M. Natesan, J.
1. The plaintiff Devasthanam in a suit for arrears of rent from agricultural land is the appellant in this second appeal. In an auction held by the plaintiff devasthanam the defendant became the highest bidder for the lease of the land for fasli 1366 at a fixed rent of 120 kalams of paddy and nineteen bundles of straw and a moiety of catch crops.
2. It is the admitted case of the parties that subsequent to the auction and the acceptance of the lease, no written contract was entered into between the parties. This suit has been filed for the recovery of the balance of arrears of rent for the fasli in question. The suit was filed on 31st March, 1960. The plaint states that the cause of action for the recovery of rent arose on 31st March, 1957, the last day of the agricultural year. As far as the catch crops were concerned the produce had to be shared and so the share was payable when the produce was realised or harvested and that was in April, 1957. The main defence is limitation. It is pleaded for the defendant that the shamba harvest from which rent was to be paid was over by the 15th of February, 1957, and the suit instituted beyond three years from that period was barred by limitation. In answer to the plea of limitation the plaintiff 'put forward two aspects of the matter. First it was argued that limitation did not start running in the case as there were proceedings for determination of the fair rent in respect of the land and that till the proceedings ended one way or other, the cause of action did not arise. It is seen that the tenant filed two petitions. P. No. 5 of 1957 in the Rent Court was for remission on the ground that the crops were affected by pest. 25 per cent. for remission was granted and it became final. The other P. No. 160 of 1957 for the fixation of fair rent had a chequered career. There was an appeal, a remand and a revision to this Court. Ultimately the Devasthanam succeeded and it was held in October, 1960 that the tenant was not entitled to the fixation of fair rent for the land in question. In support of the proposition that these proceedings could be relied upon as saving limitation, reference was made by the learned Counsel, Mr. T.K. Subramania Pillai to the decision of the Judicial Committee in Rangayya Appa Rao v. Bobha Sriramulu L.R. 31 I.A 17 : 1903 14 M.L.J. 1 : I.L.R. (1903) Mad. 143., The argument pressed before me relying on this decision is that till the fair rent was fixed for the land in question it could not be said that rent has become due. Article 110 of the Limitation Act, 1908 which is the Article applicable provides a period of three years commencing from when the arrears became due. Mr. T.K. Subramania Pillai contends that in the case of an agricultural tenant when the Fair Rent Act is in operation rent could not be considered to be due until the fair rent is finally fixed in proceedings under the Act. It is stated that in the present case proceedings were commenced under the Act before the expiry of the Fasli and it cannot be said that the rent had fallen due at any time anterior to the final disposal of the application for fixation of fair rent. In the view I am taking on the second point, it is unnecessary to decide this point and I may say that prima facie this argument does not appeal to me. It cannot be said that the rent falls into arrears and becomes due only after fair rent is fixed. The process of fixation of rent may take considerable time. The Act itself does not suspend the running of the period of limitation or interdict institution of suits till the determination of fair rent. The contract rent may normally be assumed to be the fair rent. The Fair Rent Act only fixes what the proper rent is. If the rent has fallen due by then, the determination of the fair rent will relate to the rent payable. If the plaintiff filed the suit as per the contract and later fair rent is determined, as regards the quantum of rent the civil Court will be bound by the decision of the Rent Court. In the absence of any statutory provision staying the suit for recovery of rent, it cannot be said that the limitation for a suit in the civil Court for the recovery of arrears is even suspended. So far as the case before the Judicial Committee is concerned, it was no doubt held that where it is necessary for the landlord to take proceedings under the Madras Act VIII of 1865 to have the proper rate of rent ascertained the period of limitation in a suit for arrears of rent runs from the date of the final decree determining the rent and not from the close of the Fasli year for which the rent is payable. The basis of the decision is Section 7 of the Act, VIII of 1865 whereby it is provided that no suit brought and no legal proceedings taken to enforce the terms of a tenancy shall be sustainable unless pattas and muchilikas have been exchanged as provided or unless it be proved that the party attempting to enforce the contract had tendered such a patta or muchilika as the other party was bound to accept or unless both parties shall have agreed to dispense with pattas and muchilikas. Section 9 provides that when a tenant shall for one month after demand have refused to accept such a patta as the land holders specified in Section 3 are entitled to impose and to grant his muchilika in exchange it shall be lawful for such landholders to proceed by a summary suit before the Collector to enforce acceptance of the patta. Their Lordships observed (pages 150 and 151).
In order to see when rent becomes due in a case like the present, it is necessary to turn to the Rent Recovery Act (Madras Act VIII of 1865). The Act enacts (Section 3) that certain landholders and others shall enter into Written engagements with their tenants, to be embodied in pattas and muchilakas which (Section 4) must contain, amongst other things, the amount and nature of the rent. By Section 7 no suit or legal proceedings for rent can be sustained unless patta and muchilika have been exchanged, or a patta has been tendered such as the tenant was bound to accept or both parties have agreed to dispense with such documents. If a patta is tendered and the tenant refuses to accept it, the landholder (Section 9) may proceed by summary suit before the Collector to enforce acceptance of the patta. And in such a suit it is for the Collector to settle the terms of the tenancy including the rent in accordance with the principles laid down in the Act...
Under this procedure it seems clear that as long as proceedings are pending before the Collector and on appeal from him before the civil Courts, the rate of rent is in suspense, for no one can say what it will prove to be and that therefore no arrear of rent can be said to have become due within the meaning of the Limitation Act.
In a case like the present one, when parties have agreed on the rent, it cannot be said that the rent does not fall due at the time stipulated. No doubt the tenant is entitled to pay and the landlord bound to collect only the fair rent in a case where the Pair Rent Act applies. The parties by themselves may agree to what the fair rent is. If they are not agreed upon the fair rent then comes the need to resort to the provision for determination of the fair rent. But till the fair rent is determined one may assume that the rent contracted is the fair rent. Besides the Fair Rent Act defines what the fair rent is such being the position, in my view, the decision above-mentioned relating to an entirely different Act cannot apply. However it is unnecessary for the plaintiff to rely on this aspect of the case.
3. The Courts below are of the view that the claim is barred by limitation as the rent fell due by about 15th February, 1957 and the suit has been instituted only on 31st March, 1960. The Courts below accepted the argument on behalf of the defendant that the rent was payable as and when the crops were harvested. As stated at the outset, there is no written contract embodying the terms of the tenancy and no materials were placed before the Court as to the terms of the tenancy. The Courts below approached the determination of the question as to when the rent fell in arrears throwing upon the plaintiff the burden of establishing positively that the rent was not payable when there was harvest. It is assumed that normally the rent could become payable immediately after the harvest and it is for the person who sets up a different date for payment to prove it. Inasmuch as the plaintiff has stated that the rent fell due on the last day of the agricultural year or on the last day of the period of tenancy, the latter being more favourable to the plaintiff, the learned Judge held that it is for him to establish that the rent was payable on the last date as contended for. In the absence of the contract of tenancy to prove the related terms the Courts below held that the claim is barred by limitation. But the plaintiff is assisted here by the decision of the Judicial Committee in Rangayya Appa Rao v. Bobba Sriramulu , above cited where while discussing the starting point for the commencement of the limitation in a suit for arrears of rent, their Lordships observed (at page 150):
The point of time from which, under the Limitation Act, the period of limitations is to run is that at which the arrears became due. In most cases no doubt the point of time at which rent becomes due is the close of the period in respect of which it is to be paid. But this is not necessarily always the case in India and the Limitation Act is an Act for All-India. Legislation, or custom or express contract or the special circumstances of any case may make rent become due at a point of time different from the close of the period in respect of which it is to be paid.
It is the plaintiff's case that the rent is payable at the close of the period in respect of which it has to be paid. It is the defendant who puts forward that the rent is payable earlier at the time of the harvest. No special circumstances are made out. One can understand in the case of produce rent, that the produce will be shared at the time of the harvest. In the present case so far as the catch crops are concerned, limitation starts in April with the harvest. For the rest of the rent there is no evidence of any custom, local or provincial which provides that the rent should be paid at the time of the harvest. Admittedly there is no legislation requiring payment of rent at the time of the harvest where the parties have stipulated for fixed rent. Therefore the normal rule that rent is payable at the close of the period of the lease should be applied. The Courts below ought to have held that it is for the defendant who pleaded a special period to establish his case. There is absolutely no evidence of any local custom. It is not disputed that the suit will not be barred by limitation if the normal rule above referred to is applied. Only if the defendant's case that the rent became payable at the harvest is accepted, the suit gets barred by limitation. The second appeal has therefore to be allowed and the plaintiff's claim decreed. The trial Court while giving credit to the payments made by the defendant ascertained that the balance of rent converted into cash comes to Rs. 737-25 Ps. This is after giving due allowance for the 25 per cent. remission on account of failure of crops due to pest.
4. In the result, the decree and judgments of the Courts below disallowing the, plaintiff's claim for the sum of Rs. 737-25 ps. are set aside. The decree of the trial Court will be modified giving the plaintiff a decree for the;sum of Rs. 737-25 Ps. for the value of 81 kalams and 11 marakkals of paddy, in addition to the decree in favour of the plaintiff in respect of green gram already granted.
5. Now coming to the question of costs, this is a fit and proper case where the plaintiff should be awarded proportionate costs in all the three Courts except Counsel fee. As regards Advocate's fee, the plaintiff is awarded Advocate's fee only in this Court.
6. The Second Appeal is allowed and the suit decreed accordingly.
7. No leave.