Andi Moopan vs Mohideen Meerat Bivi and Others

Curgenven, J.—This second appeal arises out of a suit brought by the plaintiff as huqdar of a mosque, for the melvaram paddy alleged to be

due upon a land in the holding of the defendant. The plaintiff''s case was, in brief, that the defendant and his predecessors-in-title had been paying

something short of the correct amount of rent, and that the true rate was to be ascertained from an entry in the settlement register. Both the lower

Courts have given effect to this contention.

There is a preliminary objection that, u/s 102, Civil P. C. no second appeal lies because the suit was of a nature cognizable by a Court of Small

Causes. The answer which is, I think rightly made, is that by Art. 7 of Sch. II of the Provincial Small Cause Courts Act suits for the assessment,

enhancement, abatement or apportionment of rent are excluded and that this suit falls within one or other of those classes. The plaintiff, in my view

of the nature of his suit, claims to enhance the rent which the tenant rightly or wrongly has paid for a great many years, and I hold that such a suit is

not cognizable by a Small Cause Court and that the objection fails.

In dealing with the merits the lower Courts consider that, although the ryot in occupation of this holding may have been paying a lower rate for

many years, yet he is bound to pay the rate which they deem to be fixed by the inam register, extract from which is Ex. B. The learned Subordinate

Judge has erroneously referred to this record as the inam title-deed, and it is possible that under a misconception as to its nature he has attached

too much importance to the evidence it affords. There can be no doubt that the object with which it was compiled was to ascertain and record the

terms upon which the inam was to be held, and that, although it makes reference to the rent payable by the ryots to the inamdar, it does so only in

order to exhibit the material upon which the quit-rent due from the inamdar to the Government is assessed: see Sri Rajagopalaswami Temple v.

Jagannadha Pandiajiar [1913] 38 Mad. 155.

Further, this reference to rent, upon which the lower Courts have relied, is in these terms:

The land in this village was settled on the olugu tenure. The ryots have their own pilli sarasari or the average assessment in kind on the aggregate

holding of each. The inams have been subject to be charged on the average assessment of the village.

There follows a calculation which is undoubtedly ""the average assessment of the village"" in terms of paddy, because this in turn is followed by

figures showing ""the total inam assessment on this average."" It is a purely gratuitous as sumption that any given ryot was actually paying rent to the

inamdar at this average rate. This is quite clear from what I have quoted from the inam register. It is not possible to derive from it anything more

than the average rate of rental. In referring to this olugu or olungu system it is stated in the Gazette of the Tinnevelly District, Vol. I, page 284, that

what happened in practice was that the head ryots and the cultivators worked out among themselves some sort of distribution of dues according to

the quality of the fields which each man cultivated.

The average, in other words, was maintained by some ryots paying more and some less

It is evident, therefore, that the District Munsif is not justified in concluding that ""the proper rent"" is that shown in the inam register, and that the

Subordinate Judge is equally in error in saying that the, defendant ""is bound to pay the rent at the rate fixed in the inam title deed."" The document

has been misconstrued, and there is in fact no evidence, let alone conclusive evidence, that a higher rate of rent than the 2 1/2 kottas paddy, plus

Rs. 12 quit-rent admitted, has over been paid. In these circumstances, the presumption that this is the rate contracted for between the parties must

prevail. I allow the appeal, modifying the decree by substituting the rent as above, with interest till date of payment as allowed by the lower Court

and with costs to the defendant throughout. It is said that the 3rd respondent, a legal representative of the original plaintiff, who has since died, has

compromised in respect of his share, but inasmuch as it is an undivided share, it is agreed that effect cannot be given to the compromise in these

proceedings.