1. The first point argued before us, relates to the landlord's claim to an extra charge for 'vanpayir,' (i.e.,) garden crops raised on dry lands by means of wells dug at the tenants' expense. Both the lower Courts have held that this charge is illegal.
2. There is no dispute that the wells in question were dug at the tenants' expense: nor, on the other hand, that in spite of this fact, the extra charge has been levied for many years'--the Sub-Collector says, 'from time immemorial,' which we must take to mean ever since the wells were dug, and their water used for raising the garden crops.' But there does not appear to be any finding as to the length of time during which payment has been made in any particular case.
3. The respondents rely on Section 13(3) of the Madras Estates Land Act to support the decision of the lower Courts. The appellant contends that the charge is made in pursuance of a contract prior to the introduction of the Act: and that, as held in Venkata Perwmal Raju v. Ramudu 27 Iud. Cas. 688 : (1915) M.W.N. 132 such a contract is enforceable in spite of the section.
4. This theory of a contract, validating the charge, has been set up for the first time in the hearing of these second appeals. In both the lower Courts, and even in the memorandum, of second appeals, it was sought to support the charge on the basis, not of contract, but of custom: and the respondents' Vakil, in our opinion reasonably, objects to the appellant being allowed to alter his case at this stage. The admission of the contention, now raised, would necessitate the remand of the suits for findings on fresh issues and evidence; and such a course seems to us not justifiable. The appellant's Vakil has endeavoured to convince us that the required contract must be inferred from the long-continued course of payment, for which proposition he refers us to the judgments in the case above quoted. It is no doubt true that in that case Napier, J., presumed not only an agreement to pay the higher rates, but also consideration for the agreement from 60 years' payment, (i.e.,) a complete and enforceable contract. Sadasiva Aiyar, J., agreed that the same presumption could be drawn: though in his view of the case, that did not affect the result. Neither learned Judge, as far as we can gather, seems to have intended to lay down a general proposition that such a presumption must always be drawn and would be irrebuttable; and it is only if this were the case that we could deny the respondents an opportunity of adducing evidence to contest it. Apart from this, if we may say so with all respect, we doubt whether the decision in Arumugam Chetty v. Raja Jagaveera Rama Venkateswara Ettappa 15 M.L.J. 292, on which the learned Judges rely, affords any support whatever for the presumption of consideration for the agreement from long-Continued payment. On the contrary, as it seems to us, Subramania Aiyar, J., is at pains to emphasize the contrary, (i.e.,) 'that though payment for a number of years at the rate of 8 fanams, may imply an agreement to pay in future at that rate, yet that will not imply a contract between the parties, for the obvious reason that there was no consideration to support such an agreement so as to make it a binding one.'
5. And the same view was taken at a subsequent stage of the same litigation by a Bench to which one of us was a party Arumugam Chetty v. Raja Jagaveera Rama Venkateswara Ettappa 8 Ind. Cas. 330 . The existence of an agreement was allowed to be inferred from long payment: but independent proof of consideration for the agreement was insisted on as necessary. We may also refer to a later, case Devi Bhuknoji Kasidoss Subbaraya v. Allamadugu Narayana Reddi (1915) M.W.N. 209, for the same distinctions.
6. We must decline to allow a contract for the payment of the higher rates to be set up at this stage; and we confirm the finding of the lower Courts as to the illegality of the vanpayir charge.
7. The other points in dispute may be more briefly dealt with. We agree with the lower Courts in holding that the disallowance of the claim for extra rent for a second dry crop is a necessary corollary of the decision that the rent for the dry land can be claimed independently of whether a crop was raised or not, and we see no reason to differ from their interpretation of the word palanthur in relation to the charge leviable on palmyra trees.
8. There remains only the question raised on issue No. 17 of the rent claimed on land No. 337 in Summary Suit No. 2881 (Second Appeal No. 1087 of 1913). It is classed as 'Mandaikgllai or Veetadikollai' and the District Judge, differing from the Sub-Collector, has held that rent claimed as due on it, cannot be recoverable by a suit under Section 77 of the Madras Estates Laud Act. In our opinion, lie is right in his conclusion. Of course if it were shown that the 'Kollai' had been carved by the tenant out of ryoti land, without the landlord's consent, the latter would be entitled to recover rent due on it under the Act. But that is not the case here.
9. We dismiss the second appeals with costs.