K RAMACHENDRA THEVAR, ZEMINDAR OF PALAYAMPATTI Vs. SVVELAYUTHA NADAN,; NARAYANA NADAN AND ANRAND SIVA SIVATHALPERIYAVA NADAN

JUDGEMENT

(1.) The landlord in these suits under the Madras Estates Land Act appeals in respect of three items, namely, Vanpayir, (2) Pada Nazzar,(3) Vagaira,

(2.) On the first point, we think that the District Judge was in error in regarding the provisions of Section 13 (3) of the Act as precluding him from finding, from the payment of higher rate for a long series of years prior to the passing of the Act, that an implied contract existed to pay at these rates in future. It was decided in Venkata Perumal v. Ramudu 27 Ind. Cas. 688 : 39 M. 84 28 M.L.J 81 (1915) M.W.N. 132 17 M.L.T. 129 that Section 13 applied to improvements made after the new Act same into force and had no retrospective effect. The Judge has referred to the fact that the Jamabandi accounts and Pattas show that these special rates have been paid since 1330, and we must now ask him to find as a question of fact whether the payments made by each of the tenants concerned in these appeals have been continuing for such a length of time that it may be properly presumed that they are based on an agreement between the parties and that there must have been some consideration for that agreement. We do not follow the judgment of the learned Judges that decided Arunachelum Chetty v. Syyad Ahamed Ambalam 31 Ind. Cas. 539 : 2 L.W. 1117 : 19 M.L.T. 138 : (1916) 1 M.W.N. 287 so far as they expressed an opinion that consideration for agreement implied from payments for a number of years must depend on independent proof for its existence and cannot be presumed from the same facts as the agreement itself. [Vide Prayaga Doss Jee Varu v. Venkama Naidu 44 Ind. Cas. 641 : 23 M.L.T. 137 : 7 L.W. 477 : (1918) M.W.N. 346]

(3.) On the second point, the District Judge has found that Pada Nazzar was not a part of rent, there is evidence to support his finding and the name itself suggests that it is a payment of the description referred to in Section 143, rather than in Section 3 (11) of the Act. We think this was rightly disallowed. On the last point it has not been shown that any crops other than those described in Clause 9 of the Patta were grown in the suit Faslis and, therefore, the omission of the word "va-gaira" in the Pattas for that Fasli is immaterial. The clause as amended by the lower Court may stand in the present Patta.