M S GOPALASAMI CHETTIAR Vs. ROBERT FISCHER

JUDGEMENT

(1.) This is one of a large batch of suits in which the Mittadar of Salem sued his tenants to enforce acceptance of puttahs in which he had entered a charge on account of fruit trees grown on their puttah lands, in addition to the acreage rent fixed on the lands at the time of the permanent settlement.

(2.) The Mittadar claims that, by the custom of the Mittah, he is entitled to make a charge for every fruit tree coming into bearing as well as for every palmyra tree, whose leaves are useful for thatching, growing on the puttah land of a tenant,as soon as the tree comes into bearing, or yields useful leaves as the case may be. This charge by the same custom takes the form of a tax on each tree in addition to the rent on the field where the trees are scattered, and where the trees form a clump or tope, of an addition to the land assessment of the field of an amount equal to itself. The charge is made in all circumstances, whether the ryot raises the trees by irrigation from sources constructed by himself, or from the Mittadar's sources whether the trees are grown upon nanjai land or upon punjai land and whether they were planted by the ryot or by the Mittadar.

(3.) The Deputy Collector upheld the custom and found the charges proper, except in these cases where the trees were grown with the aid of water from wells sunk at the ryot's expense after 1865. In these latter cases he amended the puttahs by omitting the tree tax on the ground that the charges on account of the fruit trees were enhancements of rent and were prohibited by the proviso to Section 11 of the Rent Recovery Act (VIII of 1865, Madras). On both points the District Judge concurred with the Deputy Collector and dismissed the appeals made to him. The tenants whose wells were sunk prior to 1865 have for the most part acquiesced in the decision of the Courts below. But the present appellant and a few others appeal on the ground that, even where the improvements were made prior to 1865, the Mittadar has no right to levy the so-called tree tax; and in a number of suits the Mittadar appeals on the ground that the Courts below are wrong in finding that the right was taken away by the Act of 1865 in regard to trees grown with the aid of water from wells sunk after that date at the tenant's own expense. In some of the suits a further important question was raised as to whether the Mittadar's original right, if it existed, was now lost in consequence of a contract implied from a long course of conduct between the Mittadar and the tenants concerned that the tax should not be levied on them.