1. The sole question for determination in these appeals is the right of the respondent, the Zamindar of Ganta-manaickanur to charge rent at the enhanced rate of eight fanams a guli on lands originally dry, but cultivated with garden crops by means of wells sunk at the tenant's sole cost.
2. This right was originally based (1) on an alleged custom and (2) on an implied contract. With the former we have now nothing to do. As pointed out by Subramania Ayyar, J., in his judgment in this case when it first came before this Court Aru-mugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa I.L.R. (1905) Mad. 444. Such a custom even if established would be unenforceable as conflicting with Section 11 of Madras Act VIII of 1865; and in Arumugam Chetti v. Raja Venkateswara Ettappa L.P.A. Nos. 35 to 61 of 1905,(unreported)the judgment, in upholding the order of remand specially lays down that the question of custom could not be reopened (vide also Paramasami Iyengar v. Pusala Tevan : (1910)20MLJ142 . It has therefore only to be considered whether there is a valid and enforceable contract for the payment of the enhanced rate. Toe learned District Judge, reversing the decision of the Sub Collector, has found that there was an implied contract (agreement) in every case, and that it is not void for want of consideration.
3. The existence of an implied agreement is deduced mainly from the payment of the enhanced rate by the litigating tenants (appellants) for a number of years varying from 2 to 40. The corroborative evidence is meagre, but I am not prepared in second appeal to set aside the District Judge's finding in this respect.
4. The second point stands on a different footing. The necessity for consideration of some sort from implied contract to pay enhanced rent has been pointed out by Subramania Ayyar, J., in the clearest manner in his judgment above referred to, and I do not understand it to be seriously disputed by the learned Advocate-General. Nothing to the contrary is contained in either of the judgments referred to by the District Judge. Natesa Gramani v. Venkatxrama Reddi I.L.R. (1907) Mad. 510 and Suppa Pillii v. Nagayasami Thumbiohi Naicker I.L.R. (1908) Mad. 19 The suggestion that the word ' contract' in the section is loosely used in the sense of 'agreement' cannot possibly be aocepted, Of course the consideration may be of the same implied nature as the covenant to pay. But consideration of some kind there must be if the latter is to be treated as an enforceable contract.
5. Now what is the consideration in the present case? The learned District Judge says that there was 'ample consideration,' but it is very difficult, to see from a perusal of his judgment, what form he considers it to have taken. He agrees with the Sub-Collector that the landlord's permission was not necessary for the tenant to sink a well so that such consent was not the consideration.; The only, consideration which I can find indicated in paragraphs 14-16 of his judgment is in the shape of an abstention on the part of the landlord from exercising his right to revert to the varam system when the tenant began to cultivate the more valuable crop with the aid of the well water. Of course, if the landlord really had such a right his abstention from resorting to it might be viewed as consideration, but the District Judge appears to me to have assumed the existence of such a right without any evidence whatever.
6. The right in question is conferred by Clause 3 of Section 11 of the Rent Recovery Act and applies only to cases where there is no contract, express or implied, regulating the rates of rent. In the present suits it is admitted that prior to the construction of the wells, the tenants had always been paying at the uniform punjah rate of four fanims a guli for the suit lands, a circumstance which justifies the difference of an implied contract to continue to pay at the rate [vide Venkatagopal v. Rangappa I.L.R. (1845) Mad. 365].
7. The learned Advocate General, however, seeks to meet this objection by arguing that in these cases the money rents were fixed with reference to the particular crop raised, and not on the holding itself; that the payment of four fanams a guli was only for so long as a dry crop was raised that on the tenant raising a garden crop the implied contract ceased to apply that a new rate had then to be determined, and that, in the absence of a contract regulating it, Clause 3 became applicable and the landlord was entitled to claim varam: and that this abstention from so doing forma the real consideration for tenants agreement to pay the higher rent.
8. This is precisely the kind of case referred to as conceivable by Hutchins, J, in Venkatagiri Raja v. Pitchana I.L.R. (1886) Mad. 27, and if the existence of such a system were established the argument would be perfectly sound. But it is certainly not established here, any more than there was in the case last quoted. In Suppa Pitlai V. Nagayasami Thumbiehi Naicker I.L.R. (1908) Mad. 19, there Was a distinct finding in support of it, and the case of Natesa Gramani v. Venhatarama Reddi I.L.R. (1907) Mad. 510 simply lays down that such a system is not illegal and remands the case for evidence as to its existence.
9. In the present case the District Judge has certainly not found in favour of such a system: all he says is this Under Clause 3, the local usage would have to be ascertained, and it might very well prove that the local usages was, as appellants originally alleged, to pay different rates according to the crops raised, and not according to the classification of the land. '
10. And, indeed, there is absolutely no evidence in the case to support the existence of such a system. I have already referred to the fact that the tenants were admittedly, prior to the sinking of the wells, paying at a uniform dry rate as far back as can be traced. There is nothing to indicate that this charge was variable according to the crops raised and the evidence of the respondent's own manager (defendant's seventh witness) is incompatible with such a suggestion. He says not a word of any variable charge according to the nature of the crop, but speaks of the dry lands being assessed at a uniform rate of four fanatns a guli. In fact the learned Advocate-General has to rely soley on passages quoted from the ' Madura District Manual' tending to show that a system of the kind he alleges formerly prevailed in the Dindigul taluk. It is impossible to accept it as established by such means The passages quoted are of a general nature without reference to this particular village or zamindari and while remarks in a ' District Manual ' may legitimately be referred to and are of great service in corroborating or contradicting evidence recorded in any individual case, they cannot take the place of such evidence or be made the sole basis for a finding on a point of this nature.
11. I am therefore constrained to hold that the finding of the learned District Judge that the agreements to pay the enhanced rent ware supported by consideration is unsupported by any evidence, and cannot be upheld,
12. There is no reason for remanding the suits for a fresh finding, after taking farther evidence; the question of consideration was most prominently put forward when the suits ware last remanded; and if the respondent has not adduced proper evidence he has only himself to thank. The decrees of the District Judge must therefore be set aside-and those of the Sub Collector restored. The respondent will-be liable for the appellants cost throughout.
Abdur Rahim, J.
13. I agree.