1. These and other connected suits were brought under the provisions of Section 56 of the Madras Estates Land Act, 1908, by a landholder to compel his ryots to accept the pattahs tendered to them for Fasli 1318. In such suits it is the duty of the Revenue Court, under Section 57 of the Act, to determine what is a proper pattah. The proprietor claimed that a usage existed in this village to collect rents according to the amani system; in other words, that the ryots should give rents in waram which implies a division of the crop between the landholder and the ryot (vide Section 29 of the Madras Estates Land Act, 1908). To this the ryots rejoined that by a long standing custom they had been paying fixed money rents, and they denied the usage set up by the plaintiff to pay rents in kind. The question thus arose whether money rents or waram rents were the rents established by agreement or custom in this village.
2. The Deputy Collector who tried these suits found that the plaintiff had not proved that the rents contended for by him were the rents lawfully payable. He also found that the rents contended for by the defendants had not been proved to be the fixed money rents lawfully payable.
3. He then proceeded to discuss the plaintiff's contention that he had a right to revert to the amani system in the light of Act I of 1908, which he considered to have altered the law as laid down in Section 11 of the Madras Rent Recovery Act (VIII of 1865). This section provided that, if either party were dissatisfied with the rates determined by the Collector according to local usage or to rates paid for neighbouring lands, he might claim to have the rent discharged in kind according to the waram. There is no similar provision in the Madras Estates Land Act (I of 1908); but Section 27 of that Act declares:
"If a question arises as to the amount of rent payable by a ryot, or the conditions under which he holds in any revenue year, he shall be presumed, until the contrary is shown, to hold at the same rate, and under the same conditions, as in the last preceding revenue year;"
and the next section creates a presumption that the rent payable for the time being is fair and equitable, until the contrary is proved. Finally, the Deputy Collector decided that the proper rents payable for Fasli 1318 should be those decreed in the plaintiff's suit to recover rent for Fasli 1317. The District Judge on appeal agreed with the Deputy Collector's findings of fact except as to the date up to which the amani system prevailed. In his opinion, there was evidence that it prevailed up to the year 1871, whereas the Deputy Collector found that it was not in force subsequent to 1868.
4. There are five periods of management to be considered in the history of this Sillathur zemindari. The first is the period between 1855 and 1867 when the estate was under the management of Rani Ammal; the second is the period between 1868 and 1870 when the Court of Wards were in charge; and the third is the period between 1871 and 1900 when Rangasami Pannikondar was the zemindar. During the fourth period of 1900-1905, the ownership of the estate was in litigation and a Receiver appointed by the Sub-Court was managing it. The fifth and the last period dates from 1905 when the present plaintiff came into possession by purchase. Whether the amani system lasted till 1867 or till 1870 is not of much consequence, so far as the date is concerned. The important matter is whether the payments of rent in money which the tenants made from time to time were really payments in lieu of waram, and whether that system had been entirely abandoned by the parties, or was in reality underlying all their relationships up to the date of suit. The District Judge held that the arrangement to pay money rents was a purely temporary one liable to be given up at any time if the zemindar preferred to go to the trouble of collecting his waram. This is a finding of fact which is binding on this Court in second appeal. Moreover, the observation of the District Judge that the rent payable under the periodical Settlement called gadupattukkattu was a provisional arrangement, appears to be sound. It is supported by the derivation of the word, and it has been shown that the payments varied according to the crops grown on the land, as disclosed by the evidence of defendants' witness No. 12 who says,
"Every four or five years, the land is classified, the lower class being taken into the higher class and increased rentals levied. The higher class lands are never altered into the lower class."
Defendants witness No. 3 admitted that gadupattukkattu villages were those in which money rent was paid for a definite period in lieu of the waram due and Exhibit O1 shows that Kottakadu was a gadupsittukkattu village. Even the Deputy Collector found that the money rents payable were not fixed rents.
5. The District Judge also held that the Deputy Collector was wrong in basing his decision on the result of the suit for recovery of rent for Fasli 1317; and in this I think that the District Judge was clearly right. The ryots were ex parte in that suit. There was no adjudication on the question, what was a proper pattah; and in the plaint, the plaintiff reserved his right to have the question whether he was entitled to collect waram, determined in separate proceedings.
6. During the period under the Court of Ward's management (Faslis 1278 to 1280 corresponding to 1868 to 1870), the District Judge thinks that the amani system prevailed. He bases his decision on certain documents, Exhibits W, GG series, and B. An objection has been taken that Exhibit GG13 to which he refers does not relate to the village of Kottakadu, with which these appeals are concerned. From the appellants 10th ground of appeal, it appears that the appellants took no objection to the admissibility of Exhibit GG13 but endeavoured to explain its effect away. But assuming that the District Judge was guilty of clerical error in referring to this particular Exhibit, which is of the year 1869, as a lease of 1868, he would not have been wrong if he had referred to Exhibit GG13, which relates to 1868. From the extent given in this document it is probable that Kottakadu lands were included. Even if this were not the case, the document would be relevant as evidence of usage prevalent in the neighbouring parent village, and it contairs similar terms to those in Exhibit GG13.
7. It has also been urged that the last clause of Exhibits of this series which permits the landholder to appropriate the produce of the ijara lands towards the ijara arrears in accordance with the amani rules, is only a reproduction of the landholder's right to attach the crops of his tenants for default of payment of rent, as provided in Section 14 of the Act of 1865. But this does not seem to be so. There was no need to mention the amani rules in this connection.
8. It is further argued that the District Judge has misconstrued Exhibit W and that he was wrong in admitting Exhibit B as evidence that the waram rates prevailed in this period and the preceding period. Exhibit B is a takeed of 1869 which clearly refers to the difficulty in effecting a division of icaram in the parent village of Venkarai. As regards Exhibit W, it relates to Fasli 1277 and to this village of Kottakadu and it contains an estimate of the gross outturn of the crops in the holdings of different ryots; and although stress is now, laid on the absence of the evidence to prove for what purpose this document was prepared, the defendants' Vakil admitted in the lower Appellate Court that he could not suggest any other purpose besides a division of produce. The genuineness of this document is not in dispute.
9. In the end, the District Judge, as there was no reliable oral evidence as to the correct waram rates, adopted the paimash waram rates. It does not lie in the mouth of the defendants, who contended in the District Court that, if any waram rates were to be taken, paimash rates were the correct rates, to say that the District Judge was wrong in so doing. They also conceded at the bearing of the suits that the amani system prevailed at the time of the paimash (1829-1830).
10. The real contention between the parties was on the question whether money rents or grain rents were payable; and on this point the District Judge's finding being one of fact is final, unless it can be shown that it is vitiated by an error in law or by there being no evidence to support his conclusion. In this case his findings are not based merely on the construction of documents.
11. It is next contended that the lower Appellate Court was wrong in introducing into these suits, which were tried under the provisions of the Madras Estates Land Act, a provision whereby either party, dissatisfied with the rates determined according to the local usage, was at liberty under the former Act to revert to the waram rates, and it is urged that the District Judge has wrongly applied Section 26(3) of the Madras Estates Land Act, the provisions of which are prospective. This section merely provides that, if a landholder grants a lease of land at a rate lower than the lawful rate payable before the grant, his successor shall not be bound to adopt the same concession. In this respect, it is merely a repetition of the provisions of Section 11, Clause 4, of the Act of 1865, that no pattahs which have been granted by any landholder at rates lower than the rates payable upon such lands or upon neighbouring lands of similar quality and description shall be binding upon his successor, unless bona fide granted for the purpose of making permanent improvements and unless the tenant shall have conformed to the conditions upon which such lower rates were allowed. This has been the law both before and after the passing of Act I of 1908. I do not think that the District Judge meant to base the landholder's right to have waram rates of rent upon this provision only. He found in his judgment that there was no permanent arrangement to pay money rents and the only alternative, therefore, was to go back to the waram system and this is all that his decision amounts to.
12. Mr. T. Rangachariar has pressed on our attention that no foundation was laid for the District Judge's assumption that the rates prevailing in these years were low rates. Whether they were high rates or low rates, either party was at liberty to revert to their original contract or usage if it has been shown to have been merely in abeyance during the years when the rents payable from year to year were uncertain and when temporary arrangements prevailed. If the District Judge had allowed the plaintiff to exercise this option because it was the law laid down by Section 11 of Act VIII of 1865, he would have been wrong in making the repealed Act the ground of his decision, but he would have been right in principle under the circumstances of this case, because if there is a fundamental agreement between the parties it should be upheld in spite of temporary lapses sanctioned by mutual consent. This was the principle under which Oliver v. Markanda Aiyan 3 M.L.J. 263 was decided, and in that case even 70 years of agreement to pay money rents for limited periods was not considered to give rise to a necessary implication of a contract to adopt money rents for ever. A similar view was taken by the Calcutta High Court in Sohobut Ali v. Abdool Ali 3 C.W.N. 151. The period of transition in these suits was only about 40 years.
13. Mr. T. Rangachariar wished to make out a refusal on the part of the District Judge to apply Sections 27 and 28 of the Madras Estates Land Act to the circumstances of this case. These sections only provide that a presumption will arise that a ryot is bound to - pay rent at the same rate as he paid in the preceding revenue year, until the contrary is shown. When it has been shown, as in this case, that the rent paid in the preceding revenue year was fixed by an ex parte decision in which all the points upon which the parties were at variance were left open, and when there is a finding of fact that up to the present rate there has been no contract between the landholder and the ryot to pay a fixed money rent, this is equivalent to showing the contrary of the presumption referred to in those section. Vide Beni Pershad Koeri v. Raj Kumar Chowbey 17 Ind. Cas. 111 : 16 C.L.J. 124 as to the value to be attached to the prior decision.
14. If the ryots are still dissatisfied with the waram rates fixed in these suits, they have always a remedy provided in Section 40 of the Madras Estates Land Act of suing before the Collector to have their rents commuted into definite money rents. But the present suits have not been contested in such a way as to permit the equivalent of the waram rates being now determined in money. For this purpose, it would be necessary to have evidence as to the prices prevailing in the preceding ten years.
15. We dismiss the second appeal with costs. The memos, of objections are not pressed and are dismissed.
Coutts-Trotter, J.
16. As this is a matter of some little difficulty and doubtless one of great importance to the parties, I think it right to add my own reasons for our decision. There were a very large number of suits a great quantity of documents wag; produced; numerous witnesses were examined and many points were discussed in the lower Courts. The Advocates are to be commended for having focused the attention of this Court upon a single point, illustrated by only a few of the many documents exhibited.
17. These suits arose between the proprietor of the Sillattur zemindari and his ryots in the village of Kottakadu in the taluk of Pottukottai. They were brought by the landlord to compel the ryots to receive pattahs and execute muchilikas in respect of their holdings in accordance with the provisions of Chapter IV of the Madras Estates Land Act, I of 1908. The sole issue which we have to try is this: the landlord contends that his ryots must accept pattahs on the amani system, whereby the rent consists of a fixed portion of their, produce; the tenants contend that they are entitled to be assessed at a money rate of rent, and that, therefore, the pattahs tendered are bad. In the view I take of the case, it is not necessary to decide the further question as to what that money rate should be.
18. The Act is neither very clear nor very well arranged; but I think the language of Section 59 illustrates the issue which the Courts below had to determine. That section provides that rent shall be payable in instalments according to agreement or in the absence of agreement, according to established usage; and on that analogy I think the ryot must accept a pattah the general conditions of which conform to such agreement or usage. Section 27 raises a presumption that a ryot holds under the same conditions as in the previous revenue year; but that presumption would be rebutted by showing that those conditions were not in accordance with the agreement or usage prevailing between the parties. It is obvious that the matters to be determined in the suits are ultimately questions of fact; and the determination of the lower Court can only be challenged in one of three ways. There may be no evidence to support the findings; or the learned Judge may have misdirected himself in law in the process of arriving at those findings; or it may be said that his findings of fact, while not open to such objections, do not warrant the conclusion which he has drawn from them, It is in this last way that the appellants' case has been framed ; and it, therefore, becomes necessary to examine the judgment, and see exactly what it is that the learned Judge has found.
19. After a careful review of the somewhat troubled history of the zemindari in the light of such materials as were available to him, the learned Judge comes to the following conclusions:
1. That up to the year 1871 the amani system prevailed in full force, and the rent consisted of a definite percentage of the produce.
2. That after that time the ryots succeeded in making the successive zemindars agree to take money and not produce as rent.
3. That the amount of such money payments were not fixed Once and for all, but was altered every few years on the initiation of the zemindar, and was always altered in the direction of enhancement.
4. That every such alteration was preceded by an inspection of the lands and an estimate of their productivity.
20. Now so far as we have pure findings of fact and nothing more, they are amply supported by the evidence, and no serious attempt has been made to challenge them. From them the learned Judge has proceeded to draw these further conclusions: that the money payments from 1871 onwards were varied in accordance with the amount of the produce and mast be regarded as being made under the amani system, inasmuch as the essence of that system consists in taking from the ryot a contribution varying with the amount of produce; that the fact that the actual physical commodity taken was money and not grain was a mere matter of convenience to the parties; and that pattahs providing for payment of a fixed proportion of the produce must, therefore, be accepted by the ryots. For the ryots it is argued that though there may have been no fixed money rent, it is clearly proved that rent has been paid in money for the last 35 years, and that accordingly to give validity to a pattah on the amani system would be to disregard the outstanding feature of the usage obtaining between the parties. They further say that it is mere surmise to hold that the variation of the money rents paid was based on the proportion in force in the period before 1871, and that the estimates made of the productivity of the land may have been made for other purposes than the fixing of rent.
21. Mr. T. Rangachariar was, of course, faced with this difficulty: that when it came to fixing the amount of rent payable, the pattah would either have to be silent, or to prescribe such rent as the zemindar should choose or be able to exact. To avoid such an absurdity he points to Sections 27 and 28 of the Act, and puts his case in this way: the evidence shows that a money rent was paid; its amount varied no doubt from time to time, but its variation was determined either at haphazard or by factors no longer ascertainable, and accordingly the presumption should take effect that the sum paid in the last revenue year was the proper one to enforce.
22. I do not think that this contention is sound. Mr. Rangachariar was quite unable to suggest any purpose for which the ascertainment of the produce of the land would be necessary or useful, other than this, one of fixing the rent. Rebuttable presumptions are guides to the ascertainment of the facts; it is an abuse of their trim function to convert them into an excuse for evading that ascertainment. I think there was material on which it was open to the Judge to find that the payment in money from 1871 to 1909 was a mere incident which did not affect the principle upon which the payment was made, and that the tenure remained throughout an amani tenure. He has so found, in my opinion, not by way of mere surmise or conjecture, but upon a reasonable resolution of the probabilities of the case. That being so, we cannot disturb his conclusion, even if we would have arrived at a different conclusion had we been in his place. I think the learned Judge was mistaken in seeking to apply Section 26(3), which, in my opinion, has nothing whatever to do with this case; but that misconception in no way affects or vitiates his essential findings. The second appeals fail and must be dismissed with costs.