ORDER
1. There is no finding as to what are the rates that the Judge considers to be binding. The Government Order to which he refers is not in evidence. Nor do the judgments of either of the Courts below specify the settlement rates. The parties were at issue on the question of rates and the appellant is therefore clearly entitled to a finding as to what those rates are. There is no decree of the Assistant Collector on record and the decree of the District Judge does not mention any rates. Under Section 11 of Madras Act VIII of 1865, the settlement rates prescribed for adoption must have been on a survey made previous to 1st January 1859, as noted by the Judge, but the Judge has not decided this question. It does not appear that the plaintiff had an opportunity of showing that what was assigned under the Government Order was not limited to the Government revenue. We must, therefore, ask the Judge to return findings on the following questions:
(1)Whether the lands have been surveyed by Government previous to 1st January 1859, and if so, what money rent was fixed thereon?
(2) If the first issue is found in the negative, what was the nature of the interest assigned under the Government Order of the 18th June 1861?
(3) What are the rates to be inserted in the patta?
2. The Judge finds there was no implied contract, and as this is a question of fact, we must accept the finding.
4. The Judge also finds that certain conditions in the patta are unreasonable and has expunged them. We see no reason to differ from his findings on this point.
5. The return to the issues specified above will be made within eight weeks from the receipt of this order. Bach party will be at liberty to adduce fresh evidence. A copy of the Government Order of the 18th June 1861, and the issue paper (if any) should also be forwarded to this Court with the findings. Seven days will be allowed for filing objections after the finding has been posted up in this Court.
6. In compliance with the above order, the District Judge submitted the following finding:
Finding:
7. The Gudur pargana in the Vallur zamindari is said to have been attachad for arrears in 1851 by the Collector of Masulipatam. In 1853, the zamindar surrendered the pargana to Government, but in 1861 Government decided to restore it, and it appears to have been restored in 1862.
8. The defendants in the present suits have called five witnesses, who say that, when the pargana came under the Collector of Masulipatam in 1851, the villages were surveyed, and that money rents were imposed upon the fields. The zamindar calls six witnesses, who say that the system followed by the Collector of Masulipatam was to impose a lump sum on each village, and that the raiyats, amongst themselves, classified their lands and arranged what each was to pay, so as to make up the total which the Collector required from each village. Both sides rely upon documents. The raiyats produce the village accounts which show classification of fields and money rents due by individuals. The zamindar relies upon a village rent lease for a whole village signed by Mr. T.D. Lushington, who was Collector of Masulipatam from 1849 to 1855.
9. Although I have studied Act VIII of 1865 for the last twenty-four years, I have never been able to find out why the date 1st January 1859 was inserted in Section 11 of that Act or what survey and money assessment in zamindari tracts, the framers of that section had in mind. I do not know of any survey or any money assessment on fields in any zamindari estate in the Madras Presidency. I have never met any person who could give any explanation of this section and I can find nothing in the statement of objects and reasons for the Act.
10. I am disposed to believe the zamindar’s witnesses who say that the Collector of Masulipatam imposed village rents from 1851 to 1861. That would be in accordance with the revenue administration which then existed in the Masulipatam District. (See page 355 of the Kistna District Manual.)
11. These village rents were fixed by the Collector upon the best estimate he could frame of the capability of the land and for the purposes of this estimate the fields were classified and individual money rents were imposed by the villagers themselves, but, so far as the Collector was concerned, all the raiyats of the village were jointly and severally liable for the whole village rent. I cannot find that this system of village rents with a rough individual adjustment of the burden was a survey and a fixing of money assessment on the fields, within the meaning of Section 11 of the Rent Act.
12. I am next directed to find what was the nature of the interest assigned under the Government Order of the 18th June 1861. That order restored the pargana to the zamindar and the view I take of the matter is as follows:
13. It may be that Government has the power to increase a raiyat’s sist, but, when Government assigns that land revenue to a zamindar, the zamindar can collect only the sist which the raiyat was then paying to Government and cannot increase the amount. As authority for the proposition, I cited Special Appeal Suit No. 15 of 1812 in which the Sudder Court reinstated a raiyat at the rates prevailing before the permanent settlement, and Palaniappa v. Raya I.L.R. 7 Mad. 325 where Turner, C.J. and Hutchins, J. held that Section 11 of the Rent Act does not enable a landlord to collect more. It appears to me that these two decisions have conferred this right upon the raiyats who hold under Government in the Madras Presidency. It appears to me that when the zamindar of Vallur surrendered this pargana to Government in 1853, the raiyats in that pargana at once became raiyats holding under Government with all their rights. It follows that in 1861 Government had not the power to thrust back these raiyats into their former status. Government in 1861 might make what stipulations seemed fit about peisheush and such matters, but could not confer upon the zamindar against the raiyats powers which the case-law of this Presidency does not permit.
14. This is a large question in this district. Except the Palnad taluk, all this district was once held by zamindars. Many of these estates were attached and sold for arrears and bought in by Government, so that now the greater part of the district is directly under the Collector. The raiyats in those tracts which once were zamindari estates are treated in every respect by the Courts as are raiyats in tracts that have always been under Government. It would astonish these raiyats to be told that Government could now hand them back again to the old pensioned zamindars who live in their ruined forts in the Kistna district and that these zamindars could then enhance the rents of all raiyats who could not prove occupation from 1801. But this consequence will follow if the High Court now decides that Government had power to reduce defendants to their former status. Most of zamindaris in this district were sold in 1816. That is only forty-seven years ago. If the eight years from 1853 to 1861 will not protect the defendants, the forty-seven years from 1846 to 1893 will not protect the mass of raiyats in the Kistna district.
15. Whether this view be unsound or not, the presumption is that the grant in 1861 was a fresh grant. It will be remembered how the Privy Council held that there was a fresh grant of Nuzvid in 1802. Raja Venkata Rao v. Court of Wards I.L.R. 2 Mad. 128. The burden is upon the zamindar to show that the grant purported to restore to him the rights he had over his raiyats in 1853. This the zamindar has not shown. All he has produced is Board’s Proceeding’s, No. 1878, dated 20th March 1862, which cites a sentence from the Government Order, proposes certain settlement rates as a basis for the calculation of the new peisheush and recommends Government to distinctly provide that the zamindar shall settle with the raiyats at the rates assumed in this calculation. It is not known what orders were passed by the Government upon this recommendation.
16. I therefore find that the grant of this pargana in 1861 was a fresh grant and that the zamindar cannot levy from defendants more than the rates which they were paying to Government at the time of the grant.
17. The question next arises what these rates were. It is admitted that before 1851 the defendants held under the zamindar on the sharing system. Their second witness, the karnam, has extracted from the accounts which were the basis of the Collector’s village rents a statement showing what defendants then paid and those are the rates which they now claim. The zamindar made no change in the first year after he got back the pargana, then for seven years the sharing system was in force, then for five years individual money rents, and for two periods of five years there were leases with money rents, and in fasli 1296 and subsequently there have been disputes and the defendants have refused to pay more than what they called “settlement rates, that is, the rates which they paid when under Government. I am of opinion that the subsequent payments do not constitute an implied contract to pay higher rates and that defendants are entitled to pattas at the rates which they paid to Government.
18. These rates are as follows, as detailed in the statement prepared by the karnam:
ACRES Rs. A. P. 449. Chandana Ramaswami ... 2-33 5 7 10 450. Sammefca Sami ... 18-62 43 11 1 451. Ambati Venkatasami ... 20-12 17 4 6 452. Chandana Venkatasami ... 4-98 12 6 6 453. Sammeta Raghavayya ... 5-46 29 6 0 454. Chandana Venkataratnam ... 16-9 48 0 9 455. Sammeta Subbanna ... 20-16 21 7 4 456. Chandana Ratnam ... 2-36 13 9 8 19. The High Court calls for the issue paper. The only issue paper is the remarks printed at the opening of the Assistant Collector's judgment. 10. This finding will be submitted to the High Court. 11. These second appeals next came on for hearing on 10th and 16th July 1894, when the Court made the following order. 12. The parties were represented as before. Order.
13. Appellant is zamindar of Vallur in the District of Kistna and respondents are raiyats cultivating lands in the pargana of Gudur which is part of the zamindari. For fasli 1299 the former tendered pattas which the latter refused to accept. Thereupon the zamindar brought the suits from which these second appeals arise to enforce acceptance of the pattas under Section 9 of Act VIII of 1865. But the Judge found on appeal that they were not such as the tenants were bound to accept and that the latter properly objected to certain conditions and rates of rent embodied in the pattas. The Judge then proceeded under Section 10 of the Act to decide what pattas ought to be offered and in so doing declared, inter alia, that respondents are liable to pay only those rates of rent which they paid to Government at the time when the pargana was restored to the zamindar, viz., 1862. It is urged on appellant’s behalf that this declaration is contrary to the provisions of Section 11 of Act VIII of 1865.
14. It was admitted before the Judge that prior to 1851 the raiyats held their lands under the zamindar on the sharing system. In 1851 the Collector of Masulipatam attached the pargana for arrears of peishcush, in 1853 the zamindar surrendered the pargana to the Government, in 1861 the Government decided to restore it, and in 1862 it actually restored the pargana to the zamindar subject to the payment of a peishcush which was fixed with reference to its then improved condition. During the period when the pargana was under the Government, village rents were levied according to the Revenue Administration then in vogue in the District; of Masulipatam. The village rents were money rents. The Collector fixed the rent due on each village upon the best estimate which he formed of the capability of the lands situated therein, and held the raiyats jointly and severally responsible for the entire amount charged on the village. The raiyats without his intervention apportioned the rent so fixed upon their individual holdings and recognised this rough individual adjustment of the burden imposed by the Collector as regulating the quota payable on each holding. It is the quota each raiyat paid at the time of the re-grant that is now claimed by the respondents and recognised by the Judge as the rent payable by them to appellant. After the pargana was restored in 1861, the zamindar made no change for the first year. For the next seven years the sharing system was in force and varam was paid by respondents. Then for five years individual money rents were collected. Afterwards there were two leases with money rents, each for a period of five years. Upon these facts the Judge found with reference to the provisions of Section 11 of the Rent Act, that there was no contract, express or implied, as to the rent to be paid. He also found that the pargana was not surveyed and a money assessment fixed upon the fields prior to 1859 as contemplated in that section. Upon these findings, which we must accept on second appeal, it is clear that Rules I and II contained in Section 11 of Act VIII of 1865 do not apply. Instead of then proceeding to apply Rule III, embodied in Section 11, the Judge held that the rate of money rent paid by respondents to Government at the time of re-grant is the proper rent now payable to appellant by respondents. In his judgment, however, he specified only the name of each raiyat, the aggregate extent of his holding and the amount of rent paid by him to the Government instead of the rate of rent and the description of land comprised in each holding and its extent. We are unable to concur in the opinion that the rent paid in 1861 to the Government is all that is payable to appellant. It must be observed that even on the view that the grant of 1861 was a new grant, it was the grant of a permanently-settled estate in the pargana, and the incidents attaching to such grant have to be determined with reference to the provisions of Regulation XXV of 1802 as explained by Regulation IV of 1822 and to the terms of the grant. In the cases before us the grant or the Government Order, No. 121.4, dated 18th June 1861, under which it was made, is not in evidence. Subsequently to the date of the grant, the rents levied for more than twenty years were, as already shown, not limited to the money rents paid to the Government in 1861. There is no proof nor finding that the grant expressly limited the rent which the grantee was entitled to collect. In support of his opinion, however, the Judge relies on two decisions as constituting the case-law of this Presidency on the subject. Palaniappa v. Raya I.L.R. 7 Mad. 325 was a case decided between a raiyat and an inamdar whose inam did not consist in the grant of land but in the assignment of one-third of the revenue due thereon and in an arrangement made in 1868 by the Collector with the inamdar to the effect that the remaining two-thirds, which the raiyat paid direct to Government till then as quit-rent, should thenceforward be collected by the inamdar and paid by him to Government. The ground of decision was that the limited character of the inam tenure showed that the only patta which the inamdar was entitled to grant was apatta prescribing payment of the revenue. In the cases before us, the appellant is the grantee of a permanently-settled estate who is entitled to waste land and to lands relinquished by raiyats in the pargana and who has an interest in occupied land as landholder though only subject to the prior rights already vested in the tenants. The raiyats in occupation at the date of the grant in 1861 may have rights of occupancy as against appellant, but we see no reason to hold that the rent actually paid then was rent fixed in perpetuity. The Judge himself observed that it might have been competent to Government to revise it. Even assuming that assessment paid in 1861 constituted the assets upon which peishcush was fixed, we think that by reason of the permanent settlement the relation of landlord and tenant which existed between the Government and the raiyats with such incidents as the law and the condition of the grant attached to it passed to the zamindar.
15. The other decision relied on by the Judge is that in Sadr Adaulat No. 15 of 1812. In that case one Ramaswami Ayyan holding lands under a mirasi tenure of which he had been deprived, sued the zamindar of Ponneri to recover possession of those lands and damages sustained in consequence of his dispossession by the zamindar, and further to compel the latter to grant him a patta under Section 9 of Regulation XXX of 1802. The Zilla Court, the Provincial Court and the Court of Sadr Adaulat upheld the claim to recover possession of the lands and damages and to obtain a patta. As regards the rent for which a patta should be tendered, the Zilla Court and the Provincial Court held that it should be a money rent at the annual fixed beriz of star pagodas 60-6-16, which amount was assessed on the land in question and paid by the raiyat to the Government in the year Raudri (when the permanent settlement was made); but the Court of Sadr Adaulat set aside this decision, observing that there was not a tittle of evidence to show that a right to a patta with money rent paid to Government in the year Raudri existed on the part of Ramaswami Ayyan, that the evidence showed that the rent was not fixed, but was derived from a division of the produce which must fluctuate with the seasons and the commutation price, and that Ramaswami Ayyan was only entitled to receive a patta defining the rate of division of the produce, which rate was, as prescribed by Section 9, Regulation XXX of 1802, to be determined according to the rates prevailing in the year preceding the assessment of the permanent zamma on those lands. This decision does not appear to us to support the proposition put forward by the Judge, that the beriz paid to the Government in the year in which the permanent settlement was made is the rent properly payable by the raiyats to the zamindar. On the other hand, it appears to be an authority against such proposition. The reference to Section 9 of Regulation XXX of 1802 was a reference to the rent law which then prescribed the mode in which the rates of assessment in money or of division in kind were to be determined.
16. Thus, there being no case-law, as stated by the Judge, the decision should be that the rent be discharged in kind according to the varam. The appellant makes that claim before us and it is in accordance with the proviso of rule Til embodied in Section 11 of Act VIII of 1865.
17. Before we finally dispose of these appeals, we must ask the Judge to ascertain what is the established rate of varam in the village. On this point additional evidence can be admitted.
18. The finding is to be submitted in a month from date of receipt of this order in the Lower Appellate Court, when seven days will be allowed for filing objections after the finding has been posted up in this Court.
19. In compliance with the above order the District Judge submitted his finding.
JUDGMENT
1. Though the Judge concludes has finding with the remark that there is no established rate of varam in the village,” it is clear from his return on the finding called for that the rate of varam prevailing in the village was 460 seers to the raiyats and 440 to the zamindar out of every 900 seers, the raiyat’s 460 including 57 seers, costs of cultivation, and the zamindar’s 440 including 37 seers for karnam’s and others’ fees. As regards water-tax on poramboke lands irrigated from the anicut, the zamindar is entitled to recover a moiety from the raiyafcs. The patta will be amended as indicated in our former order and in accordance with the above finding.
Each party will bear his own costs of this appeal.
