Madhavan Nair, J.
1. In both these second appeals the plaintiff, the Zamindar of Sapthur, is the appellant. In Second Appeal No. 355/33 defendant 2 in the suit, the only contesting defendant, has filed a memorandum of objections to the lower appellate Court's decree. These second appeals arise out of two suits, O.S. Nos. 420 and 421 of 1928. Both the suits were tried together for the sake of convenience and also for the reason that in both the suits the questions raised are the same. Both relate to inams which are situate inside the limits of the zamindari. In the first suit defendant 1, who is ex parte, is the holder of a pre-settlement nattamai service (village service) inam. It was enfranchised in his favour in 1908 and subsequently he sold it to defendant 2 under Ex. II, In the second suit, tfiat is O.S. No. 421 of 1928, the lands concerned are called josyam manibam and were granted in inam to a predecessor of the defendant by a predecessor of the plaintiff under Ex. III of the year 1814.
2. In both these suits the plaintiff claims from the respective defendants three cesses called chattram and kulavettu, and water rate for the second crop which was admittedly raised in the suit faslis, namely 1335 and 1336, on both the lands. The object of the chattram cess is the maintenance of the choultry at the headquarters of the zamindari. The Chattram is occupied by the zamin officials who pay rent therefor. A portion of the chattram is used for accommodating tenants of the zamindar who come to the headquarters. The plaintiff claims that for the object of the keeping the chattram the tenants have been paying for a long time cess at a certain rate and that they are bound to pay the same now. Kulavettu is a cess claimed to enable the zamindar to keep in good repair the tank under which the suit lands are situate. The plaintiff claims that the tenants have been in the habit of paying this cess from ancient times like the previous one and that they are bound to pay the same now. The third claim relates to water rate which is claimed only if the suit lands are cultivated a second time with water taken from the zamindar's tanks. For the first crop cultivation no rate is claimed. Generally stated, the defendants denied the factum of payment and their legal liability to pay these cesses. Three points arise for consideration in these second appeals, and they are (1) whether the suit lands are liable to the cess called chattram, (2) whether the suit lands are liable to the cess called Kulavettu, and (3) whether the suit lands are liable to second crop assessment.
3. With respect to the first cess chattram, both the lower Courts in both the suits found that the suit lands were not liable to pay the cess. With respect to the cess called kulavettu, the first Court found in the first suit that the inamdar was bound to pay the cess; in the second suit it held that as the cess was not paid uniformly for a long time the inamdar was not liable to pay it. With respect to the water rate, the first Court held that the tenants in both the suits are liable to pay it. In appeal the learned Subordinate Judge agreed as already stated with the District Munsif that chattram cess was not payable in either of the suits; with respect to kulavettu the appellate Court held that that also was riot payable in either of the suits, thus differing from the District Munsif in his conclusion in one suit on this point and agreeing with him in the other. With respect to the water rate for second crop cultivation the learned Judge held that the defendant in the first suit should pay this rate claimed as was held by the District Munsif, but he reduced the rate from Rs. 12, the rate ordered by the District Munsif, to Rs. 6. With respect to the second suit the learned Judge held that the defendant is not bound to pay any water rate at all.
4. In second appeal Mr. Sitarama Rao argues that he is entitled to claim chattram cess and kulavettu cess from the lands in both the suits and water rate from the lands in the second suit also. He also argues that the lower appellate Court should not have reduced the rate. In the memorandum of objections it is argued that the lower appellate Court was wrong in upholding the Munsif's finding that the plaintiff is entitled to collect water rate for second crop cultivation in the first suit and that the rate if leviable should have been reduced further. Thus the legality of enforcing the plaintiff's claim with regard to all the three cesses is now before this Court.
5. I will first deal with the chattram cess. This claim can be disposed of quite easily. Both the Courts agree that this payment cannot be claimed by the zamindar. The only contention of the appellant is that these payments, according to the findings of the lower Courts, have been going on for a long time. The mere fact that the cess has been collected from time immemorial, even if true, cannot impose a legal liability on the tenants to pay the cess unless the plaintiff succeeds in establishing a legal basis for the claim. That legal basis must, according to the decisions, be a contract, either proved or presumed, supported by consideration. The correct principle applicable to a case like the present is stated in Thiruvanatha Sevuga Pandia Thevar v. Sankaramurthi Naidu 1919 Mad 535. In that case it was held that cesses paid for a long time by the tenant without objection are not necessarily legal and recoverable by the landlord. Such of them as have a direct or proximate bearing on the purposes for which the land was let are prima facie legal, while those having no such bearing are only recoverable under a contract supported by consideration or under a usage proved or presumed from the nature of the case and long course of payments. Mere payment for any length of time would not make a purely voluntary cess enforceable it is not legally leviable. It will be payable if there is a valid express or implied contract. A contract cannot be implied where the payment is without consideration and is a voluntary one : see Sundaram Ayvar v. Theetharappa Mudaliar 1918 Mad. 1055. According to the finding in this case the cess claimed has no direct or proximate bearing on the purposes for which the land was let. This is clear from the fact that the cess is for keeping the chattram while the land was given for cultivation.
6. The holding of the one has nothing to do with the levy of the other. If the decision in Thiruvanatha Sevuga Pandia Thevar v. Sankaramurthi Naidu 1919 Mad 535 lays down the correct principle, as I think it does, then the lower Courts are right in holding that the zamindar cannot claim chattram cess in either of these cases. Mr. Patanjali Sastri on behalf of the respondents argues that since both the Courts have found in both the cases that chattram cess is not payable, the finding must be accepted as a finding of fact. But it is not necessary to consider this question as I am of opinion that no legal origin has been proved for the payment of this cess and therefore the cess is not claimable by the plaintiff in either of ' the suits. This cess is like the tirupani and the mahimai cesses, which this Court has held has no legal origin, and cannot be claimed from the tenants by the zamindar. Now coming to the cess called kulavettu, the first Court, as already stated, has allowed it in the first suit and has disallowed it in the second suit. The cess has been found to be legal in origin by the fir at Court; but it has not allowed it in the second suit for the reason that the plaintiff has not proved continuous and unchallenged payment of the cess from early times. After discussing the evidence the learned District Munsif says in para. 28 of his judgment:
It is thus apparent that from 1891 there have been active disputes between the various branches of the inamdar's family which finally culminated in the criminal proceedings in 1909.
7. Towards the end of the paragraph he says:
There is absolutely no document showing that the cess was collected prior to 1892 without protest. The fact that from 1802, the date of the Permanent Settlement, down to 1885, i.e., for more than half a century no such collection was made shows that it was the intention of the grantor not to claim the cesses. Thus the terms of Ex. 3 and the subsequent conduct show clearly that the cess is not leviable from the josyam inam.
8. In para. 29 he says:
For the plaintiff the collection of the cess is sought to be justified solely upon the ground that it is the immemorial custom of the zemin. But no such custom can be invoked where it is shown that (excluding the two spasmodic attempts in 1855 and 1887) it was collected in this case only from 1892 and that the acquiescence in the imposition since then was evidently due to the dissensions among the inamdar's family and the anxiety of individual members to influence the estate officials in his own favour. I therefore find that the josyam inam is not liable to kulavettu cess.
9. With respect to this cess in the first case the learned District Munsif says in para. 18:
that the cess was as a matter of fact levied and collected all along has been proved, as I have already pointed out.
10. Admittedly this kulavettu cess is levied for the repair of the irrigation source. Both the inams enjoy the benefit of the zemin water. A lawful consideration for the contract to pay this cess can therefore be presumed if long payment has been proved. This is the position taken up by the District Munsif and I think that position is sound in law. In Venkata Narasimharayudu v. Venkata Rangayya 1914 Mad. 285 Seshagiri Iyer, J., held that a cess called ghattu thommulu is a legal cess. The appellant's learned Counsel says that ghattu thommulu is the Telugu equivalent for kulavettu. Prom the judgment the nature of the payment appears to be this:
The payment probably originated in a contract, the contract on the part of the zamindar being that he should keep the tank, from which water was to be supplied to the defendant, in good repair and the contract on the part of the defendant being that he should pay a certain sum of money to enable the zamindar to effect this purpose.
11. But as continuous payment has not been proved in the second suit, and having regard also to Ex. 3, the learned District Munsif held that in that case the cess cannot be levied. In the lower appellate Court the question whether kulavettu and chattram cesses were payable was not disposed of, on the evidence in the case. The learned Subordinate Judge commenced the discussion of the questions by pointing out that:
Both sides would appear to have been under the impression that the inamdar also is some kind of raiyat or tenant of the zamindar - a superior kind of riayat it is true and exempted from teerva, but nevertheless a raiyat. Thus they also have been taking pattas and executing muchilikas, etc.
12. See para. 6. Then in para. 7 the learned Judge says:
The first point to be noted is that the inamdar is not any kind of tenant at all of the zamindar. There has been and there is no relationship between them covered either by the Kent Eeoovery Act or by the Estates Land Act.
13. The learned Judge was apparently under the impression that the case was mistakenly treated as a case between zamindar and raiyat coming under the Estates Land Act and it was mainly on account of that reason that the cesses were held legal by the lower Court. Then he drew attention to Sections 3 and 11(a), Estates Land Act, and said that kulavettu may be a legal cess under the Act but chattram cess cannot be legal, and it ended by saying:
But where, as in this case, that act has no application, the same remarks should apply to both cesses which the lower Court applies to chattram only, viz., payment, however long, under any mistake of the rights of the parties, would not create liability for the future.
14. Then the lower Court said in para. 8:
For these reasons I hold that the plaintiff is not entitled to recover kulavettu or cess for repairing tanks in either case and any such claim is in violation of Section 12, Permanent Settlement Regulation Act (5 of 1802).
15. From the above statement it becomes clear that the lower appellate Court set aside the decision of the District Munsif with regard to kulavettu mainly on three grounds : (1) it thought that the District Munsif treated the case as a case between landlord and tenant under the Estates Land Act; (2) that the District Munsif was wrong in not applying the reason given for disallowing chattram cess to kulavettu cess also. The learned Judge states explicitly in para. 7:
But in the first suit it has negatived the chattram cess and allowed kulavettu upon grounds which are not reconcilable apart from the provisions in the Estates Land Act and decisions thereupon.
16. And then reference is made to Sections 3 and 11(a); (3) the claim is in violation of Section 12, Permanent Settlement Regulation Act 5 of 1802. I may at once say that the third ground given in the lower Court's judgment is not relied on in this Court by Mr. Patanjali Sastri for the respondents. As regards the other two grounds, the position taken up by the learned Judge is in my opinion not sustainable. It is true that pattas and muchilikas have been exchanged in this case between the inamdars and the Kamindar and that the plaints were first presented in the revenue Court and were then returned for want of jurisdiction. But that is no reason for saying that the District Munsif's view of the legal relationship of the parties is obscured by the mistaken idea that the suit is between landlord and tenant and that in allowing the claim he has treated the defendants who are inamdars as tenants and dealt with the suit as if the claims were made under the Estates Land Act. The District Munsif is not unaware of tire fact that pattas and muchilikas have been exchanged by the parties which would not have been done between a aamindar and an inamdar. He says in para. 19:
Pattas and muchilikas appear to have been exchanged between the zamindar and the inamdars though strictly speaking the latter are not tenants.
17. This would show that he kept in view clearly the strict legal relationship between the parties. This estate was under the administration of the Court of Wards for some time. During that period also, pattas and muchilikas were exchanged between the parties. Here it may be observed that chattram and kulavettu fees were collected by the Court of Wards also : See Exs. GG and B. That the parties executed pattas and muchilikas is no reason to assume that the first Court went upon a wrong basis in deciding the case. That the District Munsif did not treat the case as if it was one which fell under the Estates Lands Act is also clear from the reasoning on which he found that chattram cess was not payable and that kulavettu was payable. The District Munsif negatived the claim for chattram because though it had been paid for a long time there was nothing to show that it had a legal origin, nothing from which one could presume a contract, whereas with regard to kulavettu, in the one case he held that the payment was long and there was ground to hold that the payment had a legal origin because there was a bearing between the cess and the purpose for which the land was let, this bearing being, as already stated, that the cess was for keeping the tank in repair which provided water for cultivation; and in the second case of course he did not allow kulavettu not because consideration could not be presumed but the payment was not proved to have continued long enough. The learned Judge says:
But in the first suit it has negatived the chattram cess and allowed kulavettu upon grounds which are not reconcilable apart from the provisions in the Estates Land Act and decisions thereupon.
18. This shows a thorough misunderstanding of the reasoning of the learned District Munsif. In coming to two different conclusions with respect to the two cesses he applied the same principle : Was a legal origin proved that is to say, applied that test which was laid down in Thiruvanatha Sevuga Pandia Thevar v. Sankaramurthi Naidu 1919 Mad. 535 : Did the case have a direct or proximate bearing on the purposes for which the land was let? No doubt this principle was laid down in a decision which arose under the Estates Land Act, but the reasoning is applicable to all cases the facts of which show that a payment has been made for a continuously long time and that there is the connexion between the payment and the purpose for which the land was let. This is a principle not specially applicable to the Estates Land Act alone but universal in its application and it is that principle that the learned District Munsif applied in considering whether the cesses chattram and kulavettu were leviable on the tenants.
19. The discrepancy between his conclusions with regard to the levy of the chattram cess and the kulavettu cess is not a discrepancy brought about by the application of inconsistent principles but a discrepancy brought about by the special facts of the case while the principle applied to both was the same. He did not rely on any of the provisions of the Estates Land Act. There is no irreconcilability at all in the conclusions arrived at by the learned District Munsif with respect to the chattram and kulavettu cesses, and the judgment of the learned District Munsif does not afford any justification for the remarks of the Subordinate Judge which I have quoted above. In this connexion I may also say that under the old Estates Land Act before it was amended by Act 4 of 1919 there was a clause, Section 11(c), which included amongst rent, quit rent, jodi, etc., payable by the inamdar. Possibly on account of this the notion may have lingered that a payment by the inamdar also would come within the Estates Land Act, This is only a suggestion made by Mr. Sitarama Rao; but really, as I have shown above, there is not the slightest justification for holding that the District Munsif treated the case as if it was a case which fell under the Estates Land Act. Prom this reasoning it must follow that the finding of the Judge both with regard to the chattram and kulavettu ceases cannot be accepted. But I have already accepted the finding with regard to the chattram cess on the ground that the facts found by the District Munsif, which are the only facts relied upon by the appellant's counsel, do not make the claim a legal claim. As regards kulavettu, the matter cannot be disposed of in the same way. The learned Subordinate Judge has not discussed the question with regard to the evidence and the correct principle of law to be applied in deciding whether the payment has a legal origin. I would therefore before disposing of the two second appeals, call upon the lower Court to submit a fresh finding whether with respect to the suit lands in question in the two cases the tenants are liable to pay kulavettu.
20. The next point for consideration is whether water cess is legally leviable from the tenants in the two suits for second crop cultivation. I will deal with the two cases separately.
21. The District Munsif found in the first case that water rate is leviable for second crop cultivation and this finding was accepted by the learned Subordinate Judge, only the learned Judge reduced the rate from Rs. 12 to Rs. 6. In the Memorandum of Objections the question, is raised that the rate is not in law leviable and if leviable it should have been still further reduced by the lower Court, Rs. 3 being mentioned as the appropriate sum payable. It was not seriously contended at the time of argument by Mr. Patanjali Sastri that the concurrent finding of the lower Courts on this point in the first case should not be accepted. More importance in the argument was attached to the finding as to the rate than to the finding as to the liability to pay. In para. 32 the first Court deals with the right of the landlord to charge water rate for the second crop cultivation and in para. 36 the District Munsif deals with the rate. The appellate Court deals with the questions in paras. 11 and 12 of its judgment. Admittedly the village registers and inam registers show that the land is a single crop land. Therefore the tenant is prima facie entitled to raise only a single crop free of charge. What is however argued is that Ex. 1, the inam title deed, gives him the right to raise a, second crop without making any payment for the same. This argument cannot be accepted. The inam title deed has nothing to do with the right of the landlord to charge water rates. As the District Munsif points out, there is nothing to show that the defendant has been raising two crops without charge all along as contended in the written statement.
22. In view of Ex. C it is difficult to hold that the tenant is not bound to pay water rate for the second crop cultivation. When the question was raised with respect to the village service inam lands recently enfranchised when second crop is raised with the estate water, the Collector of Madura communicated to the Divisional Officer that:
The estate is entitled to second crop charge at half the produce or half the assessment due for similar lands under the money rent scheme in the said estate.
23. See Ex. C dated 10th February 1910. See also Exs. B and E in this connexion. On the grounds given by the lower Courts I hold that when the second crop is raised by using the zamindar's water the plaintiff can charge a cess for the use of that water. With regard to the rate of compensation the learned Judge has reduced the rate from Rs. 12 fixed by the first Court to Rs. 6. He gives his reason as follows:
But there is no evidence of similar inam lands in the locality paying compensation for second crop cultivation with zamin tank water. But we know that as regards raiyati lands if this zamin the full assessment upon single crop lands being cultivated with a second crop with the aid of zamin tank water is half the tharam and therefore comes to Rs. 12. Consequently I would fix the compensation here at half the tharam assessment for the second crop, viz., at Rs. 6 per acre. It is after all a case where the inamdar need use the water in future only if he likes to pay this compensation.
24. The argument of the learned Judge is not satisfactory. There is ample evidence to show that the rate fixed by the District Munsif is the satisfactory rate. It is not right to say that there is no evidence of similar inam lands in the locality paying for second crop cultivation with zemin tank water. In regard to such lands the second crop assessment has been fixed at half the tharam assessment: vide Court of Wards Proceedings, Ex. B, which states as follows in para. 12:
There remains the question of second crop to be dealt with. I have already expressed my views on this question in my Notes of Kodikulam village. The proposals in brief are : (1) half tharam rate to be charged when wet crop is raised.
25. This is a proceeding of the Court of Wards. See also Ex. D, the muchilika, executed in favour of the manager by a raiyat wherein it is stated:
If paddy crops are raised for the second time on nanja lands with the aid of the estate water source, I shall pay the tharam tirwa mentioned in the patta, etc.
26. Exhibit C which I have already referred to says that lands raising a second crop should be charged at
half the produce or half the assessment due for similar lands under the money rent scheme in the said estate.
27. The evidence bearing on the question is considered by the learned District Munsif in para, 36 of his judgment. For the reasons given by him I hold that the rate of Rs. 12 fixed by him is the appropriate rate for the second crop cultivation. The argument respecting the levy of water rate for the second crop cultivation in the second case stands on a somewhat different footing. The inam in this case is a personal inam granted by the zamindar to a predecessor-in-title of the defendant who happened to predict correctly the birth of a son to the then zamindar. The grant as already noted, was made under Ex. 3. The lower appellate Court refused to allow water rate for the second crop cultivation in this case on the ground that the grant Ex. 3 is absolute and unrestricted and that as it was open to the zamindar himself to cultivate his lands with as many crops as the existing water supply would permit, so the transferee from the zamindar has also a similar right. It also pointed out that the grant being absolute
it is not open to the grantor to derogate from the grant and claim to enforce upon his transferee any new tax or burden.
28. Exhibit 3, the grant, mentions the lands granted and also two tanks. In the first part of it 'nanja manipam' included among the properties granted is referred to as 'which remained previously under the said tank.' Then after referring to kulathida nanja it says:
in all nanja manipam for two tanks, two cheis of land on the occasion of the birth of a son.
29. Then punja manipam is referred to. As I read the document, it does not appear to mo that it confers upon the transferee the right of taking water from the said two tanks unrestrictedly as often as he likes for carrying on cultivation. The two tanks are merely referred to as sources of irrigation for the lands transferred. There is nothing to show - and this is admitted - that more than one crop was raised on the land at the time of the grant. The inam register shows that this land is a single crop land; this means that only one crop was raised on the land. On the facts there is no evidence that a second crop was raised prior to 1901 and it appears that when a second crop was raised after that date the zamindar has always levied some assessment. It is argued on behalf of the appellant that the land being a single crop land at the time of the grant, the grantee can take water only for raising a single crop and that the document not specifically giving him the right he cannot take water for the second crop cultivation without paying for the same.
30. The learned Counsel for the appellant relies upon the principle of Section 13(b), Easements Act, in support of his contention. His argument is that the transferee of the land is only entitled to the enjoyment of that easement right which existed when the transfer took place in the absence of intention to show that more right was conferred by the grant. That the right of taking water from the tank, the source of irrigation belonging to the zamindar, for the irrigation of the land granted by him to the transferee has been treated by Courts of law as partaking of the nature of an easement cannot be disputed : see Morla Gangulu v. Jagannathan 1924 Mad. 108; Souriraja Naidu v. Rajagopalan 1924 Mad. 812 and Pitchla v. Zamindar of Venkatagiri 1930 Mad. 941. In this case the tank and the water in the tank both belong to the zamindar, There is no question of any channel leading the water from the tank having been granted to the transferee or any other circumstance which would go to show that the transferee was entitled to unrestricted use of water from the tank. The right claimed is supported solely on the ground that Ex. 3 confers it, which, as I have already stated, though it refers to two tanks as sources of irrigation, does not confer on the transferee unrestricted right to take water. In view of the facts the decision of the Privy Council in the Urlam case, Kala Surya Prasada Rao v. Secy. of State 1917 P.C. 42, cannot be applied [to this case. In my opinion the only right which the transferee of the lands got under Ex. 3 was the right to take water to cultivate the lands as it was cultivated at the time of the grant and nothing more; that is to say, he has the right of taking the water free only for the first crop cultivation, and if he takes any water for the second crop cultivation he will in law be liable to compensate the zamindar by making him payment for its use. On this point I would set aside the decision of the lower appellate Court and restore the decision of the District Munsif, with whose opinion I agree.
31. No other question remains to be considered in these second appeals. But final orders can be passed only after the receipt of the finding called for with respect to kulavettu from the lower appellate Court. The finding with respect to this point will be submitted by the lower appellate Court within two months after the re-opening of the High Court after the summer recess. Ten days for objections.