S DEVANAI Vs. KRAGUNATHA ROW

JUDGEMENT

(1.) These are suits by the zemindar of Rudeer in the District of Tinnevelly to enforce acceptance of pattas against the defendants, who are his ryots in the villages of Kurnmaypatti, Arunachellapuram Muttupatti and Kambathupatti. The disputes between the parties relate to the liability of the defendants to pay russum and vattam. The defendant also contended that pattas for the year in question, namely, Fasli 1317, had not been tendered by the mittadar prior to the institution of the suit. This question was decided in favour of the plaintiff by both the Courts below, and we see no reason for not accepting this finding. The District Judge deals with the question, no doubt, somewhat briefly but evidently he addressed himself chiefly to the arguments urged before him by the defendants. There is no doubt that he intended to accept the finding of the Divisional Officer that the plaintiff had proved that pattas had been tendered. The Judge held that the question of the liability of the defendants in a good many suits was res judicata. We are of opinion that he was right in the view he took. The Divisional Officer s observation that "the plaintiff has not shown which of the defendants in these suits were defendants in the suits of 1884," was evidently intended to apply only to the suits with respect to which the defendants did not admit that they or their predecessors-in-interest were parties. This is shown by a note to be found in the issue paper. The questions in dispute were the same in the suits of 1884, and there is no reason for holding that in subsequent suits to compel the defendants to accept pattas, the decision in the prior suits would not constitute the matters decided in the previous suits res judicata. The suits which must be decided in the plaintiff s favour on this ground are noted by the Judge in paragraph 9 of his judgment, where he gives the numbers of the appeals. The Second Appeals (namely Nos. 1800, 1847, 1850, 1870, 1871, 1874 to 1881, 1883, 1886, 1887, 1889, 1890 to 1894, 1896, 1898 to 1906, 1909 to 1922, 1925 to 1936, 1938 to 1940, 1942, to 1952, 1955, 1958, 1963, 1965 to 1957, 1971 to 1976, 1978 to 1983, 2139, 2142 of 1910 175 to 177, 179 and 180 of 1911, preferred against his judgment in those appeals) must fail on that ground and they will be dismissed with costs. The learned Vakil for the respondent states that the appellants in each of the second appeals mentioned below died more than six months ago and that no steps having been taken to bring their representatives on the record, the appeals have abated. It is, therefore, unnecessary to deal with those appeals. The respondent is entitled to the costs in each of those appeals out of the estate of the appellant in each case. The second appeals which have abated are the following: Second Appeals Nos. 1882, 1888, 1895, 1897, 1907, 1908, 1923, 1924, 1927, 1941, 1953, 1957 of 1910 and 178 of 1911. The substantial question for decision in the remaining appeals is whether the mittadar is entitled to vattum. The question has to be decided according to the provisions of the Rent Recovery Act (VIII of 1865) as the pittas relate to Fasli 1317 which preceded the coming into operation of Act I of 1908. According to Section 4 of that Act, the pitta may contain, besides the amount and nature of the rent, "any fees or charges payable with it according to established usage or to law."

(2.) We shall deal with each of these two claims separately. We have no hesitation in confirming the finding of the lower Courts that the plaintiff is entitled to russum. Russums have been paid by ryots to the mittadar from the beginning of the last century. There is no evidence that they were not paid at any time. The Appellate Court held in the suits of 1884 that the mittadar was entitled to russums as of right. Those judgments are admissible in evidence even against ryots who were not parties to the suits. According to the evidence of the witnesses for the plaintiff whom the District Judge believes, they were sometimes incorporated with the rent in the rosewari chitta although in the pulli teerva account they were shown separately. The defendants in the lower Courts contended that they were payable as contribution for Police service. But both the Courts have found that they failed to establish this contention. In 1884 their case was that russums were paid in consideration of wood being supplied by the mittadar to the ryots for agricultural purposes. This contention was negatived. Their object in setting up the plea on the present occasion that they were fees payable to Police Officers, was evidently to avail themselves of the provisions of Act II 1894 (Proprietary Estates Village Service Act), according to which provision was made by the Legislature for emoluments paid to village officers and no cesses were, subsequently, leviable by proprietors against ryots for any payments to be made to village officers. The Act was extended to include the mitta in Fasli 1317. That was in reality the reason for the fresh attempt made by the ryots to obtain exemption from the payment of the cess although they had been paying it continuously for a long time. The lower Courts were justified, in the circumstances, in finding that russum constituted a charge or fees payable with the rent according to established usage.

(3.) The case with respect to vattam stands on a different footing. It was not paid by the ryots in 1802. As far as the evidence goes, it was not levied until the year 1001 of the Kallam era, i.e., about 1825-26. Both the Courts have found that subsequent to that year it has alwaysbeen paid. The payment, however, was not made without dispute. In 1855, the ryots of one of the Villages Sillavarpatti commenced an agitation questioning the mittadar s right to the payment of vattam nottam, and sengilivari. An order was passed by the Collector in 1858, which is filed as Exhibit E in the case. We see from that order that the zamindar contended that the three cesses mentioned above and certain other cesses, Kalvana moghi, Adi sandhippu and Thai sandhippu, were payable to him in pursuance of a contract entered into between him and the ryots whereby, in consideration of the ayan assessment in 1825-26, the ryots agreed to pay all the cesses mentioned above; and that the ryots had executed muchilikas acknowledging their liability to pay them. The Revenue Authorities found the zemindar s contentions established. Mr. K. Srinivasa Aiyangar, the learned Vakil for the mittadar, contends that Exhibit E was really a judicial order passed by the Collector under the provisions of Regulation V of 1822 and must, therefore, be held to bind the ryots. According to Section 8 of that Regulation, zemindars were prevented from giving the lands in the occupancy ryots to other persons without obtaining the leave of the Collector. Under Section 10 of Regulation XXX of 1802, they had the right to put holdings in the possession of ryots into the hands of other persons if they (the ryots) failed to accept pattas within a month after they were offered by the zemindars. Section 8 of Regulation V of 1822 was intended to restrict that power. It does not appear from Exhibit E that the mittadar applied to the Collector for permission to put other ryots in the places of those who raised the dispute about the liability to pay vattam nottam and sangilivari. He was, no doubt, entitled to do so. But as far as can be gathered from Exhibit E, what happened was that he made a complaint to the Revenue Authorities that the tenants were, without reason, objecting to the payment of casses which they were bound to pay, and the order passed appears to have been one of an administrative character. It expressly states that, if the tenants persisted in their untenable contentions, steps would thereafter be taken against them under Regulation V of 1822. Nor again does it appear, who were the particular ryots against whom complaint was made. The order shows that the ryots of Silvarpatti commenced the disputes and they were subsequently taken up by the ryots of other villages, of which villages exactly it is not possible to say with certainty. It is quite clear to our minds that the order was not one passed by the Collector under any powers vested in him by Regulation V of 1822. The result of the order was that the ryots continued to pay the casses. This is proved by the zemindar s accounts and as observed by the lower Courts, the contention of the tenants that they did not always do so is improbable in the circumantances. In 1834, the question was raided again by the ryots of Kammoypatti and Arunachelapuram of their liability to pay russum, uattam nottam and singilivari. An elaborate inquiry was held by the District Munsif who tried the suits, The Munsif s judgment, which was apparently passed in Original Suit NO. 237 of 1884, has been filed as Exhibit F in the present litigation. Ha found that the mittadar failed to make out his contention that the casses were payable in pursuance of the contract referred to above. He disallowed sangilivari but held that the mittadar was entitled to the payment of the other casses, russum, vattam and nottam. He found that they had been paid ever since the year 1825, that the ryots liability to pay them, was maintained by the Revenue Authorities in 1858 and that there was no reason for holding them not liable to make payment in future. The lower Courts have found that after the litigation of 1884, the payment of these casses has been continued; on some occasions, the mittadir distrained the property of the ryots for failure to pay vattam. He was evidently advised that distraints would be illegal for any dues not entered in the pattas. He apparently, on that ground, entered the liability for vattam in the pattas tendered to the ryots from about the year 1900. The ryots do not seem to hare objected till the present litigation to the entry of vattam in the pittas tendered to them. It is noteworthy that the mittadar did not take the responsibility of entering the ryots liability for the payment of nottam in the pattas of 1317. The mittadar has this fact established in his favour to start with, that vattam has been paid by the ryots ever since the year 1825-26. The mittadar did not, in this case, set up any theory as to the nature of the cess or why it was made payable originally. He was, evidently, prudently advised in abstaining from giving any reason for his right to recover the cess. He took up the position that, as vattam. had been paid for a long time, it must continue to be paid hereafter and he asks the Courts to presume that there must have baen some lagal ground for its payment, and to presame also, from payment for a long time, that the ryots entered into an implied contract with the mittadar to pay the cess always. The ryots did set up a theory of their own as to the reason for the payment of vattam They conteaded that vattam was a paymant made for the remuneration of kudi shroffs or ambalams. This was their contention in the suits of 1834 also. Both then and now they failed to make out this contention. The position of the matters, therefore, is this:--vattzrn was not paid before 1825 but has been paid continuously since then till the Fasli year 1317. The ryots did not make the payment throughout the period without dispute, but made two attempts to free themselves from the liability to pay the cess, once in 1855 and again in 1884. The result of their failure on the two occasions was, of course, to make them continue the payment until they thought they obtained a fresh chance to raise their dispute again in consequence of application of Act II of 1891 to the estate. The question now is, whether, in these circumstances, it can be held that vattam can be regarded as a fee or a charge payable with the rent according to established usage or law. Usage mast be of ancient origin. It cannot be held that the mittadar had established any customary right to levy this cess from his ryots. Even after the payment commenced, the ryots questioned their liability twice as already pointed out. It cannot, therefore, be said that there was any continued consciousness on the part of the ryots of an obligation on their part to pay vattam. Mr. Srinivasa Aiyangar argued that payment after dispute is of even more importance to establish usage than if no dispute ever existed. We cannot accept this contention. If the subsequent payment was not the result of judicial decisions, there might be force in his argument. It would stand to reason to hold that the voluntary giving up of a dispute raised by a party would be evidence of consciousness on his part that this dispute was not sustainable and was contrary to his legal obligation. But every one is bound to obey the decisions of Courts, and such obedience cannot be said to be evidence of consciousness from which a custom can be inferred. Is the plaintiff then entitled to the payment of vattam along with rent by law? The argument on this point is that from payment for 30 years a contract to pay it for ever must be implied, and everything necessary to the validity of a contractual obligation must also be presumed and it must, therefore, be taken that there was some consideration for the agreement to pay vattam for ever although the plaintiff is unable to suggest what that consideration was. It is, no doubt, true that from periodical payments by one person to another for a long time the Court may presume that there was some reason which made it legally obligatory on the payer to make the payment. The Court would be against supposing that a payment was made voluntarily or out of generosity for a long time Arumugam Chetti v. Venkateswara 28 M. 441: 15 M.L.J. 292. But such a presumption may not arise on account of the payment; if the circumstances or the evidence in the case show that the payment was for a charity, the Court might not take the presumption. Thus in Ramalingam Chettiar v. Ramaswami Aiyar 13 M.L.J. 379 this Court held that a cess paid for a long time called tiruppani, that is, contribution for the repair of a temple, was not obligatory on the ryots. In Siriparapu Ramanna v. Mallikarjuna Prasada Nayudu 17 M. 43 a fee paid for the maintenance of a temple was also held to be not binding if the ryot was unwilling to continue the payment. In Gutta Venkatasubbanna v. Raja Vengoti Govinda Krishna 19 M.L.J. 273; 4 M.L.T. 433; 3 Ind. Cas. 610 a fee called pirathuvaree was found to be voluntary and therefore, not enforceable by the zemindar. It had been paid for a long time for the benefit of the zemindar s purohit. Much caution is required in the application of the principle to cesses demanded by proprietors against ryots. It is a well-known fact that zemindars frequently added to their income by collecting cesses of various kinds. They levied taxes on professions and they levied other Cesses which could not, from their nature, be demanded by any one except the Ruling Authorities. Section 4 of Regulation XXV of 1802 declared that all such Cesses of a public nature should cease to be leviable by zemindars. But the provision naturally did not extend to all kinds of Cesses which zemindars imposed on their ryots but related only to cesses of a public character. The practice of making demands which were not legally maintainable was evidently not confined to this Presidency. In Bengal abwabs or legal cesses had to be put a stop to by the Legislature. It is only necessary to refer to some of the cesses levied in this very estate to show that unsupportable claims of various kinds were made by the mittadar against the ryots. He demanded a fee called kalyanamamozhi payable, apparently, on the occasion of a marriage in his house. And he claimed also payments on the occasion of Adi and Taj, claims which he evidently is not now prepared to maintain as legally enforceable. He also appears to have claimed on previous occasion cesses known as sthalam silam and langarkana. The claim of sangilivari was disallowed in the litigation of 1884. The zemindars in this country did not perhaps be have worse than aristocracy in England, who made almost every important occurrence in the lords family an opportunity for making exactions against their feudal tenants. According to Section 4 of Act VIII of 1865, it is not enough to show that a payment has been made for a long time. It must be shown that the fee or charge is payable along with rent. According to the construction put by this Court on that word, the payment must be one which has been made as an incident of the tenure, that is, it must be one which was part of the consideration for the ryot of holding the land; or as put in another case, it must be a charge on the ryot s holding. We must not forget the fact that ryots were formerly less influential and less educated than they might be now. It must also be remembered that mamool is departed from with more difficulty in this country than elsewhere. If we had to deal merely with the question whether from continued payment for a long time of some claim, standing by itself, it would be more easy to presume an origin which would make the payment in the future legally obligatory, then we have to consider the case of an additional payment made by a ryot to his landlord. We cannot say that mere payment for a long time would in all cases justify the presumption of a legally enforceable contract to pay for ever. Very often, positive evidence is not available to prove the circumstances under which the payment commenced. Substantial light is often thrown by the name of the cess although the payment may have ceased to be applied for the purpose indicated by the name. Thus tirupani cess, which was held to be unenforceable is Ramalinga Chettiar v. Ramaswami Aiyar 13 M.L.J. 379 may have ceased some years before the commencement of disputes for repairs to any temple. There would be no justification for holding that the cess must be held to be obligatorily leviable against the ryot, unless the zemindar can show that, after the object for which it was originally intended failed, there was a fresh contract founded on fresh consideration to continue to make the payment. In deciding whether a presumption should be made in this case in favour of the mittadar, the case set up by him on previous occasions cannot be ignored. As to the origin of payment, he stated both in 1855 and 1884 that vattam was a payment made as compensation for any loss the zemindar might sustain in converting various coins in which ryots might pay their rents into coins in which payment would have to be made to the authorities of Government on account of peishcush. That theory is in accordance with the signification of the word vattam. The word may mean also discount, commission, or brokerage. The origin suggested by the mittadar was that it was compensation for loss in procuring the necessary kind of coins for payment to the Revenue Authorities. Apart from his case on previous occasions, the Court would be entitled to consider the meaning of the word in arriving at a conclusion as to the nature of the cess. If a zemindar incorporates cesses which might other wise be unenforceable with the rent, the ryots might not be at liberty to split up what they had agreed to be incorporated with the rent. But, in this case, as in many others, the cesses have always treated as separate from the rent, though always paid by the ryots. Possibly, the mittadar considered it desirable for the maintenance of his own dignity, to be able to collect various kinds of cesses from his ryots. Or it may be that he found that the attempt to incorporate might lead to difficulties which he might not be able to surmount. Whatever the reason may have been, the cesses have always remained distinct and unincorporated with the rent. The mittadar is entirely unable to suggest how a payment of this nature could be regarded as a charge on the land, or how it could be an incident of the tenure if it cannot be regarded as a part of the rent itself. But if the case set up by him on previous occasions was true, then indeed there would be good reason to hold that the tenants must be held to be bound to make the payment; for his theory was that, in consideration of the rent being reduced, the ryots agreed to pay these cesses. That would be good consideration for the promise to make the payments, and there would be no reason for holding that they were not bound by such an agreement. But, if that theory was true, it would also follow, unfortunately for the mittadar, that the vattam would cease to be payable when the ryots themselves began to pay in the coins in which he would have to make payment to Government. A fee payable for a particular purpose can no longer be enforced when that purpose fails. The mittadar has expressly stated on the previous occasions that vattam was payable for the purpose of enabling him to convert the coins in which his ryots made payment into others. Conversion having ceased to be necessary, the mittadar ceased to be entitled to the payment. The fact that the ryots have continued to pay for a long time after conversion of their coins became unnecessary would be no ground for compelling them to make the payment when they object to it. It is not stated that there was any fresh contract when a charge took place in the manner of the payment of rent originally in vague amongst the ryots. On the view, therefore, put forward by the mittadar on the occasions of previous disputes, we must hold that he was not entitled to enforce payment when the disputes arose in 1317.