Venkataramana Rao, J.
1. This is a batch of 36 appeals which arise out of suits brought by the appellant, the zamindar of Katur estate, against his tenants in occupation of the lands in the village of Kummannur in his zamindari for recovery of arrears of rent for faslis 1338 to 1340 under Section 77, Estates Land Act. The lands comprise 311 acres 96 cents in extent. The tenants do not dispute the liability to pay rent but only to the rate claimed. The lands were admittedly dry in or about 1860 but most of them have since been converted into wet. The point in controversy is whether the defendants are liable to pay wet rates in respect of those lands or dry rates. The reason why the tenants refused to pay weft rates is that the zamindar has failed to fulfil his obligation of effecting repairs to the main channels which supply water to the lands. One of the questions that fell to be decided therefore was whether there was such an obligation. The lands being originally dry, the tenants were only bound to pay dry rates. The claim to the wet rates would therefore be for an enhancement of rent. The question is whether the zamindar could legally enforce it and whether any consideration moved from him.
2. It is a well-known fact that between 1865 and 1872 the anicut system for supplying water for the irrigation of lands from the Krishna river was introduced. In many of the villages comprised in the Nuzvid zamindari of which Katur also originally formed part it became a realized possibility, that dry lands could be converted into wet by the supply of Krishna water. Both zamindars and tenants took the advantage of the facilities thus afforded and irrigation channels were dug in most of the estates sometimes at the expense of the zamindar and sometimes at the joint expense of the zamindar and the tenant and rents payable by the tenants to the zamindar were adjusted in each estate having regard to the changed conditions. In most of the estates in the Nuzwid zamindari the system which originally prevailed was the asara system or the sharing system which later gave place in many parts to what is known as the visabadi system or the payment of fixed money rent. In the suit zamindari also irrigation channels were dug and particularly in respect of the suit village it appears that between 1879 and 1889 irrigation channels were dug. It is also in evidence that by the time the channels were dug the visabadi system had come into existence in respect of the suit lands. The digging of the channels and the facility of the Krishna water supply rendered possible the conversion of dry lands into wet. Rents were increased.
3. The question therefore is what were the terms arranged between the zamindar and the tenants? It is established in evidence that the main irrigation channels were dug by the zamindar and both the Courts have concurrently found that the zamindar was also maintaining the channels by repairing them at his own expense and for a period of over half a century wet rates were being levied and collected in respect of these lands. Both the Courts have concurrently found that the arrangement between the zamindar and the tenants was that the channels should be dug by the zamindar, that the repairs to them should be effected by him and the right to recover wet rates of rent was dependent upon the zamindar fulfilling his obligation to keep the channels in good repair. The Deputy Collector of the Nuzwid Division found that the zamindar failed to fulfil his obligation to keep the main channels in repair in the suit faslies and therefore he could not levy the usual wet rates, but at the same time he observed that the tenants could not insist on having dry rates because the zamindar having dug the channels, it cannot be said that there was no consideration for the enhancement of rent. The Deputy Collector therefore took the view that it was competent to him to fix a fair rate of rent. The zamindari changed hands and the present zamindar came into possession of the zamindari in or about 1922 and after he came into possession, there was a dispute as regards the obligation to effect repairs and that question seems to have been settled by a mutual conference of the zamindar and the tenants on or about 7th December 1923 at which it was agreed that the zamindar should pay Rs. 160 towards repairs of the channels and another sum of Rs. 40 towards the expenses of a festival connected with the temple of Sri Seetharamaswami every year. Both the lower Courts found that this arrangement was not temporary but permanent. In fixing a fair rate of rent the Deputy Collector found that the enhanced wet rate fetched about Rs. 500 a year. He therefore held that as under the agreement the zamindar was bound to pay Rs. 200 a year and the rate enhanced was Re. 1 per acre, the defendants ought to get a reduction of 200-500 of the extra rupee per acre or annas six on each acre of wet land. He gave a decree accordingly. The learned District Judge confirmed this decree. He observed that
the existence of irrigation channels in a state of good repair is essential for carrying on wet cultivation and the payment of higher wet rates and hence the inference is irresistible, that the execution of repairs or payment for the same is intimately connected with it and is in discharge of a liability to do so as a condition precedent to the recovery of the higher rate of wet rent.
4. He therefore thought that the contract to pay higher rate for wet cultivation without the liability for effecting repairs to the channels was devoid of consideration and was not legally enforceable and that the enforcement of higher rate was dependent upon the fulfilment of this obligation. He further found that the arrangement made between the zamindar and the tenants in December 1923 was permanent in character, but at the same time he took the same view as the learned Deputy Collector that the tenants were not entitled to revert to dry rates by reason of the non-fulfilment of the obligation to effect repairs. He accordingly agreed with the Deputy Collector that a fixation of fair rent was necessitated in the circumstances and was valid. He therefore confirmed the reduction made by the learned Deputy Collector. In so doing he made the following observation:
Of the sum of Rs. 200, a portion was, no doubt, earmarked for a temple festival, but the entire sum was in satisfaction of the liability of the appellant to effect repairs which he owed to the respondents and if the latter chose to divert the whole or any part of it for other purposes, that fact cannot alter its inherent character as the amount paid for the cost of the repairs, so far as the appellant was concerned.
5. I may at once state that this observation was criticized as incorrect by Mr. Govindarajachari and I shall deal with it later. These appeals are by the zamindar and Mr. Govindarajachari on his behalf raised a number of contentions. The first contention was that the obligation of the zamindar was fulfilled by the excavation of the main irrigation channels and the evidence clearly establishes that the contract was only to dig the channels and not to keep them in repair. He referred me to Exs. 14 to 14-b in support thereof. Ex. 14-a is the petition written by an official of the zamindar to the Head Assistant Collector for the sanction of enhancement of rent, the ground stated being that the zamindar constructed the channels and an order was made on that basis. It does not refer to the obligation of the zamindar to keep the channel in repair. Mr. Govindarajachari, therefore contended that where the terms of a contract are clear, the subsequent conduct of the zamindar in having effected repairs should not be taken into consideration on the ground that it is inadmissible to construe a written contract by subsequent conduct. He further contended that the various pattas and muchilikas that were exchanged did not at all refer to the obligation of the zamindar to effect repairs. It seems to me that Ex. 14 series do not evidence the whole contract. It was not necessary for getting the sanction to mention the obligation to keep the channel in repair because the object of getting sanction was that by reason of the digging of the channels water was made available and was being made available for the irrigation of the lands. The letter Ex. 14-a does not mention any arrangement arrived at in pursuance of which the channels were dug and no terms thereof were referred to. There is no written contract in this case and the contract has to be inferred from the conduct and actings of the parties for a series of years. The obligation to effect repairs would arise only as and when necessity for it arose.
6. It will be seen from the evidence that for some years after the digging of the channels, no repairs were effected but thereafter for a period of 30 to 40 years repairs were made by the zamindar and I cannot say that the inference drawn by both the lower Courts that obligation of the zamindar was not only to dig the channels but also to keep them in repair was not correct. The only question that arises is whether the obligation to keep the channels in repair is a condition precedent to the payment of wet rent by the tenants. Mr. Govindarajachari contended that it could not be and that it is clear from the pattas and muchilikas that the tenants were bound to pay at the rate stipulated and if the zamindar failed to fulfil his obligation to effect repairs, the only course open to the tenants was to plead for a remission of rent if it was open to them to do so by way of set off or file a suit for damages. There is a good deal of force in this contention. But on the other handi Mr. Satyanarayana Rao contends that the tenants could plead the non-fulfilment of the obligation by way of failure of consideration and unless water was supplied, it would not be possible for the tenants to raise wet crops on which alone the liability to pay wet rates would arise. I think id unnecessary to go into this question because Mr. Govindarajachari frankly stated that if it be held that the zamindar was under an obligation to effect repairs, he would prefer a reduction of rent rather than effect repairs every year as it has led and would lead to considerable trouble between the zamindar and the tenants. But he objects to the rata of reduction. His point in this behalf is that the lower Courts went wrong in taking into consideration the sum of Rs. 40 being the amount which the tenants claimed for the performance of a festival of Seetharamaswami.
7. Having heard arguments on the point, I am of the opinion that Mr. Gbvindarajachari's objection must be upheld. A duty to contribute to the expenses for the performance of a festival in a temple is not an ordinary incident of the relation of landlord and tenant, whether it is a duty which is to be performed by the landlord or the tenant because it has nothing to do with the object for which the land is let. Therefore unless it is shown to be such an incident, it cannot be taken into consideration in settling a fair rate of rent. In this case it is clear that the obligation of the zamindar to effect necessary repairs has been commuted into a money payment of Rs. 160 and the learned District Judge was certainly not right in the view he took that the entire sum of Rs. 200 fixed at the settlement of 7th December 1923 was in satisfaction of the liability of the zamindar to effect repairs. Whether the tenants can compel the zamindar to pay the said tenants a sum of Rs. 40 on any other ground is unnecessary for me to consider or express an opinion thereon. All that I am concerned with is whether the said sum of Rs. 40 can be taken into consideration in fixing the fair rate of rent. As the said sum does not represent a portion of the money value of repairs as claimed, and therefore does not relate to the lands let, it should not have been taken into account by the lower Courts. So far as the fixation of rent upto Fasli 1347 is concerned, it is agreed by both the parties that the decree of the lower Courts in fixing the proportion as 200-500 should not be disturbed and no claim for any refund should be made, assuming it can be, in regard to the annual contribution of Rs. 40 for the festival for the said faslis. But for the future (i.e.) from Fasli 1348 I direct that the reduction should only be in the proportion of 160-500. The decree of the lower Court must therefore be modified accordingly. Subject to this modification, the second appeals fail and are dismissed. I direct the appellant to pay Rs. 150 as and for the costs of the respondents.