Satyanarayana Rao J.
1. Defendants 1 and 2 preferred this appeal against the decision of the Subordinate Judge of Palghat granting a decree against them for arrears of rent with a charge on the suit properties. At the time of arguments of the appeal, however, the first appellant (first defendant) alone appeared.
2. The plaintiff sued to recover Rs. 5679-7-0 as arrears of rent due to him from the defendants and also prayed for sale of the tenancy rights of the defendants to discharge the said arrears. The properties in suit originally belonged in jenm to the Vadaseri tarwad. The plaintiff, it is now common ground though there was dispute in the trial court, represents the interest of the landlord in the properties. The case for the plaintiff was that on 9-3-1853 under a document, copy of which is marked as Ex. A. 6, 'saswatham' tenure was created in favour of one Karatti Chinnan Goundan, with a stipulation that he should pay rent at the rate of 231 paras of paddy per year. Defendants 1 and 2 by subsequent devolutions have now become the owners of the tenancy right. It is unnecessary to go into the details of the devolutions of the property under which ultimately defendants 1 and 2 became the tenants.
The suit was resisted on all possible grounds in the trial Court. Even the right of the plaintiff to sue was contested. But all those pleas are now out of the case. The learned subordinate Judge held that the plaintiff was the present landlord of the suit properties and was entitled to sue for rent, and that under the document Ex. A. 6, which he held was admissible, the tenants were bound to pay rent at the rate of 231 paras of paddy per year; he granted a decree for an amount which represents the market value of the paddy rent for a period of 12 years, but he disallowed interest on the same from the dates from which the arrears had accrued due. He also gave a charge on the suit properties for the arrears of rent due. There is an appeal by the defendants and a Memorandum of cross objections by the plaintiff.
3. In the appeal it was argued that the basis of the finding of the learned Subordinate Judge regarding the rate of rent was the document Ex. A. 6, which, according to the appellant's contention, should not have been admitted in evidence. If the document is admissible, it is undoubted that the defendants held the land on 'saswatham' tenure subject to a liability to pay rent at the rate of 231 paras of paddy. Exhibit A. 6 purports to be a copy of the original made in a book which contains copies of other documents. The copy, it is in evidence, was made by P. W. 1, who was the head-clerk and cashier of the Vadaseri tarwad during the years 1921 to 1939. The plaintiff attempted to secure the original by summoning the present Karnavan of the Vadaseri tarwad but he was unsuccessful.
The learned trial Judge, in view of the evidence of P. W. 1 who prepared the copy and compared it with the original, admitted in evidence the copy Ex. A. 6. P. W. 1 gave evidence in a straightforward manner and the learned trial Judge who had the advantage of seeing the witness in the witness box accepted the testimony as true. We see no reason to differ from his conclusion. It therefore follows that the plaintiff is entitled to the contract rate of rent of 231 paras of paddy rent as provided in Ex. A. 6.
4. The case of the defendants, which is now attempted to be argued but which was not raised in the pleadings in the trial court, is that this agreement was subsequently modified by an oral arrangement under which they were absolved from the obligation to pay rent altogether, in view of certain past services which they rendered. As this is a new case not raised in the trial court and in the issues and not tried, we did not permit the learned counsel for the appellant to argue this aspect of the matter. In order to establish this case an application is made to admit certain documents as evidence in this court. We see no reason toadmit the documents as the defendant has not taken any steps to get the written statement amended and has not given any satisfactory explanation why he did not produce these documents in the trial court and raise this question before it. The petition is therefore dismissed. It follows that the plaintiff is entitled to the rent claimed according to the terms and stipulations contained in Ex. A.6.
5. The more serious argument on behalf of the appellants is that the plaintiff, in any event, is not entitled to a charge in respect of the arrears that were claimed in the suit. The learned trial Judge allowed the charge as such a charge was recognised and conferred by the Malabar Tenancy Act 1929 (Section 41). The argument on behalf of the appellants is thatSection 41 of the Act has no application to a 'saswatham' tenure, as such a tenure is outside the purview of the Act. We are, however, unable to accept this argument. The Act applies to the whole of the District of Malabar and Section 2 contains certain exemptions. 'Saswatham' tenure is not one of those which are exempted from the Act. What is more, the definition of 'rent' in Section 3(u) of the Act applies to the paddy rent that is payable by the tenants to the landlord. The definition of 'tenant' also applies to permanent tenants as well as other tenants. There is no reason to hold that a 'saswatham' tenure is outside the provisions of the Act.
It is no doubt true that some of the chapters relate to special tenures, e.g., Chapter 4 deals with renewals. But in the case of 'Saswatham' tenure which is a permanent lease no question of renewal arises and such provisions do not apply to a permanent tenure. But there is no reason for excluding the application of the other provisions of this Act which are not inconsistent with a 'saswatham' tenure. Section 41 occurs in Chapter 7 which is a chapter containing miscellaneous provisions applicable to tenants. Section 41 provides 'Renewal fees and arrears of micbavaram or rent due to the landlord together with interest, if any, payable on the same shall be a charge on the interest of the person from whom they are due in the holding in respect of which they are due as at the time of the creation of such interest, and such charge shall have priority over all other charges on the same except the charge for the revenue and any dues thereon payable to Government or to a local authority and made a charge thereon by any law for the time being in force.'
6. It applies, therefore, not only to renewal fees and arrears of michavaram, that is, amount agreed by a Kanamdar in a kanam deed to be paid periodically, in money or in kind, or in both, to or on behalf of the jenmi, but also to rent due to the landlord. As the defendants are tenants within the definition of a 'tenant' in the Act, and the amount agreed to be paid under the contract is an amount that is lawfully payable by them to the landlord for use and occupation of the lands, the payment can aptly be described as 'rent' within the meaning of the said definition. The mere fact that the tenure is a fixed or a permanent one would not make the provisions of Section 41 inapplicable to the tenure and to the payment that has to be made by the tenant to the landlord. Therefore, we have no hesitation in upholding the view taken by the learned trial Judge that the plaintiff is entitled to the statutory charge for rent under Section 41 of the Act.
7. These are the only points which were raised in the appeal, and we see no reason to differ from the conclusions of the learned Subordinate Judge and the appeal must be dismissed with costs.
8. The Memorandum of cross-objections must also be dismissed with costs. In the plaint it was claimed that there was a provision in the contract for payment of interest on the paddy rent at two paras per 10. This contract, the plaintiff was not able to establish and that was the only ground on which he went to court for trial for sustaining his claim for rent on the arrears from the dates from which the arrears accrued due. As he has failed to establish the legal basis with which he came to the court, he is not entitled to interest on the arrears. We think, therefore, even on this point the view of the trial Judge is correct. The Memorandum of cross-objections is dismissed with costs.