C JAGANNADHA MUDALIAR, RECEIVER, APPOINTED BY THE DISTRICT COURT OF THE CHINGLEPUT ON BEHALF THE RAJAH OF KALAHASTI, SINCE DISCHARGED Vs. NEERVOY AUDIAH

JUDGEMENT

(1.) These second appeals have arisen out of similar suits brought by the Receiver of the Kalahasti Estate for the recovery of arrears of rent due from the tenants of different holdings in Madanambedu village in the Kachinad Taluq of the said Estate in respect of Faslis 1319 to 1821.

(2.) The legal questions (or questions of con. struction of documents) arising in these second appeals are: 35 Ind. Gas. 329: 31 M. L. J. 168 at. P. 178 20 M. L. T. 70: 4 L. W. 37: 40 M, 640. whether the defendants are entitled to remission for Fasli 1319 on account of savi, 13 M. L. J. 377.: whether the plaintiff is entitled to charge special rates for garden crops raised by the defendants with the aid of the water of the wells dug at the tenant s Own expense; 5 Ind: Cas. 911: 20 M. L. J. 142: 8 M. L. T. 116. whether the plaintiff is entitled to make any charge for a second crop raised on wet lands by the defendants, and 28 M. 444: 15 M. L. J. 292. whether in ten of these suits brought against ten sets of defendants, the questions relating to remission for savi, to special rates for garden crops and to the charge for second drop are res judicata in the plaintiff s favour by the decision Exhibit B in Suits brought in 1901 by the said ten sats of, tenants in the Revenue Court of the Chingleput Deputy Collector under the old Rent Recovery Act of 1865, these suits having been brought for the release of the attachments made by the Kalahasti Estate. (for recovery of arrears of rent for Fasli 1309, and the suits being based on the grounds (among others) that , the pattahs tendered to the tenants were improper as containing terms providing for rents at higher rates for special crops and for recovery of rents for raising second crops, etc., and that no remission was given for savi. 2. I shall deal with the fourth point first. The findings in the decision Exhibit B, were given in suits brought under Act VIII of 1865, which Act did not empower the Revenue Courts to entertain suits for rent. The present suits are suits for rent over which, jurisdiction was given to Revenue Courts by The Estates Land Act of 1908. In Second Appeal No. 2574 of 1913 decided, by Wallis, C. J., and Ayling, J., it was held that the findings of a Revenue Court as to the proper terms of a pattah in a suit under Act VIII of 1865 were not res judicata in a suit in the same Revenue Court filed under the Estates Land Act for recovery of rent. 1 must, therefore; find this fourth point against the plaintiff.

(3.) As regards the first point (remission for savi), the dispute between the parties is whether remission for sari is a mere matter of grace on the part of the landlord or whether the tenant is entitled to it (wholly or proportionately as the case may be) as a matter of right, where it is established that the crops have become wholly or partly savi without the tenant s fault. The answer to this question has to be based on a consideration of the contract between the parties (as gatherable mainly from the fattas and muchilikas which have prevailed) and the custom of the zemindar. The relevant portion of the muchilikas (see for example Exhibit I) which have been executed by the tenants is as follows:---"Out of the amount realised in respect of the lands in my holding no remission need be given unless it is found that there was savi (or withering of crops) and beedu (waste) without my fault." Now it cannot be contended by the landlord that if the land was left waste without the tenant s fault, he is not entitled under the terms of the muchilikas to; remission. Beedu and savi being placed on the same footing in the muchilikas, T. think that according to the true construction, of the pattahs and muchilikas, the tenant is entitled to remission for savi caused without his fault. Though the clause in question in the muchilikas is worded in the negative, it clearly implies the corresponding positive clause that remission should be given if the opposite state of facts is established. The Deputy Collector says in his judgment: "The karnam of the village P. W. No. 2, who has been in the estate service, for 20 years, says that it is usual to grant remissions and D. W. No. 1, who is the manager of the village having an experience of about 50 years, also says that the proprietors used to grant remission. From the evidence on both sides it is clear that there was much savi in Fasli 1319 due to want of rains and not to ryots negligence". And then the; finds that the ryots are entitled both according to the terms of the muchilikas; and according to custom to claim remission I think he is right and I decide this first point also against the plaintiff-appellant, though in the absence of, muchilikas, it seems to be the law that "remission is a matter of grace and it would require very strong evidence to show that remission can be claimed as a matter of right [See Arunachalam Chettiar v. Mangalam (1) 35 Ind. Gas. 329: 31 M. L. J. 168 at. P. 178 20 M. L. T. 70: 4 L. W. 37: 40 M, 640. quoting Alagappa Ghettiar v. Tirunagavalli 13 M. L. J. 377.] 3. As regards the remaining points 2 and 3, I think that Section 13, Clause 3, of the Estates Land Act as interpreted by the decisions of this Court negatives the plaintiff s right to claim special rates for garden and second crops raised on lands with the aid of water due to improvements, effected at the tenant s own expense The finding of fact in this case is that the cultivation of such crops is due solely to such improvements. [See on this point Paramaswami lyengar v. Pusala Thevan 5 IndCas. 911: 20 M. L. J. 142: 8 M. L. T. 116. Arumugam Chetty v. Raja Jaga Veera Bamu Jenkateswara Ettappa 28 M. 444: 15 M. L. J. 292., Bughava Nuidu v. Muthiyalu Naidu 26 Ind. Cas. 364: 28 M. L. J. 301, Arumugam Chetty v. Jagaveera Rama 8 Ind. Cas. 330: 35 M. 134: 9 M. L. T. 76., Mallikarajuna Prasada v. Vemulapalli Subbaya 10 Ind. Cas. 68, 36 M. 4: 9 M. L. T. 443. (1911) 1 M. W. N. 315., Arunachalam Chetty v. Syed Ahmed Ambalam 31 Ind. Cas. 539: (1916) 1 M. W. N. 237: 2 L. W. 1117: 19 M. L. T. 138.] Of courseif there was a contract to the contrary for consideration before the passing of the Estates Land Act such contract would be valid. [See Govind Doss v. Gurram Chinnappa Naidu 27 Ind. Cas. 869: 28 M. L. J. 136: 2 L. W. 142.] No such contract has been established in this case. If at least the lands on which the wells had been dug were poramboke lands at the landlord s disposal, his not charging rent for the sites of the wells dug by the tenants may be taken as sufficient consideration for the agreement to pay enhanced rates for special crops due to the wells. [See Govind Doss v. Gurram Chinnappa Naidu 27 Ind. Cas. 869: 28 M. L. J. 136: 2 L. W. 142.] But the evidence of P. W. No. 2 in this case is as follows:---"The ryots have dug wells in their dry lands from their funds. It is impossible to raise special crops without well water. There are no zamin wells in the village."