1. The first point raised in this second appeal is that Ex. I is a lease for 70 years and not for 100 years, Mr. Sitarama Rao for the appellant relies upon the wording of the lease and contends that it must be taken to mean that the rent was payable at a certain rate for the first ten years, at a certain other rate for the next ten years, and at a third rate for 70 years from the date of Ex. I. The Subordinate Judge has interpreted the deed to mean that for the first ten years the rent payable was at a certain rate; for 20 years thereafter the rent was to be at a certain other rate and for 70 years thereafter the rent was to be at another, rate. If the language is dear that the rent for the first 10 years was to be at a certain rate for the next ten years, at a certain other rate and for 70 years thereafter at another rate, there would be no difficulty in interpreting this document. But in the document no word meaning 'for' has been used. The Subordinate Judge has interpreted the document as meaning, for the first ten years so much, for the next 20 years, so much and for 70 years thereafter at a certain rate considering the view that the Subordinate Judge has taken of the language of the document, I am not prepared to say that he has gone wrong.
2. Mr. Sitarama Rao relies upon Ex. II, series and says that Ex. II series were not considered by the Judge and that, if they had been considered, they would have shown that the language used in the document supported his contention. In a matter like this, where it cannot be said that the lower Court has gone wrong, it would not be right for this Court to interfere with the interpretation of the document placed upon it by the lower appellate Court. I disallow this contention of the appellant.
3. A portion of the land covered by Ex. I. was given on darkhast to the predecessor-in-title of the -plaintiff in 1870 under Ex. F. What this portion of-the land in dispute is has not been stated by either party. The contention of the appellant is that inasmuch as the land was granted on darkhast by the Government, any right derived from the grantee before the grant came to an end on Government granting it on darkhast. In the case of lands in South Kanara it is usual for pattadars to occupy lands adjoining their patta lands for the purpose of convenient enjoyment of their own holdings under patta, or for purpose of cultivation, etc. The Government generally grants such land known as kumki land on darkhast to the pattadars. When the land is kumk granted on darkhast, any right previously granted by the wargdor in favour of a tenant as regards the kumki land comes to an end, and even if there is a mortgage right on the land created by the wargdor, it comes to an end, as soon as the grant is made by the Government to the wargdor or any other person. Kodi Sankara Bhatta v. Moidin (1919) 35 M.L.J. 120. In that case the plaintiff owned a warg land and there was a mortgage on the land kumki to it, and the land was subsequently granted by the Government on darkhast to the plaintiff. It was held that the mortgage right came to an end as soon as the land was granted on darkhast. This decision followed a number of previous decisions on the point: Hattikudar Narain Rao v. Andar Sayad Abbis Saheb : AIR1915Mad1085 and Swaminatha Mudoli v. Saravana Mudali (1916) 33 M.L.J. 370.
4. Mr. Anantakrishna Iyer is prepared to contend that the decision in Kodikara Bhatta v. Moidin (1919) 35 M.L.J. 120 is not sound. But sitting as a single Judge I am not prepared to listen to that argument for I cannot refer the matter to a Full Bench even if Mr. Anantakrishna Iyer is able to persuade me, that Kodi Sankara Bhatta v. Moidin (1919) 35 M.L.J. 120 is wrong. The answer to the contention of the appellant is that the defendant continued to be in possession under the lease granted by Ex. I, that the landlord collected rent due under Ex. I and that the defendant was in possession of the land for more than 12 years from 1870. Mr. Anantakrishna Iyer's contention is that he has prescribed for a lessee's title : under Ex. I inasmuch as he continued in possession for more than 12 years, paying rent as provided for in Ex. I. It appears from Ex. II series that the landlord collected a few annas more than that provided for in Ex. I from the defendant. Mr. Sitarama Rao argues that the defendant had no right to continue on the old terms when new terms were imposed. But such a contention was not put forward in the. Courts below; and if the plaintiff wanted to rely upon such a contention I think it should have been put forward in the Court of first instance. Seeing that Ex. II series wore produced by the defendant, and that he relied upon the fact that he continued in possession from the year 1846 under Ex. I, I think it was the duty of the plaintiff, if he relied upon any subsequent agreement to have set up such agreement and to prove it. In the absence of such a contention in the Courts below it is not proper to infer from the mere fact that a few annas more were collected from the tenant than that mentioned in Ex. I that a new agreement was entered into between the landlord and the tenant subsequent to 1870. Mr. Anantakrishna Iyer's explanation for the difference is that the nine annas were added to five rupees due under Ex. I when the Government levied assessment at four annas per acre. The extent being 21 acres the tax on the land came to nine annas. It may be that his explanation is correct. But, whether it is correct or not, I do not think that this is a sufficient circumstance to make the Court consider that a new arrangement was entered into after the year 1870. Some indication is given as to the conduct of the parties in the order Ex. P. The Subordinate Judge has made a mistake in reading the order as giving the lessee the right to remain in possession in spite of the landlord. In para 5 he says that the grant was made to the lessor on the express understanding that the lessee's right should continue. He is clearly wrong as regards the interpretation of Ex. E. But it contains some indication that at the time the grant was made it was made to the plaintiff's predecessor-in-title on the ground that if it was granted to a third person the lessee's right might be lost, but if it was granted to the plaintiff's predecessor-in-title, as he was a party to Ex. I, the lessee would have asserted his right in a civil Court himself against the grantee. This view of the revenue authorities may be wrong, but this is a circumstance to show that the parties did not wish to disturb the arrangement entered into so far back as 1870 and evidenced by Ex. I, but continued to respect that agreement and acted up to its terms. I do not think the plaintiff can disturb the possession of the lessee who has been in possession after the date of the document for at least 49 years. Following the principle of the decision in Secretary of State for India v. Krishnamoni Gupta (1902) 29 Cal. 518 I hold that the defendant has prescribed for the title as lessee under Ex. I, I disallow this contention of the appellant.
5. The third contention is that the defendant is not entitled to the value of the spontaneous growth. Finding that the amount given for the trees on the land is less than Rs. 3, Mr. Sitarama Rao thinks it right not to press this point.
6. The next point is that the land not included in the lease has been treated by the Courts below as being included in the lease. The contention of Mr. Sitarama Rao is that the Subordinate Judge has erred in treating certain kaithodu as existing at the time of the preparation of the plan and in taking as the southern boundary of the plot. No doubt there was no kaithodu in existence at the time of the preparation of the plan. But the Subordinate Judge does not merely rely upon that circumstance but applies another test and he says that the western boundary was given as a line drawn from a certain quarry to the house of one Ambu. If this is so, Plot No. 14 is included in the lease. No doubt the southern boundary is not quite clear, but seeing that both the Courts have treated this land as being included in Ex. I, and both Courts having given reasons for their findings, I do not think this Court would be justified in interfering with a pure question of fact. No doubt if a document has been wrongly read or misconstrued this Court would consider whether the misconstruction has in any way vitiated the finding. But in this case it cannot be said that the Subordinate Judge has relied entirely upon the existence of the kaithodu, but has applied according to his own statement other test for the purpose of finding out what was included in Ex. I, I disallow thi contention of the appellant.
7. The next contention is as regards the improvements. Mr. Sitarama Rao contends that the Courts below have not applied the proper principle as regards improvements. His argument is that though the defendant spent a considerable sum of money upon the land yet what he has done cannot be called an improvement; for the land is not fit for cultivation. No doubt if the tenant wastes money by doing useless things the landlord would not be bound to pay the amount spent on such fruitless labour but where the tenant removes stones or levels the ground so as to make it ready for cultivation, it cannot be said that all his labour is wasted and the land is not improved. The plaintiff has not chosen to adduce any evidence to show that the land is not more valuable now than it was when the tenant began to improve it. In the absence of any specific evidence on this point I should consider that what was spent for the purposes of improving the land was really spent for its improvement. Mr. Sitarama Rao wants to rely upon the report of the Second Commissioner who is considered by the District Munsif as not being fair to the defendant and whose report is not relied upon by the Subordinate Judge. In this case three Commissioners were sent to value the improvements. Commissioners 1 and 2 seem to be agreed. It is only the second Commissioner who has sent a report which is not relied upon by the District Munsif as well as by the Subordinate Judge. I do not think that the Subordinate Judge has gone wrong on this point and it cannot be said that the land has not been improved by the tenants.
8. In this connexion it has been urged that considerable improvement was made before 1907 when the land was given on darkhast. At that time it is contended that the land was fit for cultivation. Reliance was placed upon Ex. J-2, Exhibit J. e, is a statement by the shanbhogue and that shanbhogue has not been examined. There is no guarantee that what he stated was correct. Mr. Sitarama Rao wants to build a case upon the statement of a person who is not called as a witness. I do not think that Ex. J-2 would furnish sufficient basis for the contention that all this land has been improved before 1907. The owner of the land at the time, the grantee of the lease in 1907, was not examined by the plaintiff or the defendant. It is urged by Mr. Sitarama Rao that if the defendant claims the value of the improvements, it is his duty to show that he made improvements. There is evidence to show that the defendant was in possession of the Items 15 series for a very long time. Whether for 30 years or 40 years it is not quite clear and when he has proved that he has made improvements, I think the onus is on the other side to show that the improvements were made before 1907. Such evidence has not been produced on the side of the plaintiff; and I do not think he is now entitled to set up a case which was not set up in the pleadings.
9. Then the last question is as regards rent for Items No. 15 series. In the plaint the plaintiff asked only for 50 mudis of paddy as mesne profits. That is only as regards the land covered by Ex. 1. He did not specifically claim mesne profits in respect of lands Items 15 series. If he had adduced some evidence to show what the income of these items was, no doubt he would be entitled to get mesne profits. But he was on the horns of a dilemma. His case was that 15 series were not improved and that they were not fit for cultivation. If they were not fit, for cultivation he could not have said that they were capable of yielding any income. That being so I do not think the plaintiff can be given mesne profits in respect of 15 series.
10. In the result the second appeal fails and is dismissed with costs.