Judgement

Consolidated Appeal from a judgment and several decrees of the High Court (September 21, 1910) reversing decrees of the District Judge of Madura and restoring decrees of the Sub-Collector of Dindigul Division.

The respondents severally instituted suits in 1903 against the appellant, their landlord, under the Madras Rent Recovery Act (Mad. Act VIII. of 1865) for the grant of proper pattas. They claimed that the pattas should be at the rate for dry crops (i.e. 4 fanams per guli), and not at the rate for garden crops (i.e. 8 fanams per guli). The appellant pleaded (1.) that there was an implied contract for payment at the garden crop rate; (2.) that in the villages of the zamindari there was a long-standing custom or local usage by which the rents varied with the nature of the crops, and that 8 fanams a guli

Law Rep. 45 Ind. App. 195 ( 1917- 1918) Raja Jagaveera Rama Ettappa V. Arumugam Chetti

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was in conformity with local usage.

ft appeared from the evidence, or was admitted, that formerly a uniform rent at the dry rate (4 fanams per guli) had been paid; that each of the respondents at his expense had constructed a well upon the land of which he was tenant, and had thereafter cultivated it with garden crops; that the appellant thereupon, for periods varying in the suits from two to forty years, had claimed and been paid rents based upon the garden cultivation rate (8 fanams per guli).

The course of the litigation, which had extended over many years,, appears from the judgment of their lordships.

The present appeal was from a judgment of the High Court (Abdur Rahim and Ayling JJ.) reported at

I. L. R. 35 M. 134. by which it was held, after a remand, that there was no consideration to support an implied contract by the respondents to pay at the enhanced rate. By a previous decision of the High Court, reported at I. L. R. 28 M. 444, it had been held that the custom alleged, even if proved, was unenforceable as it conflicted with s. 11 of the above-mentioned Act. Upon a Letters Patent appeal, unreported, when the Court affirmed an order remanding certain of the suits for trial on the question whether there were implied contracts, it had been held that the issue as to a custom could not be reopened on the remand.

1918. May 10, 13. De Gruyther K.C and Dube for the appellant. Prior to the Act of 1865 the zamindar was entitled to a share of the produce of the land as rent. The policy of that Act was to provide a rent equivalent to the produce. The former rent in these cases was fixed on the dry basis; by the contract then implied the rent was liable to enhancement upon the land being cultivated for garden produce. Further, the payment of rent at the enhanced rate over a period of years gave rise to an implied contract, within s. 11 of the Act, to pay that rent; the former contract having ceased to apply, there was good consideration. The respondents are estopped under the circumstances from denying their liability. [Reference was made to Natesa Gramani v. Venkatarama Reddi (( 1907) 1. L.

R. 30 M. 510.), Suppa Pillai v. Nagayasami Thumbichi (( 1908) I. L. R. 31 M. 19.), Parthasarathi Appa Row v. Chevendra Venkata Narasayya (( 1910) L. R. 37 I A. 110.), Madras Rent Recovery Act (Mad. Act VIII. of 1865), ss. 3, 6, 7, 8, 11, and Fifth Report (Madras), p. 8.]

Parikh for the respondents. The argument as to the effect of the original contract was not put forward at any previous stage of the litigation. The appeal to the High Court proceeded entirely upon the question whether there was an implied contract under s. 11. In any case the contention is repugnant to the policy of the Act. The rents were fixed at the original survey assessment in 1803 upon the dry basis, and had been paid upon that basis until the wells were constructed. There was presumptive evidence of a contract to pay rent at the dry rate Venkatagopal v. Rangappa. (( 1883) I. L. R. 7 M. 365, 369 F. B.).) No contract can be implied to pay at a higher rate. Payment at th