Srinivasa Aiyangar, J. — The question of law for determination in these second appeals is one not entirely free from difficulty and is also likely to arise frequently.

The plaintiffs instituted the suits from which these second appeals have arisen as dharmakarthas of Sri Venkateswaraswami temple in Kadapperi Village in Chingleput District, to which temple the village had been granted as shrotriyam. The suits were instituted in the Court of the Deputy Collector of Chingleput Division under Sect. 56 of the Madras Estates Land Act for the acceptance by the defendant ryots in the said village of an amended patta and the execution by them of a corresponding muchilika.

The chief matter relating to the amendment and the main dispute between the parties was in reference to Cl. (2) in the patta tendered for acceptance. That clause runs in the translation as follows:

“Since for raising second or third crops on the single crop nanja land among the lands referred to in paragraph 1, and for raising first, second or third crops on the poramboke varappathu nanja lands, they have to be irrigated with the Madurantakam tank water, and since the Government charge the Shrotriem office, water-cess at the rate of Rs. 4 per acre for the first crop, Rs. 2 for the second crop and Rs. 2 for the third crop, you shall pay the amount of that water-cess together with merai, road-cess, etc.”

It was admitted by Mr. Alladi Krishnaswami Aiyar for the appellants that the clause as translated is not very accurate, and it was also conceded that the liability to pay the water-cess at the rate specified in the clause should be made distinctly to arise, only, if firstly the tenant should use the water of the Government tank of Madurantakam for the purpose of raising nanja crop on land which is not entitled to such water or for raising second and third crops on land which is not entitled to supply of water free for such second and third crops, and secondly if the landlord should have to pay the Government such amounts for the use of water as aforesaid by the tenant.

The question then is whether the claim of the plaintiffs that the defendant-tenant is liable to make such payment conditioned as aforesaid is sustainable in law. To begin with, it may be observed that no objection has been taken or could indeed be taken for the insertion of such a clause in the patta if the decision should turn out to be that there is such a liability on the tenant. The learned Sub-Collector, so far as this question was concerned, disallowed the clause on the ground that the claim of the plaintiffs-landlords for payment of the cess in addition amounted to an enhancement of rent within the meaning of Sect. 24 of the said Act and that therefore the suit not having been instituted under Sect. 30 for such enhancement the claim was not sustainable.

On appeal by the plaintiff the learned District Judge took the same view and confirmed the decree of the Court of First Instance. The point for determination and indeed the only point that has been argued before us, thus resolves itself into a very short compass, whether the claim of the landlord for the payment of these amounts constitutes an enhancement of rent. The question has really to be decided only on the language of two or three sections of the Act. The difficulty I have already referred to incoming to a conclusion with regard to this question has not been decreased by the manner in which the question has been discussed by some learned Judges of this Court in the decisions to which we have been referred.

Altogether apart from the sections of the Act and on principle and the reason of the thing, it may be stated that if the tenant uses Government water in excess of the mamool and for that the Government makes the landlord pay a certain amount in excess, the landlord should undoubtedly be entitled in law to recover the same from the tenant without considering any question of the precise procedure to be followed. The result of holding in such a case as this that the landlord has no right to levy such amount from the tenant would be that in respect of land for which he recovers from the tenant a sum of Rs. 2-10-0 per acre he would have to pay to the Government in addition to the peshkash Rs. 8 per acre. This undoubtedly would be seen to be very inequitable and almost monstrous: But no doubt if, on a consideration of the question, that should happen to be the inevitable result, it cannot be helped. The question is therefore whether that is the necessary conclusion to be drawn on a consideration of the language employed in the statute. Before I proceed further, it may be as well to point out that though the plaintiff's claim in respect of the matter has been rejected, because his proper remedy is to sue for enhancement of rent under Sect. 30 of the Act, on an examination of the various clauses of that section, it turns out that he could not, even if he were so disposed, file such a suit under that section in respect of the present matter. A claim for enhancement under that section may be made under Cl. (1) if the average local prices had risen; under Cl. (2), if the productive powers of the holding should be increased by any improvements effected by or at the expense of the landlord; under Cl. (3), if a work of irrigation or other improvement has been executed at the expense of the Government and the landlord has been lawfully required to pay in respect of the holding an additional revenue or rate to Government in consequence thereof; and under Cl. (4) if the productive powers of the land held by the ryot have been increased by fluvial action.

The only clause under which such a clause by the landlord as in this case, may be regarded as possibly falling is Cl. (3). On a careful consideration of that clause, however, I have no doubt that the present claim of the plaintiffs cannot be regarded as falling under that clause. The necessary condition for the application of that clause is as stated:

“that a work of irrigation or other improvement has been executed at the expense of Government”

and it is in consequence thereof that the Government has required the landlord to pay the additional revenue or rate. There has been not even a suggestion in this case of a work of irrigation or other improvement having been executed at the expense of Government. The Madurantakam tank is conceded to be an old tank and the demand against the landlord by the Government is not on the ground of any new irrigation work or improvement.

I may also observe that the tense of the verb used in the clause is the present perfect tense, namely, “has been executed” and refers indubitably to some work recently undertaken and finished the demand of the Government being in consequence thereof.

It therefore follows, even if the landlord in this case should have chosen to proceed under Sect. 30 of the Act, that section would not be applicable and he would not be entitled to a decree for enhancement of rent. But no doubt merely because a landlord has no remedy under the Act as framed, whether such a state of things is due to deliberate choice or mere oversight on the part of the legislature, it cannot follow that his present claim however just and equitable, can be sustained if forbidden by the provisions of the Act.

The question for solution then is whether such is the necessary result of a consideration of the language of the enactment.

The entire difficuly in this case may be said to have arisen by the manner in which the legislature has in that enactment deemed fit to define the expression “rent” in Cl. (11) of Sect. 3. The definition so far as is material is as follows:—“rent” means whatever is lawfully payable in money or in kind or in both to a landholder for use or occupation of land in his estate for the purpose of agriculture and includes whatever is payable on account of the use and enjoyment of water supplied or taken for cultivation of land where the charge for such water has not been consolidated with the rent payable for the land.

So far as the first portion of the clause is concerned where “rent” is said to mean whatever is payable for the use or occupation of the land for the purpose of agriculture there is no difficulty. But the clause proceeds to include in that expression whatever is payable on account of the use and enjoyment Of water supplied or taken for cultivation of land where the charge for such water has not been consolidated with the rent payable for the land. Looking at the definition as a whole it would thus be seen that in defining the expression “rent” the very expression rent has again been used in the definition. The inaccurate and the inartistic nature of the definition must be apparent on this alone. However inaccurate or inartistic the definition may be regarded to be, taking the definition alone, it is clear that the expression “rent” is declared to include whatever is payable on account of the use and enjoyment of water supplied or taken for cultivation of land where the charge for such water has not been consolidated with the rent payable for the land. The general principle of law undoubtedly is that wherever in the course of an enactment, in any section of any enactment, a term or expression defined by the enactment occurs, the section should be construed as if at the very place in the section instead of the word so defined the definition itself had been substituted. Under Sect. 24 of the Act the landlord is forbidden to enhance the rent except as provided in the Act. Sect. 30 is the only general section that provides for cases of enhancement; and therefore the result would seem to be that unless a case falls within one of the clauses of Sect. 30, there can be no enhancement of rent by the landlord. And if water taken from the Madurantakam tank albieit belonging to the Government, is to be regarded as water supplied or taken for cultivation of land by the tenant, then the claim in respect thereof must be regarded as rent and a claim for it must be regarded also as enhancement of rent.

The net result of these considerations would be that a landlord in that position could not possibly recover the amount sued for at all, apart altogether from any question of procedure.

To begin with, I may state that I refuse to believe that such could have been the intention of the legislature and unless I should feel compelled to arrive at such conclusion by insurmountable difficulties of construction, I should be disposed to hold that such an untoward and unjust result cannot be regarded as being within the scope, scheme or intention of the Estates Land Act. At this stage of the discussion it may be useful to refer” to the case-law on the point.

In the case of The Rajah of Venkatagiri v. Vudutha Subbarayudu, Benson and Wallis, JJ., held in exactly similar circumstances that the landlord would be entitled to recover the amount paid by him to the Government for excess of the water taken by the tenant under Sect. 70 of the Indian Contract Act. There is no reference in that case to the provisions of the Rent Recovery Act. The decision in this case therefore should be regarded merely as proceeding on the legal right of the landlord to recover the amount from the tenant in such circumstances, and it therefore follows that unless there is a clear provision of some law since enacted by which the landlord could be deemed to have been deprived of this right, there can be no question of the liability of the tenant apart from the question of the procedure.

Following the above case, in the case of Surya Row v. Seetharamayya Abur Rahim and Ayling, JJ., held that where the land is not mamool wet, the Zamindar is entitled to recover from the tenant the water-cess he was bound to pay under Act VII of 1865 to the Government. The learned Judges also held that such a claim did not involve any dispute as regards the rate of rent and the claim did not amount to enhancement of rent though under Sect. 11 of the old statute, the Rent Recovery Act.

In the case of Appanna v. Rajah Venkataramalinganna Bahadur(3) Seshagiri Aiyar and Kumaraswami Sastriar, JJ. held that the Zamindar is entitled to the water rate paid by him to the Government for water taken by the tenant. The learned Judges also held distinctly that though such a claim would fall under the definition of rent in Cl. (11) of Sect. 3 of the Estates Land Act, there was no question of enhancement of rent in such a case. It is true that the judgment of the learned Judges in this case is not as clear or explicit as might be desired and is also open to criticism which my learned brother in the course of the discussion in this appeal was inclined to make against it that the grounds on which the learned Judges came to hold that it was not an enhancement do not appear. But at the same time it is undoubtedly a distinct and direct authority on the point, and if indeed I were disposed to differ from the conclusion arrived at by the learned Judges, I should have, feeling bound by that decision, deemed it necessary to refer the consideration of the point to a Full Bench. For reasons however which I shall set out in the sequence I have arrived at the same conclusion as the learned Judges in that case and do not therefore find it necessary to make any such reference. This last case was referred to and followed with approval in the case of Venkatachalam Chetty v. Aiyamperumal Teven. Mr. Justice Phillips who delivered the judgment of the Court in that case has expressly held that though a claim for water taken by the tenant may be rent within Cl. (11) of Sect. 3 of the Estates Land Act, it is not for that reason alone an enhancement of rent.

Again in the case of The Midnapore Zemindary Company, Ltd. v. Muthappudayan, Sadasiva Aiyar and Spencer, JJ., held that the landlord is prima facie entitled to claim extra rent for second crop of paddy raised with landlord's water and the landlord's claim was not refused on the ground that the claim constituted an enhancement of rent under the Estates Land Act, The learned Judges there referred to all the earlier cases in which the same principle was recognized and applied.

It thus follows that so far as the direct authority of the previous decisions of this Court goes, it is entirely in favour of the contentions now put forward on behalf of the appellants, and it now remains for me only to refer briefly to and set out the grounds on which I have, apart from authority, arrived at the same conclusion.

The expression “enhancement of rent” in ordinary English parlance may apply to two different things; firstly, to any increase in the amount payable by the tenant to the landlord in relation to the holding and secondly to a larger amount being required to be paid by the tenant to the landlord in respect of the very things that a tenant has been previously enjoying and without any further advantages. Logically speaking, it is only the latter that can be regarded as constituting a real enhancement of rent. If in the place of half a dozen rooms in a flat the tenant comes to occupy two more rooms and the rent is proportionately increased, it cannot, properly speaking, be called an enhancement of rent; similarly, if the rent of the tenant should be increased let us say for electric lights installed in the house by the landlord.

Now taking Sect. 30 of the Estates Land Act it is clear that Cls. (2), (3) and (4) in that section cannot properly be regarded as cases of enhancement of rent within the stricter meaning of that expression and it is only, if at all, a case provided in Cl. (1) that can be regarded as a case of real enhancement. But even there it may cease to be regarded as such, if the real rent payable by the tenant to the landlord should be taken to be a share of the crops and the money rent agreed to, should be regarded merely as a commutation in money. But the legislature has spoken of all the cases as cases of enhancement of rent, and therefore we must take it that the sense in which the expression “enhancement of rent” has been used in Sect. 30 of the Act is the wider one. Then when we come to Sect. 24 and find a provision that the rent of a ryot shall not be enhanced except as provided by this Act, the question comes to take the form whether the enhancement of rent within the meaning of that section would include a claim of the kind made in this case. Thus we go back to the definition of rent in Cl. (11) of Sect. 3.

It seems to me that the matter can be regarded in two ways: firstly, that when the latter part of the definition clause speaks of whatever is payable on account of the use and enjoyment of water such water is referred to be water supplied or taken for cultivation of land. The words “supplied” and “taken” appear in juxtaposition and must be construed as so appearing. Having regard to the context which is the amount payable by the tenant to the landholder for the use or occupation of the land, the water which is referred to as water supplied or taken can only refer to water belonging to the landholder and supplied by him to the tenant for purposes of cultivation or else taken by the tenant whether with or without the consent or knowledge of the landlord. It is impossible to construe the definition of rent as referring to anything except the relation between the landlord and tenant as such, and so construed it is clear that the water the payment for which is said to be included in the expression “rent” must be regarded only as water of the landholder used and enjoyed by the tenant. If it were not so, we must regard the legislature as having sought to legislate not only for determining matters between the landlord and tenant but also with respect to other matters, such as the contingency of the tenant using water of the Government in excess of his right as in this case. If such had been the intention of the legislature, there is no reason why in a section like Sect. 30 a provision was not included for enhancement of rent in such cases. Such a claim is obviously just and equitable and there is no reason why if the legislature regarded such claim as enhancement of rent it came to exclude it from the purview of Sect. 30. The conclusion therefore would be sound and reasonable that the legislature did not make any such provision in Sect. 30, because it did not construe any such amount as rent within the meaning of the definition. If therefore what is payable on account of water becomes rent only when wate is that of the landholder, it follows necessarily that when the water used or enjoyed by the tenant is the water of the tenan himself or of some third party or even of the Government it may not be regarded as rent. Mr. Alladi Krishnaswami Aiyar for the appellants argued that, having regard to the usual provision in at enactments of definition, that the definitions given are to be taker only unless there is something repugnant in the subject or context we should construe Sect. 24 and other sections of the Act as though there was something repugnant in the subject or context with regard to the claim in such cases being regarded as rent but such a contention cannot be accepted, and to my mind is unnecessary The learned counsel for the respondent, Mr. Desikachari argued that in the present case it must be held that the charge made by the Government for the water had been consolidated with the rent payable by the tenant to the landlord, m the language of the last part of the definition of rent in the Act.

I have some difficulty in seeing the relevancy and object of such an argument. If by that contention it was sought to take the claim from out of the definition of rent then it cannot help the respondent. If on the other hand it is sought to make out that the claim itself is not sustainable for other reasons we have nothing to do with it at the present stage. That would only be on the merits of the question. Both the lower Courts in this case have concurred in dismissing the plaintiff's action on the preliminary ground that the claim amounts to enhancement of rent and that therefore it is not sustainable as the action is not one for enhancement as provided in the Act.

In the view I have taken it is not difficult to explain how many learned Judges of this Court came to give expression to the view, even without any elaborate discussion, that a claim of the kind could not possibly be regarded as constituting an enhancemen of rent.

Curgenven, J.—The appellants, who are Shrotriyamdars of Kadapperi, Madurantakam Taluk, brought a number of suits under Sect. 56 of the Madras Estates Land Act I of 1908, to enforce acceptance of pattas. These second appeals are against concurren Judgments of dismissal passed, respectively, by the Sub-Collector of Chingleput and, on appeal, by the District Judge of Chingleput.

The question which arises for our decision is whether the stipulation contained in paragraph 2 of the tendered patta (Ex. B constitutes an enhancement of rent; because if it constitutes at enhancement the landholder can only enforce it, if at all, by a suit under Sect. 30 of the Act. The ryots in occupation of the suit lands have admittedly been cultivating them for an unspecified number of years with wet crops irrigated with water from the Madurantakam tank, which is a Government source. Previously no water-cess was levied in respect of this irrigation, but some years ago the Government located the mamool wet, and, finding these lands to be not included in it began to collect water-cess from the landholder at the rate of Rs. 4 for first crops, Rs. 2 for the second crop and Rs. 2 for the third crop. The landholder now seeks, under the terms of these tendered pattas, to recover corresponding charges from the defendant ryots.

Mr. A. Krishnaswami Aiyar for the appellant, concedes that a charge for water, when made, as here, by a landholder in addition to the ordinary dry rent, is “rent” within the definition of that term contained in Sect. 3 (11) of the Act, because it is something “payable on account of the use and enjoyment of water supplied or taken for cultivation of land.” He contends however that it is not “rent”, nor, if “rent” is it an “enhancement”, within the meaning of Sect. 30. It is not “rent” he says, because the section opens with the words “where for any land in his holding a ryot pays a money-rent …”, which limit the meaning of “rent” to its ordinary sense, that is, to quote again from the definition given in the Act, something payable to a landholder “for the use or occuption of land in his estate for the purpose of agriculture. “I do not think that the words” for any land” in Sect. 30 mean anything more than “in respect of any land” and it may reasonably be said that the ryot pays water-cess ‘in respect of his land’ in the sense that it is due for water used upon his holding. But any weight which this argument might otherwise carry it loses when wa consider the terms of ground No. (iii) of Sect. 30 upon which a suit for enhancement may be brought. It is thereby provided that if the Government execute a work of irrigation and the landholder has in consequence been required to pay in respect of a holding an additional revenue or rate, he may sue to enhance his ryots' rent; and this is clearly an instance where the enhancement would take the form of an added water-cess. To hold therefore that water-cess is not ‘rent’ within the meaning of the section would entail the consequence that ground No. (iii) is in fact no valid ground at all.

We have then to consider whether the addition of such a charge is an ‘enhancement.’ The argument addressed to us proceeds upon the assumption that that term is only applicable where the rate of rent is increased without any corresponding increase in the profit or productivity of the land. Some support for this view is obtained from Appanna v. Raja Venkataramalinganna Bahadur where the learned Judges say:

“we do not think that an extra payment due for additional advantage is necessarily an enhancement … We do not think that Cls. (2), (3) and (4) of Sect. 30 have any application. They contemplate the continuance of the old state of affairs and yet a claim is made for increased rent without offering any fresh advantage.”

I find myself unable to reconcile this observation with the terms of the clauses themselves, because it seems to me that each contemplates an increase in the productivity of the land, No. (ii) by reason of an improvement effected by or at the expense of the landholder, No. (iii) by reason of irrigation from a Government source, and No. (iv) by reason of fluvial action. I must conclude accordingly, upon a construction of the section, that an increase in the rate of rent occasioned by an increase in productivity is an “enhancement” and can only be enforced by suit.

It remains for consideration whether this view, based solely upon the terms of the Act, is discountenanced by any decided cases. It follows from the line of argument I have employed that cases decided under Madras Act VIII of 1865 do not necessarily afford any assistance. In Kottasawmy v. Sandama Naik, however, where a Zamindar sued to compel his tenants to accept a patta at an increased rate of rent, on the ground that he had by repairing a tank rendered a dry land cultivable with a wet crop, it was held that it constituted an enhancement which under Cl. (4) of Sect. 11 of the Act required the Collector's sanction. This case at least furnishes some authority for the meaning of “enhancement” which I have sought to gather from the terms of the present Act. The decision went the other way in Vaythenatha Sastriral v. Sami Pandither apparently on the ground that there had not been any money assessment fixed upon the field. This case was followed in Thayammal v. Muttia(4) and again in Venkata Rao v. Vaithilinga Udayan(5). Both were cases of the use by the ryot of the Zamindar's water for irrigating his dry land and I imagine that if the learned Judges had been dealing with the terms of Sect. 30 of the present Act they would have decided them differently. There are the two cases in which the landholder sued, not in the Revenue Court for acceptance of patta, but in the Civil Court to recover from the tenant the amount of water-cess levied from him by the Government. The Rajah of Venkatagiri v. Vudutha Subbarayudu(6) and Surya Row v. V. Seetharamayya(7). These cases were decided under Sect. 70 of the Contact Act, and as pointed out in the latter of them no dispute as to the rate of rent was involve. In Batchu Ranu v. Raja Rao it was taken to be settled law that

“if the Zemindar wants to enhance the rent in consequence of any increase in the produce by water supplied from any Government ‘source, he must previously obtain the sanction of the Collector under the Rent Recovery Act,”

a proposition which, if true then, has assuredly not become untrue by the enactment of Madras Act, I of 1908.

I have passed these cases in brief review because the only difficulty which, in my view, arises in this case is caused by two decisions dating from after the introduction of the Midnapore Zamindary Co. Ltd. v. Muthappudayan were cases in which the landlord claimed to charge an additional rate for wet cultivation Carried out with the use of his own water. In the former the suits were for rent, and it was contended that the charge was illegal, being an enhancement of rent. The learned Judge who delivered the judgment of the Bench held, on the authority of Thayammal v. Muttia, Venkata Rao v. Vaithilinga Udayan and Appanna v. Raja Venkataramalinganna Bahadur that a charge for water taken by the tenant is not enhancement of rent, adding, “no doubt under Sect. 3 (11)” of the Estates Land Act such charge, even if not consolidated with the rent, will come within the definition of “rent.” But for that reason alone it is not necessary to hold that the charge for water in excess of the prior dry rent is an enhancement of rent. This is no doubt true: but if we go on to consider “the language of Sect. 30 I am unable to resist the conclusion that any such addition to the rent is an enhancement within its meaning. If it be not so, why then is it an enhancement when the landholder makes an additional charge, as he may under C1. (iii) of that section in respect of dry land converted into wet by virtue of an irrigation work effected at his expense. The decision in The Midnapore Zemmdary Company, Ltd. v. Muthappudayan again, is based upon three cases decided before the present Act came into force, and the precise terms of that Act, according to which the point must be settled, do not seem to have been brought to the attention of the learned Judges. In view of these terms, I must respectfully adhere to the opinion that Cl. (2) in the tendered patta would, if put into effect, occasion an enhancement of the rent.

I do not think that this conclusion is in any way affected by two special considerations, (1) that the supply of water, from being unauthorized, will become authorised, and (2) that the additional charges payable may be conditional upon use of the water for the several crops. As to (1) we do not know enough of the circumstances to say that the water was previously, so to say, taken by stealth, and the fact remains that the ryot was getting gratis water that he is now charged for. As to (2), a conditional enhancement is still an enhancement, and it is probable that the defendants in these cases have practically no alternative but to use the water for their crops and, if the plaintiffs succeed in enforcing their claim, to pay the cesses for it. Mr. Krishnaswami Aiyar further objects that Sect. 30 makes no provision for enhancing the rent in such circumstances as the present, so that his clients, while compelled to pay the charges for water levied by the Government, will be unable to recover them from the ryots. I am not clear that Cl. (3) of Sect. 30 will not apply to such a case. But I desire not to express any opinion upon that question, as I do not myself think that it ought to influence the decision upon the matter in issue, and lead us to say rather what should be in the Act than what is in it, where, in my view, there is no ambiguity. If considerations of this nature are to weigh, let it be remembered that to hold that a charge for water, made in the circumstances of this case, is not an enhancement of rent is to deprive the ryot of the protection of the Act in this respect; and it is not clear to me that, freed from this restraint, the landholder could not fix his own price for the water so supplied.

By the Court: — In view of the difference of opinion between ourselves with regard to the question of law in these second appeals and having regard to the importance of the question, the likelihood of its arising in exactly the same form fairly frequently and also to the decisions of some learned Judges of this Court referred to in our judgments, we are of the opinion that it is necessary and desirable that the following question should be referred to a Full Bench for its opinion:—

“Whether, when a ryot uses, for the cultivation of a land in his holding, water from a Government tank and for the use of such water so taken the Government recovers an amount as and by way of water cess from the landholder, the claim of the landholder to recover such amount from the ryot is a claim for an enhancement of rent within the meaning of Sect. 24 of the Madras Estates Land Act,”

[These second appeals came on for final hearing on 14th December, 1927 before a Full Bench constituted as above.]

OPINION

Ramesam, J.—The facts of these second appeals are as follows: The plaintiffs are Dharmakarthas of Sri Venkateswaraswami Temple in Kadaperi Village in Chingleput District, to which temple the suit village belongs as shrotriem. There is no question in the case that the shrotriem is not an estate. The litigation has proceeded on the footing that it is an estate. The suits were brought by the plaintiffs under Sect. 56 of the Estates Land Act for the acceptance of pattas and the execution of corresponding muchilikas. The pattas contain a new clause as compared with the former pattas. The additional clause runs thus:

“Since for raising second or third crops on the single crop nanja land among the lands referred to in paragraph 1, and for raising first, second or third crops on the poramboke Varappathu nanja lands, they have to be irrigated with the Madurantakam tank water and since the Government charge the shrotriem office, water cess at the rate of Rs. 4 per acre for the first crop, Rs. 2 for the second crop and Rs. 2 for the third crop you shall pay the amount of that water cess together with merai, road-cess, etc.”

The necessity for the insertion of this new clause in the suit pattas tendered for fasli 1331 arose thus:—The suit lands have been irrigated for a long time by the water of the Madurantakam tank which is a source belonging to Government. In Srinivasa Aiyangar, J's referring judgment it is said:

“There has been not even a suggestion in this case of a work of irrigation or other improvement having been executed at the expense of Government. The Madurantakam tank is conceded to be an old tank.”

But my brother Jackson, J., observed in the course of the argument that the tank was built by a Collector named Mr. Plaice. We must take it therefore that this was a work executed at the cost of the Government, but the Government charged no water rate up to fasli 1331. In or about that year the Government carried on a mamul wet survey, that is a survey for the purpose of determining how much of the lands of suit village were entitled to water from the Government source free of water rate and if it is found that some lands are not entitled to water free of charge to take steps to impose water cess under the Irrigation Cess Act, VII of 1865. The lands found to be entitled to water free of charge were presumably entitled to be so with reference to the engagement in the inam title deed. The result of the survey was that some of the lands in the village were found entitled to water right but others were not. In the case of those others the Government imposed water cess at the rate of Rs. 4 for the first crop, Rs. 2 for the second crop and Rs, 2 for the third crop, and collected the amount from the landholders the plaintiffs. The object of the new clause is to make the tenants liable to pay the amount of water cess so collected from the landholders. It is not clear from the facts of the case in any of the judgments whether the mamul wet lands are localized; if they are not localized, there is some difficulty in the way of the landholders which it is unnecessary to discuss. But probably they are; at any rate, the case has proceeded on that footing. If they are localized, it is obvious that the landholder is entitled, if not to the whole, at least to a reasonable proportion of the new burden which has fallen on the land, and it is for the purpose of providing for some contribution by the tenants towards this burden that this clause is now inserted. The point referred to us is whether this therefore amounts to enhancement of rent within the meaning of Sect. 24 of the Act, but incidentally, the question arises, whether this adjustment on account of the imposition by the Government of water cess cannot be made by way of amendment of a clause in the patta, but should be made by an application to the Collector under Sect. 30 of the Act for a reasonable enhancement of the rent. It is argued that these tenants' holdings are like the holdings of mamul wet tenants in the villages. Both contracted to pay the same rates from the beginning and if these tenants are made to pay more, it amounts to an enhancement of rent. But this argument involves a fallacy. The assumption with which it starts, namely, that these tenants' holding are like the holdings of the mamul wet tenants, is not true. Such an impression has not doubt been created by the fact that for a number of years the Government allowed ail the tenants to use the water of the tank indiscriminately and woke up to the need for a mamul survey only recently. But this is merely an accident. If the mamul survey has been made immediately after the tank was constructed, those holdings which are entitled to water free of charge would have so got them. But the others would not have got water without payment; so that though the nature of the land, the soil, crops and everything else may be similar, in respect of this matter they are not similar and the suit lands would have had to bear the burden of water cess from the beginning. Whether all of it would have fallen on the tenant or not, or a reasonable distribution would have to be made, is another matter. That some portion at least of this should be borne by the tenant also there cannot be the smallest doubt. If the construction of the tank was followed immediately by mamul survey and rents were fixed, the rents imposed upon the tenants would have included some proportion of such water cess collected from the landholder by Government, unless the water cess is directly paid to Government by tenants. The fact that it took some time for the legal rights of the holdings to be determined and that they are determined now can make no change. It only shows that the landholder and the tenants contracted under a mutual mistake as to the nature of the land and under that mutual mistake they acted all these years. But on the discovery of the mistake, the proper rent in respect of the land is as I have indicated above. Thus, however much one may be inclined to say that such payment to the landholder to reimburse him in respect of the water cess paid by him to Government is rent within the meaning of the definition of rent in the Act, it is certainly not an enhancement of rent within the meaning of Sects. 30 and 24. The rate of rent which I have described above is the proper rate of rent to be borne by the holdings from the time when the tank was constructed and the lands were cultivated as wet lands. In this respect I am unable to distinguish the present case from the decision in Appanna v. Raja Venkataramalinganna Bahadur. I may here observe that all the decisions under the Rent Recovery Act are not useful for discussion in the present case as the machinery provided in the two Acts is somewhat different. In the case Just cited it was observed:

“We do not think that an extra payment due for additional advantage is necessarily an enhancement. Where new circumstances have come into existence which require new adjustment, there is no question of enhancement.”

I may observe that in this case there were no new circumstance or new enhancement. As I have already said, assuming that the lands were converted into wet lands soon after the tank was built and if the mamul survey had been then made, this is the rate which the lands would have been liable to pay from the very beginning. As to comparison with the rates of rent prior to the construction of the tank we have no means of such comparison because we have not got the pattas prior to that period.

The decisions in Arunachallam Chettiar v. Mangalam, Venkatachalam Chetty v. Aiyamperumal Tevan and The Midnapore Zemindary Company, Ltd. v. Muthappudayan show that the charging of additional rent when a certain contingency happens falls within the principle of Appanna v. Raja Venkataramalinganna Bahadur namely, when circumstances require new adjustment, and support the above conclusion. One observation I wish to make is that whether the view I have expressed is or is not correct, it is not an enhancement to which Sect. 30 of the Act would apply. Sect. 30 applies only to enhancements which might be regarded as permanent at the time of the application, that is, as continuously operating in the future as far as one can see until some new circumstances arise which require another enhancement or reduction, but not to cases where it is known the conditions may be constantly fluctuating.

In suoh a case there can be no permanent enhancement of rent, nor can there be a contingent decree for enhancement of rent. Such adjustment of rent to meet the fluctuating circumstances must therefore fall within the principle of Appanna v. Raja Venkataramalinganna Bahadur if at all. If it does not so fall, the result would be that the landholder would be remediless and then there would be an urgent case for the interference of the legislature because a more inequitable circumstance from the point of view of the landholder cannot exist. For it must be remembered that the tenants are not bound to apply for water for any crop or for some of the crops and even if they always apply the Government is not bound to give. So long as this uncertainty exists there is no guarantee that we have come to a permanent state of things: and so long as the uncertain condition exists, the only way to meet it is to have a clause like the one in this case.

My reply to the question referred is in the negative.

Wallace, J.—I think it essential, in this reference, to adhere strictly to the terms of the reference. The question referred presupposes that the landholder is endeavouring to surcharge on the tenant, in the name of rent,’ the exact amount of water-cess recovered from him by Government, for Government water taken by the tenant. Speaking for myself, I own to considerable doubt, which is evidently shared by one of the learned referring Judges, whether such a claim by the landholder on the tenant is a claim for ‘rent’ as defined in the Madras Estates Land Act, and there is authority for this view in The Rajah of Venkatagiri v. Vudutha Subbarayudu and Surya Row v. Seetharamayya. The landholder is a mere collection agent for Government and it is difficult to see how what does not really go into the landholder's pocket is rent. I do not regard Sect. 30 (3) as standing in the way of this view. That section will permit the landholder to enhance the rent, i.e, to increase the rate for rent which he has hitherto charged on the land as a quid pro quo for some improvement effected for the land, but that increase need not bear any necessary relation to the additional revenue which Government has imposed on the landholder. That section does not say that the rent shall be enhanced by the amount of that additional revenue. That imposition of the additional revenue is simply a necessary condition which will justify an increase of the rate of rent already being paid. Sect. 30 (3) seems to me a variant of Sect. 30 (3), i.e, the improvement executed at the expense of Government is really executed at the expense of the landholder, because Government is charging him additional revenue therefor. If the landholder's claim then, is not a claim for rent at all, it cannot be regarded as an enhancement of rent.

Assuming however that this claim is a claim for rent, I agree with my learned brother that it is not an enhancement of the existing rent, unless it is increasing the rates of rent as determined by the terms of the original contract, and that if is clear that the payment or apportionment of this new Government water charge was not present to the minds of the contracting parties at all when the rates of rent were fixed. In the case of a tenant who now uses Government water for the first time, I am satisfied that any additional charge made upon him by the landholder in consequence of a charge imposed on the landholder by Government for the use of this water would not be an enhancement of the existing rates of rent. It is an additional charge for additional facilities supplied to the land. That being so, I do not see how such a charge becomes an enhancement merely because there was an omission to charge it when the water was first taken. The original contract rights have not been interfered with or curtailed in any way. I do not wish to be understood as expressing any opinion whether the clause relating to this charge can be properly inserted in the patta or not. That is not part of the question referred to us and I prefer to express no opinion on that matter.

I answer the reference in the negative.

Jackson, J.—The question referred to us is in effect whether when a ryot takes water from a Government tank, and for the use of such water the landlord inserts in the patta an additional charge, such charge is an enhancement of rent as contemplated by the Estates Land Act.

Rent under Sect, 3 (11) of the Act includes whatever is payable on account of the use and enjoyment of water taken for cultivation of land. Therefore this charge for water would appear to be rent, and presumably the landlord would not have inserted it in his patta unless that were his opinion.

The question then remains whether such charge is an enhancement of rent. The parties had agreed that the tenant should enjoy his holding at a certain rate set forth in the patta, and when some amount is added to this sum already agreed upon, I think it can only be regarded as an enhancement of rent. It is very analogous to the enhancement mentioned under Sect. 30 (3)

“to enhance the rent on the ground that a work of irrigation has been executed at the expense of Government and the landlord has been lawfully required to pay in respect of the holding an additional revenue or rate to Government in consequence thereof.”

That the enhancement may vary from year to year or even not be imposed at all, does not to my mind, make it any less an enhancement. A proper patta should contain the full ate that may legally be imposed, though it may happen that the landlord is in some years entitled to less if certain conditions are unfulfilled. If in some year the ryot has not taken the water, the landlord may not be justified in charging for it; but when he is so justified, his charging the full rate will be tantamount to an enhancement of the lawful rent if the patta does not already contain the maximum rate as one of its possible charges. It cannot, I think, be said that the lawful rent only comprises such items as are constant, and independent of circumstance, and any additional charge made owing to increased facilities enjoyed in any one year, is no enhancement of rent. That would seem to be contrary to the intention of Sect. 30.

In The Manager to the Lessees of the Sivaganga Zamindary v. Chidambaram Chetti it was held that if the rent was enhanced according to a clause already embodied in the patta providing that additional rent would be paid for increased area, then there would be no need for the landlord to invoke the aid of Sect. 42 (1) (a) or for the Collector to settle the dispute under Sect. 42 (2).

Following that principle it was held in Appanna v. Raja Venkataramalinganna Bahadur that where new circumstances have come into existence which require new adjustments there is no question of enhancement. The idea would seem to be that if the patta already contains a proviso that if certain circumstances come into existence the rent may be newly adjusted, then such adjustment is no enhancement. But what if the patta contain no such proviso? Is it to be said, for instance, that where the patta merely contains a dry rate, the landlord may add as a proper insertion an enhancement by way of wet rate because such new adjustment is owing to new circumstances having come into existence? That interpretation appears to me to run entirely counter to Chapter III and the whole sprit of the Act. But this is the case followed in Venkatachalam Chetty v. Aiyamperumal Tevan (besides cases under the old Act of which the wording is different). The landlord was claiming as rent a charge for water taken to dry lands which had been let to the tenant on dry rates with no provision in the patta for any additional charge if water was taken. It was held that such a charge was rent within the terms of Sect. 3 (11) and that it was a charge in excess of the prior dry rent; but nevertheless it was not an enhancement. I do not follow this reasoning. It maybe, as observed lower down, a reasonable and equitable charge, but none the less it is an enhancement. Suppose that the tenant has a dry holding and the landlord, after constructing a tank, proceeds to charge additional rent because the productive powers of the land have been increased, is it to be said that this is no enhancement of the rent; and if it is no enhancement why is the landlord forced to sue in such circumstances under Chapter III of the Act? But if it be conceded that this would be an enchancement, is it not equally an enhancement if the tenant of the dry land takes water from a tank previously constructed and is charged an additional rent on that account? This is the difficulty which was present to the mind of my learned brother, Curgenven, and I confess to feeling its force. The Midanapore Zemindary Company, Ltd. v. Muthappudayan is to the effect that if the previous patta contains an implied contract that a charge for water shall be levied according to custom, the explicit statement of that contract in the patta, is no enhancement. That hardly bears upon the present question, for no such implied custom is set up.

I entirely agree that the rent of the previous pattas would have been higher if from the first it had been understood that the tenant was taking water for the use of which the Government would charge the landlord. But if, when that mistake is discovered the landlord attempts to increase the rent, it appears to me to be a clear enhancement though a justifiable enhancement. The old rate may not have been the proper rate; but the proper rate is only reached by way of enhancement.

I would therefore answer the question referred to us in the affirmative.

N. R. R.Reference answered in the negative.