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Judgment
Byers, J.—The exchange of patta and muchilika is necessary for summary recovery u/s 112 of the Madras Estates Land Act and not for a
suit u/s 77 of the Act. There is no substance in this objection to the claim.
But regarding the claim to charge for water, the appellant is on firmer ground. The water is taken direct from a Government source and therefore
the charge for it is not "" rent "" within the meaning of Section 3(11) of the Act because the water is not supplied by the landholder.
Mr. K. Sreenivasa Rao relied on the decision in Tulshi Prasad Vs. Mathura Prasad, but that relates to Section 3(11) as it stood in 1925.
Clause 11 has since been amended in 1934 and a charge can be made for water only when it is supplied by the landholder. If Government
water passes first into the landholder''s source and thence to the tenant''s land, the case would be different; but it appears to be both parties'' case
that the water is taken direct from the Government source, so that the tenant is liable under the Madras Irrigation Cess Act.
The decision of the lower Courts is based upon the law governing Section 3(11) of the Act before its amendment.
The appeal is accepted, the decrees of the lower Courts are set aside, and the suit is remanded for fresh disposal after determining what is the
correct dry rate payable. The appellant will be given a refund of the court-fee on the second appeal.
The costs of this appeal will abide the final result.