This was a suit brought by a landholder against the defendant—a tenant to compel the acceptance of a patta under, section 9 of the Rant Recovery Act. The patta tendered stated that the rent as payable in kind. The lower appellate Court, having come to the conclusion that the landholder was not entitled to claim rent in kind, but only in money, dismissed the suit without determining what were the terms of a patta such as the landholder was entitled to enforce the acceptance of, the view, of the lower Court being that the expression “such a patta” in section 9 meant a patta which, with reference to the nature of the rent, was correct though its terms might be otherwise not binding on the tenant, and that when the patta tendered was incorrect, with reference to the nature of the rent the Court had no jurisdiction to amend it under section 10 and pass a decree determining what the terms of the patta should be.
The learned Pleader for the respondent sought to support the decision of the District Judge on the ground that section 10 requires the decision to he in conformity with the terms of section 11 which, he urged, should he construed as referring only to disputes occurring in respect of rent payable in money and not to cases where the rent was payable in kind. If this contention were well founded it would follow that the Act fails to provide for a decision of disputes in cases where rent is payable in kind, and as the power of the Revenue Courts is derived exclusively from the provisions of the Act, those Courts would have no power to deal with such disputes. Such a result would itself suggest serious doubts as to the soundness of the contention.
The language of section 11 however leaves no doubt upon the point. The term “rent” in the first and second paragraphs occurs without any limitation and must be understood to include rent of every description, whether payable in kind or in money. That the subsequent clauses refer to money rates would not warrant the restricted construction suggessed. As to the case relied on by the District Judge [Polu v. Ragavammal ], this was reviewed. The judgment on review was as follows:—
“The question in this case is what is the proper patta to be given by the plaintiff to the defendants. The lower Courts came to the conclusion that the facts relied on did not establish an implied contract to pay the rent alleged by the defendants.
In one part of his judgment the District Judge states that the defendants do not deny that they have been paying rents at varying rates. In another place he refers to the total amount paid as rent at different times apparently in support of the conclusion arrived at by him. The defendants contend that the variations were in consequence of the increase in the extent of the lands held by the defendants. It is not quite clear whether this was the case or whether the rates themselves were, raised or why they were raised. To establish an implied contract among other circumstances, payment of rent at a uniform rate for a number of years would have to be proved. The mere fact that the rent has been paid in money for along period is not in itself sufficient evidence of an implied contract. We must ask the Judge to find on the evidence on record whether the patta tendered is a proper one and, if not, what is the proper, patta.” This judgment was unfortunately not reported and the case therefore, having regard to the decision on review is no authority for the view adopted by the District Judge that the Court had no power to amend the patta where the rent, being payable in money only, a waram patta had been tendered. The point was however distinctly decided in Mahasingamstha Ayya v. Gopaliyan , the Court there holding that section 11 of the Rent Recovery Act applied to a case where a landholder brought a suit on a patta in which rent in kind was claimed in respect of dry land but with respect to which it was found a money rent alone was payable. We entirely agree with that decision and it follows that the decree of the District Judge dismissing the suit should be reversed and the appeal remanded for disposal. In remanding it, it is necessary ??? point out that the first question for determination is whether the express contract set up by the defendant in paragraph 3 of the written statement as having been entered into in fasli 1303, is true with reference to the course to be adopted by the District Judge in the event of his finding that the above contract is not true, it is necessary to consider the question which has been fully argued, whether upon the facts relied on it is open to the Courts to find an implied contract, the facts being that from faslis 1288 to 1308,—money rent had been paid under written khats at varying rates. The learned pleader for the respondent urged that even though these facts may imply that there is no contract to pay at any one particular rate, it is open to the Court to infer that there was an agreement that the rent was payable in money at a rate to be determinedly the Court as reasonable in the circumstances whether a contract in terms to the effect that rent is payable in money, but at a rate to be determined by the Court as reasonable would be a contract within the meaning of section 11(1) is open to question. For where there is no contract as contemplated in clause (1), the section lays down categorically the different rules to be followed by the Court in determining questions as to rent arising in this class of suits and that it is only when the other Tales are found inapplicable, rents considered just and reasonable by the Court have to be settled. Now, if the Court were to enforce the agreement to pay at a reasonable rate it would of course not be sufficient that the patta to be enforced should merely be made to say that the rent is payable at a reasonable rate. The Court must proceed to determine what that rate is to be, should it do so the Court would virtually be acting under the very last rule in section 11 and ignoring the rules which the section lays down shall be availed of, if possible, before that rule is resorted to. Assuming, however, that a contract to the effect suggested would be a valid express contract under the section; the question is whether the facts referred to would justify the Court in finding an implied contract between the parties with reference to the future. In the view hitherto adopted in this Court, to warrant the finding of an implied contract from mere past payments the circumstances should be such as to suggest an agreement to pay at some definite rate and the decision on review above referred to as well as the decisions in Venkataramayya v. Ganyanna , and the unreported cases there referred to are direct authorities in support of this statement. And certainly there would be no more warrant for inferring from mere payments at varying rates an agreement to pay at a reasonable rate than there would be for inferring an agreement to pay at some definite rate. It is thus impossible to find any implied contract from the past payments of the character relied on in the present case. In the event of the District Judge finding against the truth of the alleged contract of fasli 1303 he should proceed to determine what is a proper patta with reference to the provisions of sections 11 on the footing that there is no contract express or implied.
The costs will abide and follow the event.
In Second Appeals Nos. 459 to 504 of 1902.—These cases follow Second Appeal No. 458 of 1902 and for the like reasons as are recorded in our judgment therein the decrees of the District Judge of Kistna should be reversed and the appeal suits remanded for disposal accordingly.