SHEIK DAVOOD ROWTHER Vs. RAJASRI PRATHASIMHA RAJAH SAHIB

JUDGEMENT

(1.) THE appellant -defendant is a ryot against whom the plaintiff landholder instituted Summary Suit No. 75 of 1949 under Section 77 of Act I of 1908 in the Deputy Collector's Court, Tanjore, for recovery of arrears of rent for faslis 1355 and 1356. The plaintiff claimed the melwaram or rent at 11/1 2 kalams for the first crop on double crop wet lands and 13 kalams for the first crop on single crop wet lands on the basis of muchilika executed by the first defendant for faslis 1336 -1340, Exhibit A -1 dated 10th September, 1928. There was an issue of a patta for fasli 1341 under Exhibit A -2 according to which the first crop charge on single crop wet land was 12 kalams per acre and there was no change in respect of double crop lands. There was an earlier summary suit for the previous faslis 1352 -1354 in Summary Suit No. 6 of 1946, where the plaintiff claimed at the same rate at which he claimed in the present suit. The Deputy Collector then reduced it 10 6¾ kalams for both crops on double crop wet lands and 4/1 2 kalams per acre for first crop on single crop wet land and half of it for fasli jasthi. This order of the Deputy Collector was upheld in appeal by the District Judge of Tanjore in A.S. No. 32 of 1948. The plaintiff supported his claim in the present suit on the basis of the patta and muchilika and as regards the decision in the previous suit it was pointed out that as there was no evidence by way of patta and muchilika, the Deputy Collector fixed at a lower rate. In the present suit, the Deputy Collector applying Section 27 of the Estates Land Act granted a decree at the rates decreed in the earlier proceedings, Summary Suit No. 6 of 1946. It is common ground that after fasli 1341 there was no exchange of muchilika and pattas between the parties. In appeal, the learned District Judge of West Tanjore took the view that the decree in Summary Suit No. 6 of 1946 had not the effect of varying the contract between the parties which was embodied in Exhibits A -1 and A -2 and the contract between the parties had not become extinguished in any event and therefore since the pattas and muchilikas had been filed in the present suit, the landlord could rely on the patta and ask for a decree for rent as provided in the patta and muchilika.

(2.) THE point for determination is whether it would be open to a Court in fixing rent in a suit under Section 77 of the Madras Estates Land Act to go behind the terms of the contract entered into between the parties as per the patta and muchilikas exchanged between them. Prima facie there can be no doubt that the view taken by the Deputy Collector is correct, especially in applying Section 27 to the present case and proceeding on the basis of the principle laid down in that section, where it is provided that

(3.) THE effect of Section 52 and in particular Section 52(3) was the subject -matter of consideration in Foulkes v. : AIR1932Mad739 , where it was held that the only effect of there being a patta which remains in force by virtue of Section 52(3) so far as suits for rent are concerned is that, except in special cases falling under Sections 25, 30, 42 and 45 which require the order of the Collector for determination of rent, the rent mentioned in the patta will, under Sections 27 and 28, be presumed to be the proper rent until the contrary is shown and that, in other words, except in those excepted cases it is open to the landholder without tendering or exchanging or getting decreed a fresh patta to show to the Court in which the suit for rent is filed that he is legally entitled to a different amount or rate from that mentioned in the old patta. This is no doubt a case where the landholder wanted to go behind the patta issued for a previous period and I do not see any difference in the application of the principle to the case of a ryot. It is therefore seen that the rate of rent agreed upon and mentioned in the patta and muchilika is not at any rate conclusive as to the rate of rent for any period subsequent to the period for which the pattas and muchilikas have been exchanged and when a question arises as to what would be the proper rent in a suit under Section 77 of the Act, where especially the rate of rent is not fixed by any patta and muchilika for the period of the suit, it will be open to the Court to fix a reasonable rate of rent. In the present case after fasli 1341 there has been no exchange of pattas and muchilikas and it is also in evidence that the landholder has collected at varying rates. In view of that, the rate fixed for the previous year by the Deputy Collector in Summary Suit No. 6 of 1946 must in the circumstances be taken as the proper basis for arriving at the rate of rent for 1336 -1340. The lower appellate Court erred in ignoring the decree in Summary Suit No. 6 of 1946 and relying on the patta and muchilika issued for a period much earlier to the period of the suit.