JUDGMENT
1. It is not clear from the judgment of the District Judge whether any contract, express or implied, has been entered into between the landlord and his tenants or one or other of them who are parties to these second appeals. Until this has been found, we are unable to dispose of these appeals. Fresh evidence will be allowed. The District Judge is requested to submit a distinct finding on the issue above stated.”
2. In compliance with this order the District Judge submitted a finding which explained that for convenience of the revenue accounts the land in the Kistna delta is classed as dry and that a water-rate of Rs. 4 per acre is levied by Government upon all land reached by the water of the anicut channels. The raiyats contend that when this irrigation is extended to their lands they need pay only this water rate to Government and the former dry rates to the zamindar. The zamindars contend that in such cases the raiyats must pay increased or wet rates to the zamindar, and a stipulation to that effect is inserted in the printed form of patta. The District Judge expressed an opinion that the acceptance in former years of pattas with this stipulation does not deprive the tenants of the protection given them by the proviso to Section 11 of Act VIII of 1865, and does not compel them to accept such pattas in future. The District Judge also was of opinion that payment for five years by the tenant to the zamindar of such increased rates supported the inference of a contract to continue to pay these increased rates. Upon this ground the District Judge found that four of the defendants who had paid the increased rates upon some irrigated land in faslis 1291 to 1295 must continue to pay these increased rates upon that land but not upon the extent newly irrigated in fasli 1296.
3. These second appeals coming on for final hearing the Court delivered the following judgment.
4. The District Judge has, we think, correctly found that there was no contract to pay the wet rates as regards the lands newly irrigated in fasli 1296. The contract, which the appellant seeks to rely on to prove the contrary, was a contract of lease which expired with fasli 1295 or prior to the term for which plaintiff now seeks to enforce a patta. Apart from contract the plaintiff cannot succeed, as he has clearly not brought himself within the requirements of the proviso to Section 11 of the Bent Act. Taking it that he has been at some expense for the minor distribution channels, he has not, it is admitted, obtained the sanction of the Collector to the additional rent which he seeks to enforce.
5. We are unable, however, to accept that portion of the District Judge’s finding in which he holds that there was an implied contract to pay wet assessment on the extent of land previously included in the lease for five years ending with fasli 1295. No implied contract as to future years can, in our opinion, be inferred from a single lease extending over a brief period of five years. The result is that we agree in the conclusions at which the District Judge arrived in the first instance and we accordingly dismiss the appeals Nos. 594–7 with costs and No. 598 without costs.
