P VARADA REDDI Vs. SRINIVASA MUDALIAR

JUDGEMENT

(1.) These Second Appeals arise from suits brought by the plaintiff landholder under Section 77 of the Madras Estates Land Act for the rent of Fasli 1325 alleged to be due to him from his -permanent occupancy tenants, the defendants. He claims rent according to the waram system but the tenants plead that they are bound to pay only money rents as fixed in their muchilikas Ex. O series. The lower Courts have decreed the landholder's claim as brought and hence these appeals by the tenants.

(2.) The main dispute between the parties centres round the first issue whether the tenure is rokkam or waram. The landholder is entitled to revert to the waram system unless the ryots establish that it has been superseded permanently by the cash system by contract, express or implied, between them and the landholder. See Ayyaperumal Odayan V/s. Ramaswami Chettiar (1915) 29 M.L.J. 362 and Muthiah Chettiar V/s. Periyan Kone 11 L.W. 311. Now in this case there is an express finding by the lower Courts that the waram system was the prevailing tenure in the Estate. It is however contended that this finding should not be accepted as it is based on recitals in pattas Exhibits A, C and E which as admissions in his own favour by the landholder cannot be relied on by him and on statements in muchilikas Exs. B, D and F which have not been proved. These muchilikas were taken to be more than 30 years old by the lower Courts and as coming from proper custody their proof was dispensed with. The lower Courts are shown to have gone wrong there, as the dates on the exhibits show that they were not really 30 years old when tendered in evidence. But apart from these documents there is evidence to show that the tenure was a waram tenure to start with and, that also being the presumption, evidence Is not necessary to prove it unless the presumption is rebutted, to do which the burden is on the ryot. In this case there is some evidence that for several years the ryots paid money rents but such payments were made under specific contracts "in term pattas," for stated periods and the rates varied from time to time. They only show the existence of special contracts remaining in force in particular years and no inference can be drawn from them that the waram system was permanently given up. The1, last of such contracts is evidenced By Ex. O series which provided for a money payment for 10 years from Faslis 1314 to 1323 ; by its own terms the contract came to an end in Fasli 1324 and from that Fasli the landholder was entitled to revert to the waram rates.

(3.) It is next argued that even assuming that the plaintiff was entitled to revert to waram rates he is nevertheless disentitled to enforce those rates in Fasli 1325 without properly tendering a waram patta in Fasli 1324 by reason of the provision in the latter part of Clause (3) of Section 52 of the Estates Land Act and such a tender has not been made out. Before dealing with the applicability of the section it may be stated that waram pattas were attempted to be tendered to the ryots by the plaintiff in Fasli 1324 in which year he distrained the crops for rent. But in the ryot's suit to set aside the distraint, it was held by the Courts that the tender was not proper as regards the present defendants and in consequence the distraints were set aside. That finding in Ex. X is clearly res judicata and the question cannot be re-agitated and we must take it that there was no proper tender of any patta in Fasli 1324.