JUDGMENT
1. These second appeals arise from suits brought by the receiver of the Devarakota estate to enforce the acceptance of. pattas for fasli 1298 by raiyats in the jirayati village of Nidumole. The raiyats objected to three items in the pattas tendered to them, viz., Nayakvadi fees, tax on palmyra trees, and consolidated wet rates imposed on lands irrigated by the anicut channels from the Kistna. As regards the first two items, both the Courts below decided in favour of the zamindar, and the raiyats have not appealed from their decision. As for the wet rate, it is conceded no sanction has boon obtained from the Collector as required by the first proviso to Section 11, Act VIII of 1865; but it is contended that such sanction was not necessary, and that, even if necessary, it must be taken to have been accorded, the wet rates being inserted in the pattas under the orders of the Collector, who was the receiver. The first proviso to Section 11 expressly prescribes the sanction, of the Collector as a condition precedent to a valid enhancement of rent on account of improvements, and the intention is to protect the raiyats against excessive rates by requiring sanction by an officer competent to hold the balance even between the zamindar and the raiyats. Nor do we consider the institution of these summary suits by the Collector in the capacity of receiver to be equivalent to such sanction, the sanction contemplated by Section 11 being one judicially accorded upon consideration of the rights of both parties to what is deemed a fair and equitable rate. In Ramesam v. Bhanappa I.L.R. 7 Mad. 182 it has been held that the addition of waters-cess to the prior rent is an enhancement of rent within the meaning of the section. We consider, therefore, that the Judge was right in holding that, in the absence of a contract, the sanction of the Collector was indispensable, and that no such sanction, as is contemplated by Act VIII of 1865, has been given in the cases before us.
2. The next contention is that the Judge was in error in refusing to infer from the facts found a contract to pay the wet rate, and we do not think that it is tenable. The leading case on the subject is Venkatagopal v. Rangappa I.L.R. 7 Mad. 365. The general rule laid down in that case is that payment of rent in a particular form, or at a certain rate for a number of years, is presumptive evidence of a contract to pay rent in that form or at that rate for future years so long as the relation of landlord and tenant may continue. It was also there held that the presumption may be repelled by proof (1) that the rate in question was paid under a mistake, (2) that it was intended to be paid only [or a certain term/of years, and that, on the expiration of that term, the parties meant to revert to their original rights, (3) that there has been a diminution in the extent of the holding, (4) that its value has diminished by the deterioration of irrigation or other works which the landlord was bound to maintain, and (5) that there was some change of circumstances which would entitle the parties to the agreement to an alteration in its terms without necessarily putting an end to the relation of landlord and tenant. The Court also observed that when there is no proof of such special cause for alteration of the terms heretofore subsisting between the parties, it must be decided that so long as the tenant elects to retain the holding he is liable to the obligations in respect of rent which, it is to be inferred, from his past conduct that he has accepted. With reference to the general rule, the Judge considers that it is vague so far as it does not mention a specific number of years as sufficient to raise the inference of a contract and draws attention to Narasimha v. Ramasami I.L.R. 14 Mad. 44, wherein it was held that no contract as to future years could be inferred from a single lease extending over the brief period of five years. Again, in Apparau v. Narasanna I.L.R. 15 Mad. 47 it was considered that the fact that the tenant paid rent at a certain rate for six years was not sufficient to establish an implied covenant to continue to do so for the future. The Judge appears to have ruled in some cases that a period of three years was sufficient as under the Bengal Tenancy Act, and observes that he is inclined to hold in the cases now under consideration that nothing less than seven years will be long enough to satisfy the principle laid down in Venkatagopal v. Rangappa I.L.R. 7 Mad. 365. In the case last mentioned, which was a Full Bench case, a contract was implied, as money rent was found to have been paid for not less than fourteen years. We do not think that, in the absence of an express enactment applicable to this Presidency, the Judge is right in fixing three or seven years as the period contemplated by the Full Bench case. The decision whether a contract can be implied must depend on the circumstances of each case. The principle, which ought to be kept in view, is that the distinction between an express and an implied contract consists only in the mode of proof, and that the circumstances from which a contract may lawfully be implied must be such as will satisfy a reasonable mind that the real intention of the parties was that the particular rate in question should be the rate in future years so long as the relation of landlord and tenant may subsist between the parties, unless there is some special circumstance, such as is indicated in the Full Bench case rebutting the presumption. It may be that payment” of rent at the rate in dispute for five or six years is not sufficient where such payment is the only fact in evidence. It may also be that even when a particular rate has been paid for a longer period, there may be other circumstances which repel the presumption. In the cases now before us, however, there is no sufficient reason to doubt that the Judge has arrived at a correct finding. Apart from the fact that the wet rate in dispute has been paid in no case for more than seven years, in many cases for four or five years only, and in some even for one and three years, it is found that the raiyats paid the rate with reluctance and much protest. It is found, further, that the areas over which it has been paid are in many cases small and have varied from year to year. Moreover, it does not appear that the zamindar has incurred any expenditure in connection with works of irrigation.
3. We are unable, therefore, to uphold the contention that the Judge was in error in holding that it was not the intention of the raiyats that they should continue to pay the wet rate in dispute in all future years.
4. The appeals fail, and we dismiss them with costs.
