits were resisted by the present respondents on the grounds (1) that as the agreements to pay rent were to enure only for a period of 30 years, the appellant would not be entitled to recover rent at the rate stipulated therein but that on the other hand he could only revert to the original position, namely, getting rent on the basis of a share of the produce; (2) there was no charge availabla to the inamdar for the kudiwararn interest owned by the respondents, (3) that the claim for arrears of rent in excess of three years prior to the suit was barred by limitation and (4) that in respect of certain years there had been failure of crops, and that the respondents were entitled to remission of rent.
The learned District Munsif rejected all the contentions and decreed the suit as prayed for. On appeal the learned District Judge, Tirunelveli, held that the lease documents dated 29th March 1920 being only for a limited period of 30 years, the terms therein would not govern the liability of the respondents to the appellant. He also negatived the claim of the inamdar for a charge over the kudiwaram interest of the tenants. He, however, upheld the view taken by the trial Court that the suit claim was not barred by limitation and found that in regard to remission of rent claimed, the parties had not directed proper attention at the time of trial to the real question at issue, namely, whether the tenants were entitled to remission by reason of the custom prevailing in the locality.
The learned District Judge set aside the decree of the trial Court and remanded the suits for fresh disposal in the light of his observations, posing the question what would be the rent that the appellant would be entitled to collect from the respondents on the basis of the sharing system and whether the custom of remission had been proved. The inamdar thereupon filed appeals to this Court in so far as the order of remand went against him. The defendants in one of the suits (L. P. A. No. 2 of 1961) filed a memorandum of cross-objections against the finding of the lower Court that the claim in excess of three years was not barred by limitation. But the defendants in the other suit did not object to that finding.
3. The appeals came up for hearing before Srinivasan, J. who upheld the finding of the lower appellate Court that the lease deeds have not affected the rights of the parties and that the appellant would be entitled to recover arrears of rent only on the basis of the sharing system and that no charge would be available over the kudiwaram interest of the tenants in the lands for the recovery of arrears of rent. The learned Judge did not however agree with the view of the District judge that the respondents should be given an opportunity to prove the custom as to remission of rent in the case of lean years. The learned Judge also disagreed with the lower Court on the question of limitation holding that the claim was one for arrears of rent which would come under Article 110 of the Limitation Act and that the appellant would be entitled to recover arrears of rent only for three years prior to the suits.
Although the defendants in L. P. A. No. 1 of 1961 did not file any memorandum of cross-objections disputing the correctness of the finding of the lower Court he directed that his judgment on the question of limitation would apply to that case as well. Subject to these directions the learned Judge affirmed the order passed by the lower Court.
4. The Inamdar has filed the present appeals against the judgment of Srinivasan, J. The respondent in L. P. A. No. 2 of 1961 has filed a memorandum of cross-objections questioning the correctness of the direction of the learned Judge that a further opportunity should be given to the tenants to prove the custom of sharing of the produce.
5. We are in complete agreement with the learned Judge that the appellant would not be entitled -to claim arrears of rent on the basis of the stipulation contained and at the rates mentioned in the agreements dated 29th March 1920.
6. We have been taken through the document which is in Tamil. It is clear that the document did not effect any alteration in the state of the relationship between the parties. It only related to the manner of payment of melwaram for a period of 30 years as it expressly stated that in view of the difficulty experienced in the matter of sharing of the produce, the parties had agreed to fixation of rent, at Rs. 35 per seed kottah of land as melwaram. That document was put in force for a definite term; and after the expiry of the period mentioned in the document, the parties would' revert to the usual rates, namely, that the appellant would be entitled to collect rent under the system, of sharing of produce.
7. Mr. Vedantachari appearing for the appellant has contended that the document should be construed as in effect amounting to a surrender of the occupancy rights of the kudiwaramdars (respondents) and the granting of a lease for a term by the appellant. We are unable to see any justification for this contention on the terms of the document. It follows from what we have stated above, that the trial Court has to ascertain the share of the produce to which the appellant would be entitled, and after ascertaining that share, the Court will have to commute in terms of money the amount payable by the respondents to the appellant and pass a decree there for. If it is found that the amount of rent thus ascertained is in excess of the suit claim, the lower Court will give an opportunity to the appellant to pay the deficient Court-fee, if any, and to obtain a decree for the entire amount. This is plain justice as the respondent who wants to plead the reversion to the old sharing system must abide by it wholly. We are also in agreement with the learned Judge that the appellant would have no charge on the kudiwarani interest owned by the respondents for the realisation of the rent due to him and with his conclusion that the respondents should not have a further opportunity to prove the custom as to remission of rent in case of failure of crop in any particular year.
8. What remains for consideration then is, the question of limitation. Mr. Vedantachari for the appellant contends that the proper Article to apply in this case will be Article 131, which provides, for a period of 12 years for establishing a periodically recurring right. The question that falls to be decided therefore is whether a claim to recover melwaram from the kudiwaram owners in a case not governed by the provisions of the Madras Estates Land Act would be a claim for rent coming under Article 110 of the Limitation Act, or a claim for a periodically recurring right. From what we have Stated above the right of the appellant in the present case is to recover a particular share of the produce of the land from the kudiwaramdar. He will have that right against every person who is in possession of the land. In other words the kudiwaram interest being a distinct one in the land and the right of the inamdar being to recover melwaram from such kudiwaramdar the former would have the right to recover rent from any person in possession of the land. The amount to be paid by the .kudiwaramdar will also vary from year to year in proportion to the produce on the land. Prima facie, therefore, the landlord's share, that is the melwaram can be regarded as a periodically recurring right.
In Rajah of Bobbili v. State of Madras, : AIR1952Mad203 , Venkatarama Iyer, J. observed at p. 202 (of Mad LJ) : (at p. 222 of AIR):
'It is true as already pointed out, that the rights of the Zamindar differ in material particulars from those of the landlord under the general law, but these differences do not affect the relationship of the zamindar and the ryots in law which that of a landlord and a tenant. Nor do they alter the character of the payments made by the ryot to the zamindar whether in kind or money which is rent. The legislation on this subject has proceeded for nearly a century on the basis that they stand in the relationship of landlord and tenant, and it is too late in the day to dispute) that position.'
These observations relate to a case to which the provisions of the Madras Estates Land Act applied. But as we stated earlier, the provisions of that Act will not apply to the present case as it is a pre-settlement minor inam.
In Secy. of State v. Parashram Madhavarao , it was held by the Privy Council that where there was a right to recover a certain percentage of the collections from the villagers, the right might be described to be a periodically recurring right. Again in Alubi v. Kunhibi, ILR 10 Mad 115, where the Government was entitled to collect a sum of money from certain jenmis of paramba as revenue, transferred the right to collect such revenue to the trustees of a mosque, the claim of the trustees against the jenmis was held to be governed by Article 131 of the Limitation Act. The learned Judges observe :
'What the plaintiff seems to recover is rent or revenue which has accrued. Each year's rent or revenue is a recurring right within Article 131. It is not correct to say that the relation of landlord and tenant did not subsist between the trustees of the mosque and the jenmis, inasmuch as the plaintiff is the party entitled to recover the rent) or revenue payable out of the land and the defendants as the jenmis in possession of the land are. bound to pay the plaintiff is entitled to recover 12 years' rent or revenue upto date of suit under Article 131 as a recurring right and also under Article 132 as money charged on land'.
This case would therefore support the view that the right to receive rent, can under certain circumstances be regarded as a right to receive periodical payments within the meaning of Article 131 of the Limitation Act. This court has also held in Zamorin of Calicut v. Achutha Menon, ILR 38 Mad 916 : (IR 1914 Mad 377 that a suit which was for recovery of arrears of aditna allowance came within Article 131 in Jagannatha Pandiajeer v. Muthian Pillai 14 Mad LJ 477 was applied to a claim by the landholder to recover rent but as pointed out by Srinivasan J. the claim in that case was limited to three years' arrears only. Krishniah v. Lodd Govindadass Krishnadas : AIR1938Mad47 was concerned with a suit to recover kavimera that is a portion out of the melwaram collected by the zamindar. It was held to come within Article 131. Similar was. the view taken in Thangaraja Pandian v. Veeraraghava Aiyangar : (1958)1MLJ69 . But the last two cases can be distinguished on the ground that the claim was against the zamindar out of his melwaram collections and not one against the tenant.
But having regard to the nature of the right in the present case, we are of opinion that it cannot be regarded as rent coming within Article 110 of the Limitation Act; it is a periodically recurring right within the meaning of Article 131. We are, therefore unable with great respect, to share the view of Srinivasan, J. that in the present case, a portion of the claim is barred by limitation. In this view it is unnecessary to consider the other objection raised by the appellant, that the learned Judge had no jurisdiction to give relief to the defendants in L. P. A. No. 1 of 1961 on the point of limitation when they had not filed any memorandum of cross objections challenging the order of the lower court in that regard. We, therefore confirm the judgment of Srinivasan J. with this modification, namely, that the appellant will be entitled to recover the entire arrears of rent from fasli 1360 and that this claim is not barred by limitation. No order as to costs.