NANCHAPPA KOUNDAN Vs. VETESSERI TARWAD KARNAVAN

JUDGEMENT

(1.) The question at issue in these appeals is, what is the amount of rent payable by the defendants. They held on a. permanent lease and the question for consideration is, what are the terms of that lease. The District Judge has held that under their contract defendants have undertaken to pay rent for the new land assessed to revenue and he has held that the words "lands assessed to revenue" do not necessarily mean lands permanently assessed in accordance with the Settlement Register but include lands which have been once assessed to revenue by the Government, and that it is immaterial that assessment is not shown in the Government Settlement Register. It is clear from the terms of the document that the payment of rent to the plaintiff is to commence as soon as the lands are assessed. The lease is an improvement lease under which the lands are to be gradually brought under cultivation and until they are so brought under cultivation nothing would be payable either to the Government or to the jenmi.

(2.) It is contended for the appellant that the meaning of "assessed" must be permanently assessed, although, as a matter of fact, there is no permanent assessment in the Malabar District, but it is contended that it must be permanent in so far as the Government registers the assessment due, and for this interpretation reliance is placed upon the judgment of this Court in A. S. No. 206 of 1914, etc. There are expressions used in that judgment which support the appellant's contention such as the one that "payment was to be made when Government assessed on a permanent basis", but in construing these words we have to consider the whole of the judgment and it appears that in using these words "permanent basis" the learned Judges intended to differentiate between that and assessment on what they call "fugitive cultivation" which is cultivation of a very temporary nature and does not continue for more than one or two years at the most. That this is the distinction that they draw, I think, is clear from the fact that they held that the rent is leviable on unoccupied dry land whether it is cultivated as wet land or not.

(3.) In the present case, the learned District Judge has found as a fact that those lands for which rent is claimed were actually brought under wet cultivation and paid rent for a period of 22 years, and accordingly he has held that all such lands come within the meaning of the clause in the lease, under which the tenant agrees to pay, from the year in which Government revenue is paid, rent at the rate of 3/4 of a para for one para seed area. It is suggested that this clause means that the rent is payable only in the years when revenue is actually paid to Government, but inasmuch as the rent is made payable from the year in which such revenue is first assessed this contention cannot be sustained. The District Judge is right in holding that the rent becomes due from the first time that the land is assessed. The fact that at the Settlement the Government has omitted to include some of these lands in the assessed area cannot affect the liability of the tenants which had been incurred before the Settlement came into force On the construction of this document, I agree with the learned District Judge and consequently the appellant's contention fails.