DORAISWAMI GURUKKAL Vs. SUBRAMANIA GURUKKAL

JUDGEMENT

(1.) The facts of these Second Appeals are as follows: The plaintiffs are Dharmakarthas of Sri Venkateswaraswami Temple in Kadapperi Village in Chin-gleput District, to which temple the suit village belongs as Shrot-riem. There is no question in the case that the Shrotriem is not an estate. The litigation has proceeded on the footing that it is an estate. The suits were brought by the plaintiffs under Section 56 of the Estates Land Act for the acceptance of pattas and the execution of corresponding muchilikas. The pattas contain a new clause as compared with the former pattas. The additional clause runs thus: Since for raising second or third cropsi on the single crop nanja land among the lands referred to in paragraph 1, and for raising first, second or third crops on the poramboke varappathu nanja lands, they have to be irrigated with the Madurantakam tank water, and since the Government charge the Shrotriem office, water-cess at the rate of Rs. 4 per acre for the first crop, Rs. 2 for the second crop and Rs. 2 for the third crop, you shall pay the amount of that water-cess together with merai, road-cess, etc.

(2.) The necessity for the insertion of this new clause in the suit pattas tendered for fasli 1331 arose thus : The suit lands have been irrigated for a long time by the water of the Madurantakam tank which is a source belonging to Government. In Srinivasa Aiyangar, J.'s referring judgment it is said: There has been not even a suggestion in this case of a work of irrigation or other improvement having been executed at the expense of Government. The Madurantakam tank is conceded to be an old tank.

(3.) But my brother Jackson, J., observed in the course of the argument that the tank was constructed by a Collector named Mr. Plaice. We must take it therefore that this was a work executed at the cost of the Government, but the Government charged no water rate up to fasli 1331. In or about that year the Government carried on a mamul wet survey, that is, a survey for the purpose of determining how much of the lands of suit village were entitled to water from the Government source free of water rate and if it is found that some lands are not entitled to water free of charge to take steps to impose water-cess under the Irrigation Cess Act, VII of 1865. The lands found to be entitled to water free of charge were presumably entitled to be so with reference to the engagement in the inam title deed. The result of the survey was that some of the lands in the village were found entitled to water right but others were not. In the case of those others the Government imposed water-cess at the rate of Rs. 4 for the first crop, Rs. 2 for the second crop and Rs. 2 for the third crop, and collected the amount from the landholders, the plaintiffs. The object of the new, clause is to make the tenants liable to pay the amount of water-cess so collected from the landholders. It is not clear from the facts of the case in any of the judgments whether the mamul wet lands are localized; if they are not localized, there is some difficulty in the way of the landholders which it is unnecessary to discuss. But probably they are; at any rate, the case has proceeded on that footing. If they are localized, it is obvious that the landholder is entitled, if not to the whole, at least to a reasonable proportion of the new burden which has fallen on the land, and it is for the purpose of providing for some contribution by the tenants towards this burden that this clause is now inserted. The point referred to us is whether this therefore amounts to enhancement of rent within the meaning of Section 24 of the Act, but incidentally, the question arises, whether this adjustment on account of the imposition by the Government of water-cess cannot be made by way of amendment of a clause in the patta, but should be made by an application to the Collector under Section 30 of the Act for a reasonable enhancement of the rent. It is argued that these tenants holdings are like the holdings of mamul wet tenants in the villages. Both contracted to pay the same rates from the beginning and if these tenants are made to pay more, It amounts to an enhancement of rent. But this argument involves a fallacy. The assumption with which it starts, namely, that these tenants holdings are like the holdings of the mamul wet tenants, is not true. Such an impression has no doubt been created by the fact that for a number of years the Government allowed all the tenants to use the water of the tank indiscriminately and woke up to the need for a mamul survey only recently. But this is merely an accident. If the mamul survey has been made immediately after the tank was constructed, those holdings which are entitled to water free of charge would have so got them. But the others would not have got water without payment; so that though the nature of the land, the soil, crops and everything else may he similar, in respect of this matter they are not similar and the suit lands would have had to bear the burden of water-cess from the beginning. Whether all of it would have fallen on the tenant or not, or a reasonable distribution would have to be made, is another matter. That some portion at least of this should be borne by the tenant also there cannot be the smallest doubt. If the construction of the tank was followed immediately by mamul survey and rents were fixed, the rents imposed upon the tenants would have included some proporation of such water-cess collected from the landholder by Government, unless the water-cess is directly paid to Government by tenants. The fact that it took some time for the legal rights of the holdings to be determined and that they are determined now can make no change. It only shows that the landholder and the tenants contracted under a mutual mistake as to the nature of the land and under that mutual mistake they acted all these years. But on the discovery of the mistake, the proper rent in respect of the land is as I have indicated above. Thus, however much one may be inclined to say that such payment to the landholder to reimburse him in respect of the water-cess paid by him to Government is rent within the meaning of the definition of rent in the Act, it is certainly not an enhancement of rent within the meaning of Secs.30 and 24. The rate of rent which I have described above is the proper rate of rent to be borne by the holdings from the time when the tank was constructed and the lands were cultivated as wet lands. In this respect I am unable to distinguish the present case from the decision in Battina Appanna V/s. Sreemanthu Raja Yarlagadda Venkata Ramalinga Bahadur Zamindar Garu . I may here observe that all the decisions under the Rent Recovery Act are not useful for discussion in the present case as the machinery provided in the two Acts is somewhat different. In the case just cited it was observed: We do not think that an extra payment due for additional advantage is necessarily an enhancement. Where new circumstances have come into existence which require new adjustment, there is no question of enhancement. I may observe that in this case there were no new circumstance or new enhancement. As I have already said, assuming that the lands were converted into wet lands soon after the tank was constructed and if the mamul survey had been then made, this is the rate which the lands would have been liable to pay from the very beginning. As to comparison with the rates of rent prior to the construction of the tank we have no means of such comparison because we have not got the pattas prior to that period.