Boisimo Patro and Another vs T.V.N. Chakravarty and Another

Ray, J.—These two appeals have been heard together by consent of parties in view of the common question of law involved therein and shall be disposed of by one judgment.

T.V.N. Chakravarty Pantulu Garu filed one suit for recovery of rent against Baishima Patra and another in respect of one holding and filed another suit against Dandapani Das and another for recovery of rent in respect of another holding. In both the suits the common plea was that the rent claimed was not lawfully payable. The suit giving rise to second Appeal No. 5 of 1941 was decreed in part and the other suit was dismissed by the trial Court. The plaintiff-landlord took up appeals in both the suits. The learned District Judge allowed the appeals decreeing his suit against Baisima Patra and another for 13 annas 10 pies for Fasli 1347 as against defendant 1 and Rs. 5.4 4 for Fasli 1348 with interest as against defendant 2 and remanding the other suit to the trial Court for disposing of the suit in accordance with law after determining the rent that is lawfully payable. The tenant-defendants have preferred these appeals: S.A. No. 5 by Baisima Patra and Akul Das and S.A. No. 25 by Dandapani Das. These appeals have been referred to the Division Bench by Manohar Lall, J.

In order to set the question of law involved in its proper setting, it is necessary to set out in some detail the facts giving rise to the controversy.

In the suit against Baisima Patra and Akul Das, Baisima was the original tenant and Akul is the assignee. The plaintiff claimed arrears of rent of 13 annas 10 pies for Fasli 1347 and Rs. 6-8-10 for Fasli 1348 on the basis of the annual rent including 13 annas 10 pies of land-cess and 2 annas 1 pie of educational cess, that is, Rs. 19-4-4 settled according to a muchalika (kabuliyat) Ex. A executed by Baisima Patra in favour of the plaintiff-landlord on 30-4-1931. Admittedly the annual rent payable till the date of muchalika was Rs. 14-11-6, plus proportionate cess. The defence against this claim was that the annual rent lawfully payable in respect of the holding is Rs. 14-11-6, and the enhanced rate claimed on the basis of the muchalika is unenforceable inasmuch as no rent can be enhanced except in accordance with the provisions of the Madras Estates Land Act, 1908, (see Section 24). Exhibit A is impugned by the defence as void as it purports to effect an enhancement of rent in a manner offensive against the prohibition of the Statute. The question, therefore, dissolves itself as to whether Ex. A effects an enhancement of the rate payable in respect of the holding. This is the issue in S.A. No. 5. The Revenue Divisional Officer (the trial Court) held that Ex. A could not be given effect to as it would override the clear provisions of law. He, therefore, granted a modified decree against defendant 2 alone for Re. 1-6-0, only holding the annual rent payable as Rs. 14-11-6 and not Rs. 18-4-4, as per Ex. A. The learned District Judge in appeal gives effect-to the contention that the sum mentioned payable as rent of Rs. 18-4-4, is the estimated value of the crops and does not represent an enhancement of the waram rate, say, from 8 annas to-9 annas in the entire produce but is merely the estimated value of the same proportion of the produce as the landlord had ever been getting at the waram rate. In this connection he also holds that it has not been proved that rent at the waram rate has ever been commuted to cash rent. In this view he gave the plaintiff a decree for the entire amount as claimed.

In the suit of S.A. No. 25 of 1945, the plaintiff claimed produce rent for the years 1350 to 1352: Fasli. The only contesting defendant 1, Dandapani, contended that the plaintiff was entitled to cash rent and not produce rent. The trial Court found, relying upon receipts, for several years showing cash realisation, granted to defendant 1, and admission of the plaintiff''s witnesses that almost cent per cent. of the tenants of the village pay cash rent, that the holding is cash rent paying and that the plaintiff had failed to establish that he was entitled to rent on waram rate basis. In this view he dismissed the plaintiff''s suit. The learned District Judge in appeal reversed the finding and remanded the suit for rehearing. The purpose of the remand was stated to be for ascertaining what is fair and equitable rent payable in respect of the holding which according to him was within the scope of the suit. For this view of his he relied upon the case in Vabalareddi Mallaya and Others Vs. Nayana Gajapathiraju Manya Sultan Bahadur, Trustee of Viziangaram Estate, He took the same view as to the nature of the tenure, namely that it was a waram tenure. According to him, mere payment of cash rent for a number of years, be it for more than 12 years prior to the institution of the suit, will not sufficiently alter its original waram character. Further according to him, the muchalikas or appraisement papers (Exs. 1 to 10), will undoubtedly go to establish that at its inception the tenancy was held on rent payable in kind.

The common question in both the appeals 4s whether payment of cash rents at a uniform rate for a large number of years will or will not give rise to a presumption that the holding is of cash rent paying tenure irrespective of its original character. In its application to a case where the tenure was waram tenure, the question may be formulated in a Slightly different way, namely, whether such payment would give rise to a presumption that the original character of the tenancy has been altered by a specific contract, in that behalf, entered into by the parties,

In S.A. No. 5, it is almost admitted that the annual rent payable was Rs. 14-11-6. In Ex. 1, the sale deed by which defendant 1 has acquired the holding and which is dated 10-5-1917, it has been recited that his vendor had been paying at the aforesaid rate of Rs. 14-11-6. There is no controversy that the same rate continued till execution of Ex. A on 30-4-1931. There is nothing on record to suggest that ever before since the inception of the tenancy the rent was paid in kind or in money representing the estimated value of the landlord''s share in the crops or at any rate varying with the crops. At any rate, it has to be kept in view that aught we know of the manner or extent of the payment of rent of the holding is that it was being paid in cash at the rate of Rs. 14-11-6, all along till April 1931. ''Then comes into existence Ex. A the muchalika which reads as follows:

Gutta muchalika (Kabuliyat) for 18 years; Yearly amount Rs. 19-1-5.

Kabuliat executed by Boisimo Patro in favour of T.V. Krishna Bow on 30-4-1931.

I have taken on lease the wet land of 1 acre 72 cents described in the annexed schedule agreeing to cultivate them and pay you rent of Rs. 18-4-5, for the crops raised from Fasli 1340 to 1357 at the annual rate of Rs. 10-10-0, per acre of wet land.

Rent ... ... Rs. 18-4-5 Land Cess ... ... " 0-9-2 Dt. Board Cess ... " 0-2-4 Taluk Board Cess ... " 0-0-9 Education Cess ... " 0-0-9 _____________ Total....Rs. 19-1-5

I shall pay the said sum in four instalments of Rs. 4-12-4, each in Sraban, Aswin, Mangasir and Pous fullmoon.

On default I shall pay interest at 6 per cent.

Repairs.

If Government vary the cesses stated above, we shall pay the lesser or higher amounts according to the variation.

In other matters we shall abide by the custom of the village.

The document does not bear any corroboration of the contention that the previous rent of Rs. 14 odd was the estimated value of the share of the crops that was payable to the landlord in the years in which the said annual rent prevailed and that the estimated value of the same identical share due to the landlord according to the waram rate was settled between the parties at Rs. 18-4-5 for the years from Fasli 1340 to 1357 without any enhancement of the waram rate, that is to say, of the share in the crops that the landlord was entitled to. Neither it is stated there that the enhancement of rent from Rs. 14 odd to Rs. 18 odd was due to increase in the market price of the crops. The learned District Judge has taken the view that there has been no enhancement in the waram rate though there is enhancement in the amount. The muchalika, however, affords no support to the view of the learned District Judge. There is no evidence to show that the defendant has ever paid at the rate stipulated in the muchalika. The learned Court of appeal below observes:

It is not the case for either side that ''waram'' rent has been commuted to money rent. Rather it is the admitted case on both hands that the tenant was paying the estimated value of the crops that were grown on the land in cash. There is a clear allegation in para. 3 of the plaint that the tenure is a ''waram'' tenure and this allegation has not been controverted by the defendants in their written statement. It has also been mentioned in the plaint that the defendant is paying the estimated value of the crops that are grown by him on the land. This allegation is supported by the recital in Ex. A in which it has been specifically mentioned that in lieu of the produce rent for the crops that are to be grown by defendant 1, for a period of 18 years he is liable to pay the estimated money value of the Rajabhogam produce during the continuance of the lease. I am therefore of opinion that Section 30 has no application, and as the landlord has not claimed an enhancement of the ''waram rate'' say from eight annas to nine annas in the entire produce, Section 29 is not a bar to the claim of the plaintiff-appellant.

[9] The learned Judge is wrong in his reading of the relevant paragraphs of the plaint and the written statement. Paragraph 3 of the plaint reads as follows:

The defendant had agreed to pay the following sums for each Fasli in 4 instalments payable on the Purnima days (last day of the month) of the months of Shrawan, Asin, Aghan and Pous for the years Fasli 1349 to 1348 in lieu of the Rajabhog which he was liable to pay according to practice in respect of the holding:

Rent duo for 1348 Fasli ... Rs. 18 4 5 Land Cess ... " 0 13 10 Education Cess ... ... " 0 2 1 _________ Total ... " 19 4 4 Less paid on 4-8-39 " 14 0 0 _________ Balance ... 5 4 4

The written statement of defendant 2, para. 3:

The annual rent of the suit land is Rs. 15-6-6 including cesses. The annual demand of the suit land is not Rs. 19-4-4 as shown in the plaint.

The written statement of defendant 1, para. 5:

The annual rent of the suit land is Rs. 15-6-6 including cesses." (Paragraph 8) "The annual rent of the suit land was never 19-4-4 including cesses. The plaintiff is unnecessarily harassing me by making such an incorrect demand. Accordingly, I have paid Rs. 15-6-6 for Fasli 1347 fully and I owe nothing.

Prom the pleadings as set forth above, it is difficult to make out that the plaint contained an assertion that the tenure of the holding was waram. The plaint para. 3 purports to base the claim for an annual rent of Rs. 18-4-4 on the defendant''s agreement to pay as much in lieu of rajahihagam for certain years according to practice. This assertion has no reference to the tenure of the tenancy at its inception. It gives the plaintiff''s reading of the agreement which is denied, if not expressly, at least by necessary Implication in the written statements of the defendants which are to the effect that the annual demand of rent is and has always been Rs. 15-6-6 including cesses. Therefore, neither the pleading nor the muchalika supports the plaintiff''s case that the tenure of the holding is waram and the muchalika does not effect any change by way of enhancement in the waram rate however much it may increase the annual demand on account of change of prices of the landlord''s share of the crops.

The question that remains, therefore, to be considered is whether the rent of the holding Is money rent or waram rent. The only evidence in the case with regard to the nature of the rent payable independently of Ex. A is that a fixed money rent of Rs. 14-11-6 plus cess used to be paid all along in respect of the holding and besides there is the statement of the gumasta of the plaintiff that:

cash rent is realised only in the Padhalo village in which the land, in suit, is situated. Before 1930, the rent of the suit land was Rs. 14-11-6.

Mr. R.K. Ratho contends, relying upon as. 24 and 30, Madras Estates Land Act, 1908, that the rent of a raiyat cannot be enhanced except in the manner provided in Section 30. Any agreement to the contrary, such as, the terms of Ex. A which has the effect of enhancing the raiyat''s rent is illegal and cannot be given effect to. He further contends that in view of the provisions of Section 28 of the Act, Rs. 14-11-6 shall be presumed to be fair and equitable until the contrary is proved, and that Section 29 is inapplicable to the case as it has to be presumed from the circumstances of uniform rate in money having been paid for a long time that the holding is cash-paying, In support of his contention as to the presumption, he relies upon Venkata Gopal v. Rangappa (84) 7 Mad. 365 and Periyakaruppa v. Raja Rajeshwara Sathupathi AIR 1919 Mad. 397. These two decisions do support the proposition that, long continued payment of rent in money at an unvarying rate in respect of a holding raises a presumption that the rent of the holding was agreed to be paid in money at its inception or that the waram rate had been converted into a money rent once and for all by a specific contract supported by good consideration. Venkata Gopal v. Rangappa (84) 7 Mad. 365 lays down that payment of rent in a particular form at a certain rate for a number of years is not only presumptive evidence of the existence of a contract to pay rent in that form or at that rate for those years, but is also presumptive evidence that the parties have agreed that it is obligatory on the one party to pay and the other to receive rent in that form and at that rate, so long as the relation of landlord and tenant may continue. In Periyakaruppa v. Raja Rajeshwara Sathupathi AIR 1919 Mad. 397 the majority of the Full Bench, where it was a case of enhancement of rent, held that a Court can presume a contract to pay the higher rate and a legal origin and consideration therefore from such long continued payment of higher rate, if that be the only evidence in the case to prove the rate payable, but that if there be other evidence a Court cannot make any such presumption from such payment alone. In Goodman v. Saltash Corporation (1882) 7 A.C. 633, Lord Selbourne said:

But an open and uninterrupted enjoyment from time immemorial under a claim of right seems to me to be all that is necessary for a presumption that it had such an origin as would establish the right if a lawful origin was reasonably possible in law.

Here, in this case, there has been shown nothing which would make it unreasonable or impossible to suppose that money rent would not have been agreed upon as a permanent agreement either at the settlement or later by way of commutation.

The learned Counsel for the respondent invokes the aid of Section 27 and relies upon the cases in Ayyaperumalodayan and Others Vs. S.R.M.A.R. Ramasami Chettiar, P. Varada Reddi and Others Vs. Srinivasa Mudaliar, and Muthiah Chettiar v. Periyan Kone AIR 1920 Mad. 115 . But, in my judgment, none of them can be of any help to him in view of the facts of this case. Section 27 raises no presumption in his favour inasmuch as the plaintiff has failed to establish that the annual demand in the revenue year last preceding the year in suit was at the rate claimed by him in the suit. On the other hand, Section 28 of the Act raises the presumption that Rs. 14-11-6 is fair and equitable. In Ayyaperumalodayan and Others Vs. S.R.M.A.R. Ramasami Chettiar, the money payment, varied with the amount of produce. The physical commodity was money and not grain as a matter of convenience. The money rent was not fixed once for all but was altered every few years. In these circumstances, it was held that the fundamental agreement of waram rate could not be taken as superseded by temporary lapses. In P. Varada Reddi and Others Vs. Srinivasa Mudaliar, the tenure was established by evidence to have been a waram tenure and it was held that the tenant was to prove that the waram rate had been permanently superseded. In Muthiah Chettiar v. Periyan Kone AIR 1920 Mad. 115 it was held that mere proof of money payment will not establish permanent variation of waram if the rates of money payment were varied from time to time.

It will be seen that in the present case it has not been proved that the tenure of the holding was a waram tenure. On the contrary, it has been proved that for all time since the inception of the holding, so far as it has been ascertained, there has always been payment of rent at a uniform rate in money. Added to this, there is the evidence of prevalence of money rent in the village for a number of years and this according to the case in Parthasarathi Appa Row v. Venkata Narasayya (10) 33 Mad. 177 forms an element in consideration of the question of usages. Following the principles of lost grant, it has to be presumed that money rent of Rs. 14-11-6 was the cash rent payable in respect of the holding. The landlord has failed to prove that the holding still continued to be a waram tenure. Exhibit A, therefore, containing a stipulation as it does of enhancement of rent contrary to the provisions of law cannot be given effect to. The plaintiff''s claim, therefore, so far as it is based upon rates stipulated in Ext. A, must fail.

With regard to S.A. No. 25/45, it has been found by the learned lower appellate Court that waram rate was payable in respect of the holding is established by muchalikas of 1898, 1899, 1904, 1294F and 1288F. The learned trial Court dismissed these muchalikas on the observation that they were not very modern to be accepted as proof of the prevailing rate. This may be so, but as correctly observed by the learned lower appellate Court, they do prove that the tenure of the holding was originally waram. In that case it has to be established by the tenant that the waram rate has been converted. The tenants rely upon a series of rent receipts Exs. B to B (12) bearing testimony of payment of rent in money, but these receipts, however, do not establish that the rents paid were at a uniform rate. There is no doubt the evidence of some of the plaintiff''s witnesses who state about the payment of cash rent in lieu of produce rent. The principle applicable on the analogy of lost grant principle, to a case in which there has been long payment of rent in cash at a uniform rate is not applicable to the facts of this case in view of the findings arrived at by the lower appellate Court. As laid down in P. Varada Reddi and Others Vs. Srinivasa Mudaliar, evidence of money payment for several years at varying rates under specific contracts in terms of pattas for a stated period, does not warrant the inference that the waram system was permanently given up.

Mr. Ratho appearing for the appellant promised to supply translations of the rent receipts so that we could be in a position to see if the rates mentioned there were uniform. He-has not done so, and, according to the lower appellate Court, it is also not possible to come to a conclusion that the cash rental paid was at varying rates. Under the circumstances, the matter requires consideration. If it is found that uniform rates of rent in cash have been paid for a large number of years continuously not as temporary lapses of the waram system by agreements entered into from time to time by varying rates, the presumption of conversion of waram into cash system will no doubt arise in favour of the tenure of the holding. Under the circumstances, I think, the learned lower appellate Court''s order directing a remand of the suit is correct. As laid down in Vabalareddi Mallaya and Others Vs. Nayana Gajapathiraju Manya Sultan Bahadur, Trustee of Viziangaram Estate, where in a suit for recovery of rent the tenant disputes the amount claimed the Collector can determine what the proper rate is. I would, therefore, uphold the order of remand, and direct the trial Court to, first of all, determine if money rent has been paid continuously for a number of years on uniform rates; then there will be a presumption of conversion of waram into cash rent by specific agreement, failing that it will be proper for the trial Court to determine what is fair and equitable rate to be paid in respect of the holding.

In the result, S.A. No. 5 of 1941 is allowed and the judgment of the lower appellate Court is set aside and that of the trial Court restored. S.A. No. 25/45 is dismissed with costs.

Meredith, J.

I agree.