RAMASAMI SERVAIGARAN Vs. ATHIVARAHA CHARIAR

JUDGEMENT

(1.) The defendants Nos. 1 and 2 are the appellants in this case. The plaintiffs are landlords and the defendants are tenants under the Madras Estates Land Act. The only questions involved in the second appeal and in the connected memorandum of objections are : (1) whether the plaintiffs are entitled to claim rent on the lands left waste in the defendants holding if the defendants do not establish that the lands were so left waste without their default, (2) whether the defendants are bound to pay ordinary dry rate of rent on the area of a house site included in the defendants holding and whether that question is res judicata in favour of the defendants (as the defendants contend) or in favour of the plaintiffs (as the plaintiffs contend), and whether the plaintiffs are entitled to claim rent for the house site, item 70, at Nanja rates and not merely at Punja rates.

(2.) As regards the, first point, I have come to the conclusion (after the beat consideration that I have,, been able to give to the question) that the law on this point has been correctly expressed in the judgment in Arunachallam Chettiar v. Mangalam 35 Ind. Cas. 329 : 31 M.L.J. 168 : 20 M.L.T. 70 : 4 L.W. 37 : 40 M. 640 where all the principal authorities have been carefully considered. Under Section 4 of the Madras Estates Land Act, the land-holder is entitled to collect rent in respect of all Ryoti land in the occupation of a Ryot and it does not make this right subject to any custom. Prima facie, Section 4 entitles the landlord to collect rent on the land left waste by the tenant. See Segu Rowthen v. Alagappa Chetty 22 Ind Cas. 834 : 26 M.L.J. 269 : (1914) M.W.N. 340. The intention of the parties was, however, held in the above case to override Section 4. In the case in In Re: Arunachalam Chettiar 30 Ind. Cas. 679 : 2 L.W. 828, the custom of allowing a reasonable portion of land in a tenant s holding to be left fallow without being sharped rent on it was held a valid custom. In Imandi Appalaswami v. Rajah of Vizianagdram 20 Ind. Cas. 838 : 25 M.L.J. 50 : (1913) M.W.N. 806 it was held that if the tenant chooses to build on the agricultural site instead of using it for agricultural purposes, be cannot escape payment of rent on the basis of its continuing to be agricultural land. I think the observations in the judgment in Arunachallam Chettiar v. Mangalam 35 Ind. Cas. 329 : 31 M.L.J. 168 : 20 M.L.T. 70 : 4 L.W. 37 : 40 M. 640 establish that the tenant is bound to pay rent on land left waste, unless he establishes an agreement or custom allowing a reasonable extent in area to lie fallow for reasonable periods or some other reasonable custom or a contract for consideration exempting him from payment of rent on lands left waste put of the lands in his holding.

(3.) In Vedanta Chariar v. Ayyasami Mudali 4 M. 3 2: 1 Ind. Dec. (N.S.) 1060 Innes and Kindersley, JJ. express an opinion that the landlord had the right to collect the whole rent notwithstanding that a portion of the land was left uncultivated through want of rain. In Nogu Chetty v. Bhaskara 9 Ind. Cas. 41 : (1911) 1 M.W.N. 6 : 9 M.L.T. 191 it was held that for the protection of the "just interests of the Zamindar" it is reasonable to have a provision in a Pattah that the Ryot must pay Melwaram or Theerwa if through his fault the lands are not cultivated. I do not think that a custom to let lands lie waste (without regard to reasonable area and without regard to good or bad seasons and existence or absence of facilities for irrigation) for indefinite periods at the tenant s sweet will and pleasure, with absolute freedom from liability to nonpayment of any rent, is a reasonable custom which can be recognised by Courts. In the present case, it is such a custom that seems to have been set up. I think the learned District Judge was right in throwing on the Ryots the burden of proving that the lands were left waste not through the default of the Ryots. I would, therefore, decide the first point in plaintiffs favour.