1. The chief question raised in this second appeal is whether the ryots of a village called Konthagai are bound to pay ninja sarasari rent when they cultivate vanapayar crop on land, which admittedly was nanja at the time of the Settlement. It is conceded on behalf of the landholders that for many years (during all time within living memory), the ryots were cultivating vanapayar crops and were paying fixed money rents due for such crops. On the other hand, the land has always been described as nanja in the documents executed between the parties, and in the pattas for the years to which the suit relates, the description is the same. Exhibit A is the muchilika for the year 1880 and in that muchilika the lands in question are described as nanja lands and the tenant undertakes to cultivate first, second and third crops and to pay varam. Notwithstanding the provisions in the muchilika, there is no doubt that only vanapayar crops were raised. On these facts, the lower Courts came to the conclusion that there was no implied contract between the landholders and the ryots that vanapayar rates alone were payable if the ryots cultivated only vanapayar crops. If the landholder was originally entitled to nanja rates, then the onus would be on the tenant to show that that obligation was put an end to by a contract between the parties. If, on the other hand, there is nothing beyond the fact that vanapayar rates alone were paid during any time that we know of, the proper inference would be that the agreement between the parties was that vanapayar rates only were payable. There were facts in this case which entitled the lower Courts to refuse to draw the inference that there was any contract between the parties that only vanapayar rates were payable to the landholders. The question whether there was such a contract must be regarded as one of fact. It is clear from Section 9 of the Indian Contract Act that an implied contract is as much an agreement between the parties as an express contract, and if the question of an express contract is one of fact, the question of an implied contract must equally be so. There is no reason to hold in this case that any inference which the lower Courts were bound to draw, in law was disregarded. We may observe that in a previous suit between the same parties, it was decided that the defendant was bound to pay sarasari if he cultivated vanapayar crops on nanja lands. We are of opinion that there is no ground for interference in second appeal with the finding arrived at by the lower Courts.
2. The next question argued is whether with regard to the plot of land called anavari, which the defendant did not cultivate, the plaintiffs are entitled to recover sarasari. Both the lower Courts found that it was the defendant's own fault that he did not raise nanja crops on it. The land was apparently covered with silt to a certain extent. But this took place about 40 or 50 years before the date of the suit. In the previous suit, the defendant merely contended that his failure to cultivate was owing to the land-holder's interference by putting in another tenant. He did not then contend that the land was unfit for cultivation. We must, therefore, accept the finding of the lower Courts on this point also.
3. The third point argued is that the lower Courts are wrong in awarding rent for 34 tamarind trees, while, according to the Commissioner's report which was accepted by them, there were only seven trees bearing fruits. Neither Court has taken notice of this important fact. It is true that in the memorandum of second appeal, the finding of the Commissioner is not referred to, but we think, in the cicumstances, we must allow the defendant to rely on that fact. The record of the Commissioner being accepted by both the Courts, the award for more than seven trees must be held to be wrong. The decree must be modified by disallowing the rent allowed for 27 tamarind trees.
4. The last point relates to the amount of sarasari due for the lands in question. The original Jamabandi accounts were filed in the Munsif's Court in order to prove the yield of adjoining lands. An abstract showing the result of these accounts was subsequently put in, but was rejected by the Munsif on the ground that it was too late. The Subordinate Judge received it on appeal. Objection is taken to his having done so. As, however, the document stated only the substance of accounts already before the Court, we do not think there can be any valid objection to the procedure adopted by the Subordinate Judge. It merely enabled him to find out the rent due which the Court would otherwise have been bound to do by reference to the original accounts. It is stated that the defendant had no opportunity of showing that the accounts should not have been acted or. The original accounts have been produced before the Munsif, the defendant had an opportunity of showing that they were wrong. We do not think that he was entitled to any further opportunity on the mere ground that an abstract was allowed to be put in in the Appellate Court. It was not contended before the District Munsif that the abstract did not represent correctly the result of the original accounts. Nor does it appear that there was any specific objection to the correctness of the abstract raised in the Appellate Court. We would have been inclined to allow the appellant to put in a correct abstract if we thought there was really any substantial reason for considering that it was incorrect. This objection must, therefore, be disallowed.
5. With the small modification already indicated, we dismiss the second appeal with costs.