1. In all these second appeals the appellant is the Mahant of Tirupati and the respondents are the ryots of Karvetnagar Estate. In all of them the question arises whether the landholder was entitled to charge garden rates for crops grown with the aid of well water. In Second Appeals Nos. 1437 to 1439 and 1440 to 1447 there is a question whether the landholder was entitled to charge for a second crop cultivated on dry land with the aid of well water. In Second Appeals Nos. 1440 to 1447 there is a further question whether the District Judge was right in disallowing the charge for mathiri kasuvu (straw rent), and in Second Appeals Nos. 1437 to 1439 whether he was right in disallowing the charge for sadalwar (stationery) which he allowed in the former batch.
2. In Venkata Perumal v. Ramudu 27 Ind. Cas. 688 : (1915) M.W.N. 132 mathiri kasuvu and sadalwar were treated as charges incidental to the tenure of the land and payable with the rent. Following that decision we allow the appeals in this respect.
3. On the question common to all these appeals, the lower Courts are unanimous in finding that the wells were sunk at the cost of the ryots without any assistance from the landholder, but they have not decided whether they were sunk before or after the introduction of the Madras Estates Land Act, nor has the District Judge recorded any finding as to the length of time that these garden rates have been in force, although the Sub-Collector stated in his judgment that it was admitted that these rates had been accepted in all faslies from 1243 onwards. There is evidence that a number of wells are outside the holdings which they irrigate and are either in poramboke or in the patta land of other ryots. The District Judge was of opinion that it was immaterial whether the well was actually situated in the plaint lands or not. We cannot accept this view. In certain conditions it would be very material. An improvement which prejudicially affected another land of the landholder, if made without his consent in writing, would not be an improvement of which the ryot could claim the advantage provided by Section 13(3) of the Act vide the definition of improvement in Section 3(4).
4. In a similar case, coming from the same district, this Court in Govind Doss v. Gurram Chinnappa Naidu 27 Ind. Cas. 869 dealing with the case of wells sunk in estate poramboke, held that the mere abstention of the landholder to charge rent on the sites occupied by the wells might amount in law to a consideration for a contract to pay enhanced rates.
5. In Govind Doss v. Gurram Chinnappa Naidu 27 Ind. Cas. 869 and Venkata Perumal v. Ramudu 27 Ind. Cas. 688 : (1915) M.W.N. 132 it was decided that Section 13 (3) would not affect the liability of ryots to pay enhanced rents if the improvements were made before the Act and if there had been a contract between the landlord and the tenant entered into before the passing of the Act to pay at such rates.
6. It was, moreover, held in Govind Doss v. Gurram Chinnappa Naidu 27 Ind. Cas. 869 and in Arumugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa 15 M.L.J. 292 that an implied contract to pay increased rent might be presumed from a continued payment for a number of years at such rates.
7. We do not fallow the learned Judges who decided Arunachelum Chetty v. Syyad Ahamed Ambalam 31 Ind Cas. 539: 19 M.L.T. 138 that only the existence of agreements can be presumed by such payments spread over a long period of time but that consideration for such agreements cannot be presumed. Both presumptions are presumptions of fact. There is no principle by which Courts are to be enabled to make the one presumption and disabled from making the other. In Armugam Chetty v. Jagaveera Rama Venkateswara 8 Ind. Cas. 330 this is recognised by one of the learned Judges who decided Arunachelum. Chetty v. Syyad Ahamed Ambalam 31 Ind Cas. 539. For he says there--' Of course the consideration may be of the same implied nature as the covenant to pay.'
8. In Arumugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa 15 M.L.J. 292 Subramania Aiyar, J. declared that a presumption of consideration might be justified on the lost grant principle, on the ground that after a great many years it would be unfair to compel the landholder to prove consideration; but he declined to presume consideration on the facts of the case, for the reason that there would be no difficulty in the landholder proving what the consideration was if payments had been made at a higher rate for short periods ranging only from one to 18 years. It was contended that as the plaintiff did not claim the enhanced rate on the basis of a contract supported by the consideration proceeding from him in the shape of an undertaking not to charge rent for the well--poramboke sites on which the tenants had sunk wells, and as he did not even set up an implied contract to be presumed from very long continued payments of higher rents, this Court could not in second appeal allow him to raise for the first time the question of the right of enhancement based on contract. Reliance is placed for this contention on the decision in Arunackelum, Chetti v. Syyad Ahamedl Ambalam (1916) 1 M.W.N. 237 already quoted. But the distinction between contract rates and customary rates is a very subtle one as between landlords and tenants. No doubt Section 11 of Act VIII of 1865 makes some distinctions between local usage and contracts for rents, express or implied, but Section 13 (3) of Madras Act I of 1908 does not preserve this distinction. It is impossible to expect to find in the pleadings in Mofussil Courts exhaustive statements as to basis of claims and defences, expressing in accurate legal language the alternative and distinctive ways of founding and describing the rights put forward in the pleadings. The facts and the evidence to prove a contract, where the contract is a very old one, are almost the same as those on which a custom to pay enhanced rents has to be proved if such a custom is valid. In the oases of Gopind Doss v. Gurram Chinnappa Naidu 27 Ind. Cas. 869and Venkata Perumal v. Ramudu 27 Ind. Cas. 688: 17 M.L.T. 129 the claim put forward to enhanced rent was based on usage and the question whether the usage might have been the result of a valid contract was gone into by this Court without objection. As the learned Judges in the case reported as Arunachelum Chetty v. Syyad Ahamed Ambalam (1916) 1 M.W.N. 237 refused to allow the claim to enhancement to be based on a contract owing to their construction of the language of Sir Subramania Aiyar's judgment in Arumugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa 15 M.L.J. 292 (as regards whether consideration can be presumed from the evidence of long usage to pay higher rent) and as we differ from that construction, we do not feel ourselves bound by that decision to decline to make a remand so as to have a finding from the lower Appellate Court on the question of express or implied contract.
9. We must, therefore call for fresh findings from the District Judge on the following questions:
(1) In which of these appeals are the wells which irrigate the ryot's holding situated in land for the occupation of which the landlord might legally but has not in fact, charged any additional rent?
(2) In each of these cases were the wells constructed before or after the passing of Madras Act I of 1908?
(3) For how many years in each case have the ryots been paying these increased garden rates without protest?
10. The findings should be returned within two months from this date. Fresh evidence may be adduced. Ten days are allowed for filing objections.
11. In compliance with the order contained in the above judgment the District Judge of North Arcot submitted the following
1. I am directed to submit findings on three new issues as specified in the judgment of the High Court.
2. In Appeal Suits Nos. 364 to 371 of 1913, corresponding to second Appeals Nos. 1440 to 1447 of 1914 on the file of the High Court, the parties have entered into a compromise that the rates of rent claimed in Fash 1319 are to be considered as the proper rates payable by the ryots and that the suits should be dismissed accordingly, each party bearing his own costs throughout. Findings are, therefore, unnecessary in these suits.
3. As regards the other four suits the defendant in Appeal Suit No. 792 of 1913 and the plaintiffs in Appeal Suits Nos. 676, 718 and 719 of 1913 are ex parte. The appellant called the Village Monegar who is also a ryot owning lands there. He says he knows the lands of the plaintiffs in Appeal Suits Nos. 670, 718 and 719 of 1913 (Second Appeals Nos. 1437, 1438 and 14i9 of 1914), but he does not know the defendant in Appeal Suit No. 792 of 1913 (Second Appeal No. 1126 of 1914). No new wells have been dug in the last 10 or 12 years, and all wells have been in existence as long as he can remember (he is now aged 30). When crop-war rent is charged the sites of the wells are allowed free of rent. No rents other than crop war have ever been paid. The plaintiff in Appeal Suit No. 718 of 1913 was examined as P. W. No. 1 in the lower Court, and he then alleged that he had dug a well three years previously and bought another one, and he had never previously raised wet crops. He, however, accepted a patta in the usual general terms. On the other band P.W. No. 4, plaintiff in one of the compromised suits, stated that the rates now entered in the pattas had been entered in pattas as long as he could remember, that is for more than 50 years, and that such rates bad been collected. P. W. No. 3, plaintiff in Appeal Suit No. 719 of 1913, stated in the original trial that he irrigated his crops with water from wells dug by him, but he has not now appeared to say when he dug his wells.
4. As regards Appeal Suit No. 792 of 1913 (Summary Suit No. 434 of 1912) the karnam stated in the original trial that no well had been sunk during his time, but he does not seem to have had knowledge of the village prior to Fasli 1319. The ryot's witness stated that wells had been sunk 10 years previously and he admitted that the rates of rent claimed had been in force to his knowledge for 20 or 25 years.
5. As regards the issues now remanded by the High Court I must find that:
(1) in no case has the landlord charged rent for the sites of wells though he might legally have done so;
(2) the wells concerned in these suits were constructed before the passing of Madras Act I of 1908 and
(3) the ryots have been paying these rates without protest from time immemorial.
6. With reference to the new third issue, I might perhaps remark that these suits relate to lands in the Karvetnagar Zamindari, in which it has been the immemorial custom to issue pattas based upon the original crop-sharing principle. These pattas provided rates for all crops and if a ryot grew an inferior crop he paid less rent, but if he grew a superior crop he paid more rent irrespective of the source of irrigation. The contract is the original and ancient one, though clauses or rates relating to superior wet crops may not come into operation, unless or until water is available for irrigation. One consideration for paying higher rates when superior crops are raised is the understanding that lower rates or no rent at all shall be paid when inferior crops are raised or the lands lie waste from unavoidable circumstances. The system is in accordance with the custom of the country to adjust the demand in accordance with the ability of the individual to pay.
7. These second appeals coming on for final hearing this day after the return of the' findings of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following
Second Appeal No. 1126 op 1914.
12. The findings are accepted.
13. The result is that the second appeal is allowed and the decree of the lower Appellate Court is varied accordingly with costs in this Court to be paid to the appellant by the respondent.
Second Appeals Nos. 1437 to 1439 of 1914.
14. The findings are accepted and the suits are dismissed with costs throughout of the appellant. Vakil's fee in each case is Rs. 12.
15. (Second Appeals Nos. 1440 to 1447 of 1914 were adjourned for one week to enable the parties to file properly stamped petitions of compromise).