KOTTA VENKATRAJU GARU Vs. SRI RAJAH SAHIB MAHARBAN DOSTAN SRI RAJA RAVU KUMARA MAHIPATHI SURYA RAO BAHADUR GARU, SIRDAR, RAJAHMUNDRY SIRCAR AND MAHARAJA OF PITHAPURAM

JUDGEMENT

(1.) This appeal arises out of a suit filed before the Deputy Collector, Cocanada, under Section 77 of the Madras Estates Land Act, 1908, by the Maharajah of Pithapuram, to recover from the appellant and 5 other tenants an aggregate sum of Rs. 11-1-4 for water taken by them without his permission from his tank for the purpose of raising wet crops on dry lands in Faslis 1336, 1337 and 1338. Paragraph 5 of the plaint, which is in Telugu, has been translated as follows: The defendants have no right whatever to use the said water for the jirayati dry lands in the aforesaid manner. As the defendants used the said water unjustly the amount of Rs. 9-15-7 as per particulars hereunder towards tirva and cesses thereon, with interest (was due) and in spite of several demands by the plaintiff's officials, both oral and written, the defendants did not pay as mentioned above.

(2.) The difference between this sum of Rs. 9-15-7 and Rs. 11-1-4 represents the claim for interest. The main lines of defence were: (1) the Revenue Court had no jurisdiction to entertain the suit as it was a suit in tort; (2) even if it could be treated as a suit for rent it could not be maintained as it amounted to a claim for enhanced rent contrary to the provisions of the Act; and (3) the terms of the patta precluded the plaintiff seeking extra rent. The appellant denied that the water belonged to the plaintiff and alleged that he had used it for only one Fasli (1338), and then not on drylands. The Deputy Collector dismissed the suit holding that the water belonged to the defendants and that the terms of the patta precluded the plaintiff from claiming any enhanced rent. An appeal followed to the District Judge of East Godavari, who held that the tank did belong to the plaintiff and that water had been used for the three Faslis mentioned in the plaint on dry lands belonging to the defendants. With regard to the pleas that the Revenue Court had no jurisdiction and that the suit as framed was bad he held that the Civil Court had no jurisdiction and that the plaintiff was entitled to recover. He disallowed the claim that the terms of the patta precluded any enhancement of rent. The findings of facts of the District Judge are conclusive and, therefore, before us the appeal has been confined to the three main questions. The appellant was the sixth defendant and he alone has appealed.

(3.) With regard to the contention that the suit is in reality a suit to recover damages for tort, it should be borne in mind that it was instituted under the provisions of Section 77 of the Act which relates only to the recovery of arrears of rent. Section 3(11) defines rent as meaning whatever is lawfully payable in money or in kind or in both to a landholder by a ryot for the use or occupation of land for the purpose of agriculture and includes whatever is lawfully payable on account of water supplied by the landholder or taken without his permission for cultivation of land where the charge for water has not been consolidated with the charge for the use or occupation of the land. Therefore rent includes what is payable for water taken without permission. The suit being a suit under Section 77 and being for the recovery of the value of water taken without permission, we consider that it must be treated as a suit for rent and not a suit in tort. The word unjustly was introduced obviously as meaning without right.