The burden of proof lies upon the tenants to establish the absence of an established usage or implied contract disentitling the landlord from claiming extra rent for a second crop.

Sadasiva Ayyar, J.

1. One question is common to all these cases, namely, whether the defendant company, the proprietor of the Kannivadi Zamindari, is entitled in the pattas issued to its tenants to insert a term which makes the tenants liable to pay what is called in the pattas "penal assessment" for a second crop raised on wet lands with the help of water from an irrigation source belonging to the Zamindari. I may at once state that such a vaguely worded obligation to charge what is called "penal assessment" without mentioning the rate of assessment charged ought not to be allowed to be inserted in the patta. But I take it that the landlord charged one half of the usual wet rate of assessment for water taken for second crop, and attached the crops for the recovery of that amount along with the usual amount charged as wet rate for a single crop.

2. The question is whether the company is entitled to. so charge for the second crop. Having regard to Vaythenatha, Sastrial v. Sami Pandither (1881) I.L.R., 3 Mad. 116, Thayammal v. Muttia (1887) I.LR., 10 Mad., 282, and Venkata Rao v. Vaithilinga Udayan (1902) 12 M.L.J., 22, I think the landlord is prima facie entitled to claim such an additional rent provided it is not against any established custom of the estate or express or implied contract between the parties. I think it follows from the principles laid down in those cases that the burden of proving that there is such an established usage or implied or express contract lies upon the tenants. There is evidence in these cases to show that there was no such established usage or express or implied contract till about fasli 1252, as I find that the Government when it was in management of the Zamindari between faslis 1226 and 1252 charged extra assessment for kodai crops in several of those faslis, Kodai crop, according to Nelsons Madura District Manual (see Glossary at the end of the book) means extra crop of rice raised either before or after the principal or kalam. According to Winslows dictionary Kodaibhogam means. the crop grown in the hot season; the produce of cultivation in the hot season.

3. It is also admitted that for betel and other crops which can be raised only with the use of an extra quantity of water such excess assessment has been levied and paid all along, even after fasli 1252. The learned District Judge has approached this question of the right of the Zamindar from a wrong point of view, as he says in paragraph 8 of his judgment (in the case against which Second Appeal No. 514 of 1919 has been brought), as follows:

As the custom of levying such a rate is not established though there is a custom to levy extra for betel, etc., I think I must hold that the landlord had not the right to enter the clause as to second crop in the patta.

4. Thus he throws the burden of proving a custom to levy second crop assessment on the landlord though in the previous paragraph the Judge admits that such a levy is a reasonable and proper demand on the ryots. No doubt, if the defendant proves that to the knowledge of the landlord he has been raising second crops on his wet land for 50 or 60 years and has not been charged additional assessment, it may be some evidence that a usage has sprung up afterwards, after about fasli 1252, by which such extra assessment was not to be levied for second crop though it may be levied for betel, etc., crops. Even then it would not be evidence of a very strong character as it is negative evidence. But still the Court might be entitled to consider it in arriving at its conclusion on the question whether such a custom not to charge has been established. But, as I said, the District Judge has not considered the evidence in that aspect. He has assumed that it was for the defendant to establish that a custom to charge second crop assessment for paddy raised as a second crop prevailed. I would, therefore, remand all these cases for a finding on the question whether by usage or implied contract, the landlo