Raja Parthasarathi Appa Row vs Chevendea China Sundara Ramayya

For reasons stated in kavipurapu Rama Rao v. Birisavalli Narasayya ILR Mad. 417 it must be held that the fact that the patta tendered was a

varam patta was no objection to a suit being sustained under the Rent Recovery Act by the landlord even if it be found that the proper rates were

only money rates nor can we agree with the lower Appellate Court that it is open to Courts to imply from the mere circumstance that rent has been

paid in money for a series of years but at varying rates an agreement to pay money rent (at reasonable rates to be determined by the Courts). As

to the express contract stated to have been entered into in fasli 1299 we think we should notwithstanding some of the reasons assigned for the

conclusion of the District Judge being unsatisfactory, accept his finding that no such contract has been established. On the question of the implied

contract to pay a fixed rent of Rs. 5 per acre it is clear that the District Judge has proceeded on entirely wrong grounds and his finding, such as it

is, cannot be accepted and must be set aside. The matter is dealt with quite shortly in paragraph 12 of the judgment. The first ground stated is ""now

in the first place the payment of a fixed money rate for nine years does not prove a contract that the rate was agreed upon as the permanent rate.

Whether from such payment a contract to pay is to be implied or not depends upon the facts of each case. In certain circumstances such payment

may be quite sufficient to prove such a contract, in others it may not be sufficient. Whether, having regard to the circumstances of the present ease

an implied contract should be taken to have been established is a point to which the Judge has not addressed himself as nothing more is added by

him to the general proposition stated in the passage quoted above. The next ground taken by the Judge is when from the past history it is evident

that rents were fluctuating the mere fact that Rs. 5 was the rate for nine years does not raise any presumption that it is a permanent rate."" The

question for determination was having regard to what transpired in fasli 1299 when the uniform rent of Rs. 5 in respect of the whole of the lands in

the village was agreed to instead of the different rates for different lands that obtained before and having regard to the fact that from that time for

nine years continuously that rate was paid whether that rate should be taken as impliedly assented to as the rate to be paid in future and this was a

question to be determined upon the evidence adduced and to which reference is made at length under the issue of express contract in the Judge''s

judgment. There was no question of presumption and the circumstance that prior to fasly 1299 rent was paid at fluctuating rates and sometimes in

kind and sometimes in money was quite immaterial with reference to the determination of the said question of implied contract. As to the third and

last ground stated by the Judge "" again the Defendants having failed to prove the express contract that Rs. 5 was agreed upon as the permanent

rate cannot be allowed to put forward the plea of an implied contract to the same effect, it is difficult to understand why Defendants were so

precluded. These being all the reasons given for holding that there was no implied contract the finding must be treated as unwarranted by law.

On behalf of the Respondents here before us it was contended with reference to those eases in which the suits were decreed in the Court of

First Instance that certain of the Defendant''s contention having been disallowed the District Judge was wrong in refusing to entertain the

memoranda of objections filed in respect thereof. Caspersz v. Kishori Lal Roy Chowdhri I.L.R.Cal 922 is a clear authority against the contention

that as a matter of general law and apart from any specific statutory provision, the District Judge should have entertained the memoranda. We

agree with the vakil for the Appellant that having regard to Section 76 of the Rent Recovery Act no memorandum of objections lay even with

reference to Section 561 of the CPC for assuming a judgment of a Collector under the Rent Recovery Act to be a decree within the meaning of

that term in the CPC effect must with reference to Section 4 paragraph 2 of the Code be given to the provisions of Section 76 as a provision laying

down a special procedure in suits between landholders and their tenants notwithstanding anything to the contrary in the Code itself. Section 76

provides that in proceedings under the Act no judgment of a Collector and no order passed by him after decree and relating to execution thereof

shall be open to revision otherwise than by appeal to the Zilla Court except as allowed in Section 58. To allow a memorandum of objections in the

circumstances relied on by the Respondents would virtually involve a revision otherwise than by an appeal preferred in accordance with the

provisions of the Rent Recovery Act. Now as an appeal has to be presented under that Act within thirty days if a memorandum of objections were

allowed u/s 561, CPC that would of course be in effect allowing a revision with reference to an application made after the thirty days prescribed

since all that Section 561 requires is that the memorandum should be filed in the Appellate Court within one month from the date of the service on

the party filing it or his pleader u/s 553, Code of Civil Procedure, of notice of the day fixed for hearing the appeal or within such further time as the

Appellate Court may see fit to allow. In this view it is unnecessary for us to consider the decisions of this Court holding that a judgment of a

Collector in a suit under the Rent Recovery Act, Section 10, is a decree within the meaning of the definition of that term in the CPC or the

decisions quoted on behalf of the Appellants apparently militating against that view.

With reference to certain terms of the pattas objected to the objections as pressed before us in the argument relate to Clauses 5, 7 and 9 of the

patta. Clause 5 requires the tenant to be responsible for theft of crops by him or his servants. This could not in any sense be taken to be a proper

term of the terms of a tenancy under the Act, considering more especially Section 83 of the Rent Recovery Act which provides for cases of

clandestine removal of crops. We agree therefore with the Court of First Instance that this clause should be struck out. The present patta

introduces for the first time an alteration in Clause 7 which is unnecessary. ""We direct that in lieu thereof the following be inserted, ""as the right to

the palmyras and babul trees standing on the said lands belong to ourselves you have no concern with them and should not fell them;"" and in lieu of

Clause 9 of the patta, ""you should not make permanent encroachments or other works of any kind on the said land without our permission, you

should not without obtaining cowle from us cultivate the land that is not included in this patta.

Before, however we dispose of the cases finally, we must call upon the District Judge for a finding upon the evidence on record with reference

to the question of implied contract to pay at the rate of Rs. 5 per acre with reference to the observations made above respecting the matter.