1. This is a petition by the defendant to revise the decree of the District Munsif of Manamadura in Section C. Suit No. 123 of 1931. It is unnecessary to refer to the previous history of the suit or its transfer 'from the revenue Court to the Small Cause Court, except to say that its original presentation in revenue Court explains certain expressions in the plaint which may not be appropriate to the suit if it had been intended to file it in the first instance in the Small Cause Court. Before dealing with the merits it is perhaps convenient to deal with one contention raised by Mr. Patanjali Sastri, that while point No. 1 noted for determination in para. 4 of the District Munsif's judgment speaks of the claim as thirva or cess, an application was at one stage made before the Small Cause Court to have the plaint amended by converting it into a claim for kanganam and Kulavettu cess. It would appear that this petition was dismissed as not pressed on. 3rd September 1931, but I think that this step was probably taken as Mr. Kutti Krishna Menon suggests because the Court had by that time apparently expressed its view in favour of the plaintiff even on the plaint as it had been framed. Now that the matter is being sent back for a revised finding, it may be hardship if the plaintiff should be held precluded from pressing that amendment petition. I would therefore ask the lower Court in dealing with the matter now on remand to take into account the amendment petition (I.A. No. 220 of 1931) as if it is still remaining undisposed of. This will of course entitle the defendant to press his objection to the amendment petition as well.
2. On the merits one of the main contentions between the parties is that embodied in point No. 1 in para. 4 of the District Munsif's judgment. It is unnecessary for the present purpose to say whether the defendant's story as to the origin of the manibham is proved or not because even if that particular story is not proved, the question will still remain what are the terms, if any on which the manibham lands are held by the defendant. This question is disposed of by the District Munsif practically on what he considers to have been decided in a former suit between the parties viz : ., O.S. No. 555 of 1928 on the file of the District Munsif of Manamadura (Ex. B in the present suit). The District Munsif states that it has been definitely held in that suit that thirva is payable in respect of the suit land. Mr. Sastriar rightly argues that that suit was ultimately dismissed and therefore no conclusiveness can attach to any observation made in the course of that judgment. But the learned District Munsif has fallen into a more serious error in reading into that judgment any finding of the kind above stated. Even Mr. Kutti Krishna Menon who appears for the estate is not able to find any such expression of opinion in that judgment. The lower Court does not give any other reason in support. of its finding on the first point. I am therefore obliged to sol; aside that finding and call for a revised finding on the evidence on record on the first point. Finding to be submitted before 23rd April 1934. Seven days for objections. In compliance with the abovesaid order the District Munsif of Manamadura submitted the following:
3. Finding. - This case has been remanded by the High Court for submission of a fresh finding on the first point for consideration. The plaintiff has been given liberty to press the amendment petition, I. A. No. 220 of 1931 put in by him. I have allowed the amendment petition and I have given my reasons in the order passed thereon. The petition was not seriously opposed and the defendant's vakil, stated that even without the amendment the defendant understood the claim to relate to kanganam and kulavettu and that evidence was let in by both sides on that footing. The defendant put in an additional written statement denying his liability to pay kanganam and kulavettu. Neither side chose to let in any fresh evidence and the vakils stated that all the necessary evidence had been let in before and the case was argued on the evidence already recorded. The point for consideration is whether the defendant is liable to pay kulavettu and kanganam in respect of the suit lands which are admittedly manibham lands.
4. The plaintiff can only succeed on all or any of the following grounds (1) under a statutory liability imposed upon the defendant; (2) under an express contract; (3) under usage having the force of law. The plaintiff has not shown that the defendant is liable to pay kulavettu and kanganam under any statute. He has not alleged any contract under which the defendant is liable nor has any such contract been proved in this case. The only ground alleged in the plaint as amended is that the defendant is liable to pay kulavettu and kanganam according to immemorial usage. There is no evidence on the plaintiff's side that kanganam and kulavettu have been paid in respact of the suit lands from time immemorial or for a number of years. The only evidence let in on the side of the plaintiff is that of P.W. 1, the karnam headman, who says that he entered service in fasli 1337 only and that he does not know whether kanganam and kulavettu have been collected prior to fasli 1337. In the result there is no evidence on record to show that kanganam and kulavettu have been paid dur-ring previous faslies. Besides, kanganam is a cess levied in respect of supervision of harvest and it has been held in Venkatachellam Chetty v. Ayyamperumal Tevan 1919 Mad 236 that it is only such1 cesses which have any direct or any proximate bearing on the purpose for which the lands are let that can be claimed by the landlord. In the case of manibham lands even admitting that they are rent paying manibham lands, the rent payable to the landlord is fixed and there is no necessity for any supervision of the harvest. In this view, the levy of this cess, would be illegal and the plaintiff cannot recover this cess even if he has proved payment of the cess for a number of years. Kulavettu is a cess collected in respect of charges incurred for the repairs of tanks in the village. As between the landlord and a raiyat it has been held that the levy of this cess is proper if the cess has been paid for a number of years. But in this case, as I have already stated, there is no evidence that the defendant has been paying this cess during previous years for a long time.
4. The defendant's vakil further contended that the suit lands are Ejmankandi Sudha rnanibham lands on which no rent is payable to the landlord and kanganam and kulavettu are not leviable in respect of such lands. The plaintiff's vakil argued that the claim has nothing to do with the question whether the lands are held rent free or on payment of rent and that the plaintiff is entitled to recover the cesses even though the lands are rent free inam. I do not think it is necessary for me to find in this suit whether the suit lands are rent free or rent paying inam lands. I have dealt with the plaintiff's claim irrespective of the question whether any rent is payable on the suit lands or not. For the reasons stated above, I find that the plaintiff has not established the right to claim kanganam and kulavettu in respect of the suit lands.