Judgement Appeal from a judgment and decrees of the High Court (October 13, 1908) reversing a judgment and decrees of the District Judge of Kistna (March 13, 1907) which affirmed a judgment and decrees of the Court of the Head Assistant Collector, Bezwada Division, Kistna District (August 24, 1906). The respondent, under circumstances appearing from their Lordships’ judgment, brought before the Court of the Head Assistant Collector forty-nine summary suits under s. 9 of the Madras Rent Recovery Act, 1865, against appellant raiyats to enforce the acceptance by them of pattas tendered in respect of their holdings. The Head Assistant Collector found that the pattas tendered were not in accordance with the agreed terms and dismissed the suits. Upon appeals by the respondent to the District Court, this decision was affirmed. The respondent then appealed to the High Court, which reversed the decree of the District Court. The learned judges agreed with the Courts below that it was clear from the muchalkas that there was no contract as to rates of rent payable for wet cultivation, but they held that there being no contract the respondent was entitled under s. 11, sub-s. 3, of the Madras Kent Recovery Act, 1865, to claim asara rates in respect of lands cultivated with wet crops; and that the pattas tendered were proper. The judgment of their Lordships dealt only with the question of the right of appeal to the High Court; the arguments of counsel upon the other questions involved are not reported. De Gruyther, K.C., and Parikh, for the appellants. The respondent had no right of appeal to the High Court, and the decisions of the District Court in the appellants favour were final and should be restored. The proceedings were summary pro ceedings under s. 9 of the Madras Rent Recovery Act, 1865. By s. 50 an appeal is given to the Zillah Court, but it is provided by s. 76 that in proceedings under the Act there shall be no further appeal, except as allowed by s. 58. Sect. 58 gives the Collector power to revive suits in which judgment has been entered on default or ex parte, and this exception to s. 76 is to be read as exclusive. The respondent had an option under s. 87 of the Act to proceed by suits in the Civil Courts, when the ordinary procedure as to appeals would have applied. 58 gives the Collector power to revive suits in which judgment has been entered on default or ex parte, and this exception to s. 76 is to be read as exclusive. The respondent had an option under s. 87 of the Act to proceed by suits in the Civil Courts, when the ordinary procedure as to appeals would have applied. The present proceed ings being under the provisions of a statute which gives no right of appeal to the High Court, that right cannot be inferred from general procedure enactments Rangoon Botatoung Company v. the Collector, Rangoon (( 1912) L. R. 39 Ind. Ap. 197.) ; Meenakshi Naidoo v. Subramaniya Sastri. (( 1887) L. R. 14 Ind. 4p. 160.) [MR. AMEER ALI The appeal in Parthasarathi Appa Row v. Narasayya(( 1910) L. R. 37 Ind. Ap. 110.) was in a suit under s. 9 of the Act of 1865.] In that appeal the present point was not taken. But even if an appeal lies from the District Court to the High Court it can only be where the circumstances come within s. 584 of the Code of Civil Procedure, 1882. In the present case there were concurrent findings of fact by the Collectors Court and the District Court, and an appeal is excluded by s. 585 of the Act of 1882 Durga Choudhrain v. Jawahir Singh Choudhri (( 1890) L. R. 17 Ind. Ap. 122.) Sir Erle Richards, K.C., and Kenworthy Brown, for the respondent. At the time of the passing of the Act of 1865 an appeal from the Zillah Judge lay, under the Code of Civil Procedure, 1859, s. 372, to the Sudder Court upon questions of law. The effect of later legislation has been to substitute the District Court for the Zillah Court and the High Court for the Sudder Court. Under the Code of Civil Procedure, 1882, s. 584, an appeal lies from the District Court except where the right is expressly taken away by statute. The right of appeal to the High Court in proceedings under the Madras Rent Recovery Act, 1865, was held to exist in Veeraswamy v. Manager, Pittapur Estate (( 1902) I. L. R. 26 Madr. 518.), which decision affirmed Kotappa v. Venkataramiah. (( 1900) 10 Madr. The right of appeal to the High Court in proceedings under the Madras Rent Recovery Act, 1865, was held to exist in Veeraswamy v. Manager, Pittapur Estate (( 1902) I. L. R. 26 Madr. 518.), which decision affirmed Kotappa v. Venkataramiah. (( 1900) 10 Madr. L. J. 398.) The decisions in the Collectors Court and the District Court were not decisions of fact, but depended upon the true construction of the muchalkas. The case there comes within s. 584 of the Code of 1882. If the appeal is allowed the case should be remitted in order that a proper patta may be tendered and accepted, otherwise the position of the respondent under s. 7 will be prejudiced. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by MR. AMEER ALI These consolidated appeals from certain decrees of the High Court of Madras arise out of a number of suits brought by the plaintiff-respondent in the Court of the Head Assistant Collector of the Bezwada Division, under the provisions of s. 9 of the Madras Rent Recovery Act (Act VIII. of 1865). The object of all the actions was to enforce by legal process the acceptance by the defendants of the pattas or leases he had tendered to them. The scope of the material sections of Madras Act VIII. of 1865 was considered by their Lordships in Parthasarathi Appa Row v. Narasayya (L. R. 37 Ind. Ap. 110.) ; it is sufficient, therefore, to say in this case that under this Act the landlords are required to enter into written engagements with their tenants, in default of which no suit is maintainable to enforce the terms of the tenancy, and that in case of the refusal by the tenant to accept a patta " such as the landlord is entitled to impose," the landlord can proceed under s. 9 to enforce the acceptance by a summary suit before the Collector. It has to be remarked that in the Madras Presidency, or certain parts thereof, irrigated lands on which are grown what are called "wet crops" are generally subject to a higher rate of rent, either in kind or in cash, than those which yield only " dry crops/ and that it is usual for the zamindars to enter into yearly engagements by tendering pattas from year to year and obtaining muchalkas or counterparts executed by the tenants evidencing the acceptance of the terms of the lease. Shortly stated, the respondents case as made in his plaint is that the raiyats, the defendants in the suits, prior to Fasli 1283 (approximately corresponding to 1876), paid rent for the lands in their occupation on the asara or produce-sharing system; that in that year an arrangement was come to between them and the zamindar by which a money payment " was substituted for the share of the produce "; that this arrangement, however, was subject to the condition that whenever " the lands were fit for wet cultivation the wet rates would be settled." And he went on to add in paragraph 3 of each plaint " The lands men tioned in the tendered patta hereunto annexed having been newly brought under wet cultivation, and on the plaintiffs officials demanding defendant to accept the agreement as in the surrounding villages in respect of wet crop cist, he (the defendant) having refused to do so, the asara patta with the rates prevailing under the immemorial system of sharing the grain heap (Palambaram system) was tendered for the wet land cultivated by him (dfendant) for this year. As the defendants, taking advantage of this, refused to come to any agreement in respect of the dry land also for which there was no dispute at all, the rates and babats in respect not only of the said wet land, but also of the remaining dry land, were as usual entered . in the said patta. As the defendants, taking advantage of this, refused to come to any agreement in respect of the dry land also for which there was no dispute at all, the rates and babats in respect not only of the said wet land, but also of the remaining dry land, were as usual entered . in the said patta. All the terms of the tendered patta so far as they are connected with the asara system are applicable to the asara system, and the remaining ones to the veesabadi system." The raiyats in their defence alleged that the arrangement introducing the veesabadi or cash system into their villages was intended to be and was in fact permanent in character; that some years later (Fasli 1292), when the money rates were revised, the veesabadi system was accepted as the basis of the new settlement; that recently they had been able, without any assistance or contribution from the plaintiff, to make their lands irrigable and fit for wet cultivation, and that the plaintiff was not entitled to revert to the sharing system and thus indirectly to enhance their rents without the interposition of the Collectors Court. On these allegations of fact the parties went to trial. The issues framed by the Head Assistant Collector are not very clearly worded, but they sufficiently indicate the main points for determination, namely, whether the substitution of the veesabadi for the asara system in the defendants villages was permanent in its character, or, in other words, was the plaintiff zamindar entitled to revert to the sharing system on the lands being made irrigable by the tenants. The Collector on the evidence held in substance that the conversion of the asara rates into cash payment in 1283, which was confirmed in 1292, and has been acted upon ever since, was a permanent arrangement, and that the plaintiff was not entitled to impose on the tenants pattas on the asara basis. He accordingly dismissed the plaintiffs suits without entering into the questions raised in the latter part of paragraph 3 of his plaint. On appeal by the zamindar, the District Judge affirmed the decrees of the Collector in respect of the finding of fact relative to the character of the arrangement of 1283, and upheld the orders dismissing the suits. From the decrees of the District Judge the plaintiff preferred second appeals to the High Court of Madras. On appeal by the zamindar, the District Judge affirmed the decrees of the Collector in respect of the finding of fact relative to the character of the arrangement of 1283, and upheld the orders dismissing the suits. From the decrees of the District Judge the plaintiff preferred second appeals to the High Court of Madras. It is necessary to set out that portion of the High Court judgment which forms, in their Lordships opinion, the key to the decision of the learned judges. They say " Till Fasli 1283 the asara system was in force. In Fasli 1284 money rents were introduced and the rates of such rents were permanently fixed in Fasli 1292. At that time all the lands were dry. Wet cultivation began in Fasli 1314, and the pattas now in dispute were then tendered, as the tenants refused to pay more than the rates fixed in 1292 which they had previously been paying for the lands as dry. Nothing had been done by the plaintiff to provide facilities for irrigation. In the muchalkas executed by the tenants for faslis prior to 1314 there are clauses to the effect that the plain tiff may make an extra charge if wet or garden crops are raised on dry lands. The amount of such extra charge is not however stated. If the plaintiff is entitled to demand asara rates, the rates mentioned in the pattas tendered are correct. The Courts below have taken the view that the plaintiff has tendered asara pattas as a means of enhancing the rent, and that as he has not done anything to justify an enhancement of the rent, and has not obtained the sanction of the Collector for the enhancement, he is only entitled to the rents fixed in Fasli 1292. For the plaintiff it is contended that inasmuch as there is no contract as to the rates of rent payable on lands cultivated with wet crops, he is entitled under clause 3 of s. 11 of Act VIII. of 1865 to claim varam rates, it being admitted that no money assessment has been fixed under clause 2 of that section. That there is no contract as to the rates of rent payable for wet cultivation is clear from the admitted muchalkas, the material clauses of which have already been referred to. The only rates fixed were for dry cultivation. That there is no contract as to the rates of rent payable for wet cultivation is clear from the admitted muchalkas, the material clauses of which have already been referred to. The only rates fixed were for dry cultivation. The rates to be charged for wet cultivation were left undetermined. This being so, the contention for the plaintiff seems to be well founded." The High Court accordingly set aside the orders of the District Judge, and holding that "the pattas tendered by the plaintiff were proper pattas and that the defendants must accept them," they decreed the second appeals with costs in all the Courts. On an application for review of judgment, the learned judges appear, however, to have thought that "the contract between the parties is contained in the admitted muchalkas and must be gathered from the construction of those muchalkas." They therefore rejected the application for review. The raiyat defendants have appealed to His Majesty in Council, and two points have been urged on their behalf against the validity of the judgment of the High Court. It is contended in the first place that no appeal lay to the High Court under s. 69 of the Madras Kent Recovery Act, which provides for one appeal only from the order of the Collector to the Zillah Judge. This contention, however, ignores the provisions of s. 372 of Act VIII. of 1859, which, at the time the Madras Rent Recovery Act of 1865 was enacted, was the law regulating the procedure of the Civil Courts in India outside the Presidency towns. Under that section a special appeal lay to the Sudder Court from all decisions passed in regular appeal by the Courts subordinate to the Sudder Court. It is not disputed that the Zillah Judges Court was subordinate to the Sudder Court, nor that the appeal to the Zillah Judge from the Collectors Court was a " regular appeal"—an appeal on law and facts. Later legislation substituted the High Court for the Sudder Court, and the District Judge for the Zillah Judge, but the subordination of the one to the other was maintained. The provisions of Act XIV. Later legislation substituted the High Court for the Sudder Court, and the District Judge for the Zillah Judge, but the subordination of the one to the other was maintained. The provisions of Act XIV. of 1882, the law in force at the time when these suits were instituted, are clear on the point that an appeal lies from the order of the District Judge to the High Court, unless that right is taken away by express legislation or by some express provision of law. The point that a second appeal lies to the High Court in cases arising under Act VIII. of 1865 has been expressly decided in Veeraswamy v. Manager, Pittapur Estate (I. L. R. 26 Madr. 518,), and the practice appears to have been, ever since the passing of the Act, for such appeals to be preferred to the High Court. Their Lordships would not be disposed to interfere with such a long-standing practice, even if they thought there was an implied rule against second appeals lying from the decisions of the District Judge with respect to adjudications under the Act by the Collector. Their Lordships must, therefore, overrule the first objection. In the second place, it is contended for the appellants that the High Court was not competent under s. 584 of the Civil Pro cedure Code (Act XIV. of 1882) to set aside a finding of fact which had been concurrently arrived at by the two inferior Courts. Sects. 584 and 585 of the Civil Procedure Code are in. these terms Sect. 584. " Unless when otherwise provided by this Code or by any other law, from all decrees passed in appeal by any Court subordinate to a High Court, an appeal shall lie to the High Court on any of the following grounds, namely— "(a) The decision being contrary to some specified law or usage having the force of law; "(b) The decision having failed to determine some material issue of law or usage having the force of law; "(c) A substantial error or defect in the procedure as prescribed by this Code or any other law, which may possibly have produced error or defect in the decision of the case upon the merits." Sect. 585. 585. " No second appeal shall lie except on the grounds mentioned in section 584." This distinctly prohibits second appeals on questions of fact and confines the competency of the High Court to deal with questions of law and procedure. In the present case the sole question for determination was whether the arrangement entered into in 1283, and confirmed in 1292, was permanent. The plaintiffs allegation was that he was entitled under the circumstances to revert to the system that existed prior to 1283. The Collector and the First Appellate Court, who alone were competent to deal with the facts, came to the conclusion that the arrangement was permanent. The muchalkas were only a part of the evidence on which they acted. It seems to their Lordships that the learned judges, acting in inadvertence of s. 584 of the Code, assumed a jurisdiction which they did not possess. The rule relative to second appeals which was laid down by this Board in Durga Choudhrain v. Jawahir Singh Choudhri (L. R. 17 Ind. Ap. 122.) is clearly applicable to the present cases. On the whole their Lordships are of opinion that the judgments and decrees of the High Court cannot stand. Sir Erle Richards has, however, submitted that the simple dismissal of the suits would seriously prejudice the rights of the zamindar with regard to the matters referred to in paragraph 3 of the plaint which were not dealt with by the Collector. Their Lordships are of opinion that the best course under the circumstances would be to set aside the judgment and decrees of the High Court with a declaration that the plaintiff is not entitled to enforce the acceptance by the tenants of the pattas tendered by him, and that the cases should be sent back to be remitted to the Collectors Court for the drawing up of proper decrees and dealing with any other questions that may be outstanding in these actions between the parties. Their Lordships will humbly advise His Majesty accordingly. The plaintiff-respondent will pay the costs of this appeal and of the proceedings in the Courts of India.