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Judgment
It is admitted that the garden crop in this case is the result of an improvement effected by the tenant in sinking a well. According to the law (
Section 11, Madras Act VIII of 1865) the landlord is precluded from. enhancing the rent on account of improvements made by the tenant per
Muttusami Ayyar, J. Venkatagiri Raja v. Pitchana ILR 9 Mad. 27. The imposition of garden assessment is clearly an enhancement of the rent. It.
was, however, contended that the zamindar was, in accordance with the custom of the zamindari, entitled to the assessment claimed.
The custom relied upon appears to have been an alleged custom of charging a varying assessment according to the kind of crop raised; such a
custom would, if established, be valid, but it could not derogate from the rights secured to tenants by Section 11 of the Act 1865. The custom
could only be upheld in so far as it might not conflict with the Statute law. In other words, the landlord would be entitled to vary the rates according
to the cultivation only in cases where the variation in the crop was not the result of improvements made by the tenant.
Our attention has been drawn to Fischer v. Naraynan Civil Revision. Petition No. 195 of 1895 (unreported). In that case, however, there is
nothing to show that the well had been constructed after Act VIII of 1865 came into force Prior to that Act zamindars sometimes collected an
enhanced rent on garden crop raised with the aid of wells constructed by the tenants, and a usage under which a zamindar made such collection
might not be unreasonable. But such a usage cannot affect the present case where the improvement was effected in 1891.
In this view the second appeal fails and is dismissed.