THE PROVINCE OF MADRAS, REPRESENTED BY THE COLLECTOR OF MADRAS Vs. ASSAMMAKKITHANAKATH PUTHIYA NALAKATH MUHAMMAD ALIAS BAVA (SINCE DECEASED) AND ORS.

JUDGEMENT

(1.) THE plaintiff was in possession of certain land which was formed by the sea receding in the year 1935 or thereabouts. He first asked for the land being assigned to him and said that he would plant cocoanut trees thereon. Subsequently he seems to have entered upon the property and planted trees. He then asked that out of the lands formed by the recession of the sea, the portion occupied by him might be granted to him. He also said that he was ready to pay any value that might be fixed by the Government for the land in his possession. He wanted permission to pay the sum fixed by the Government. At one stage he seems to have asked that he may not be called upon to pay the value or the land price as it is called, but ultimately he said that he was willing to pay whatever was demanded of him. Under Section 3 of the Malabar Compensation for Tenants Improvements Act, the expression "tenant " among other things include a person who, with the bonafide intention of attorning and paying the customary rent to the person, entitled to cultivate or let waste land, but without the permission of such person, brings such land under cultivation and is in occupation thereof as cultivator. Here it is common ground that the plaintiff brought the land under cultivation, that he is in occupation thereof as cultivator and that he entered upon possession of the land. without the permission of the person who is entitled to let the land, that person being the Government. The only point at issue is whether he did so with the bonafide intention of attorning and paying the customary rent to the person entitled to let the waste land. It is urged by the learned Government Pleader that the respondent -plaintiff offered to pay the assessment on the land and not the customary rent on it. It is a nice distinction; but this distinction does not appear to me to have been presented in either of the lower Courts. There is no evidence to show that in such cases on the West Coast, the Government used to collect what is called the customary rent on waste lands when those lands are occupied by a person who would otherwise fulfil the terms of Section 3. So far as one can judge from the record, the Government usually collects only assessment and before issuing a patta the Government also levies what is known as the land price or customary price which in this case is said to be Rs. 15 per acre. I am inclined to think that the land price plus the assessment every year is tantamount to the customary rent within the definition of Section 3. A portion of it is asked to be paid in advance and there is also the annual payment. As between the Government and a person who occupies waste land and brings it under cultivation, that is the customary rent, though in the case of other jenmis it may be that the customary rent is somewhat higher than the assessment that is payable to the Government. It may be that such jenmis may not be entitled to claim any amount by way of land price. They would only be entitled to claim as customary rent some amount which may be higher than the assessment levied by the Government. At any rate, if a third party was the person concerned in this case and not the Government, it would have been enough for the plaintiff to say that he was ready and willing to pay the customary rent and in that case there would have been no necessity to prove that he was willing also to pay the land price. But in the case of the Government, as is usual, the customary rent takes the form of a lump sum which is called the land price and an annual payment which is termed land assessment. The distinction is no doubt a very nice one; but in this case the whole question seems to have been fought out on the footing that what was asked by the Government through its officers was really equivalent to the customary rent. On other points, I see no reason to differ from the Subordinate Judge that really the plaintiff was willing to pay the price and the assessment Or in the words of the Act that he answers the description in Section 3 of a person who, with the bonafide intention of attorning and paying the customary rent, brought the land under cultivation.

(2.) THE second appeal fails and is dismissed with costs. Time for payment of costs: two months. (No leave).