(1.) The following facts are either undisputed or are proved by the evidence: The plaintiffs are the lessees of the Sivaganga Zemindari. Prior to fasli 1300 it was the custom for the tenants to bring their paddy, when harvested, to the threshing floor, when it was divided among those entitled to it in the following manner:first, the " common charges " were deducted; that is, the actual cultivator took his expenses of cultivation (Kudi Swatantram) and the village servants, such as the Kamam, Ambalagaran, totti, etc,, took the shares due to them (Pala Swatantram). Then the balance was equally divided between the Zemindar (or his lessees) (Melvaram) and the tenant (Kudivaram),
(2.) This was done in the presence of the Zemindari officials, the tenants and the village servants, and neither the Melvaram nor the Kudivaram could be taken until the "common charges " had first been appropriated. From and after fasli 1300 the lessees altered this old system which had obtained from time immemorial. They then directed the tenants not to bring the paddy to the threshing floor for division as hitherto, but to bring it direct to the granaries (Kalanjiams) of the lessees, and they promised to pay the village servants their fees, Swatantram, in a lump from the granaries. The village servants do not appear to have been consulted as to this arrangement; some of them appear to have acquiesced in it, but the totties protested. Their protest was unheeded, and they appear then to have accepted the situatiou and looked to the lessees for payment of their fees. These fees were, in part at all events, paid by the lessees to the village servarts, but a part of the fees due to the totties of Tirupatur and Themmapathu, for the faslis 1300 to 1302 remained unpaid. The totties are menial village servants who discharge various duties both for the Zemindar and for the Government and for the villagers. Their duties include both revenue and policy duties, as there are no Kavalgars in those villages, their duties being dis-charged by the totties. They made repeated applications to the lessee's officials for the unpaid fees, but could get no satisfaction. They then sent a number of petitions to (he Government Revenue officials who repeatedly pressed the lessees officials for payment of the arrears due. These arrears are shown in Exhibit (1)a statement furnished by the lessees's Tahsildar to the Government Deputy Tahsildar on the 7/4/1894. It showed the total paddy fees due to the totties for faslis 1300 to 1302 (1/7/1891 to 30/6/1893), the amount which had been actually paid to them in kind from the lessees granaries and in eash from the lessees treasury for paddy which had, been collected and sold and the balance that was still due, partly in cash by the lessees and partly in kind. The latter was shown as with parties," meaning apparently, that it was still in the hands of the tenants and had not been collected by the lessees. Farther correspondence followed, and at length on the 27 July 1893 the, Deputy Tahsildar issued a demand under Section 52 of the Revenue Recovery Act (II of 1864,. Madras) on the lessees for the balance shewn in Exhibit A (I). This was paid by the lessees on the 5 August 1896 under protest, on the ground that they were not liable for any fees which had not been actually collected by them. On the 4 August 1897 the lessees filed the present suit against the Secretary of State to recover the money Rs. 219-0-1) so paid and for other reliefs. The Subordinate Judge dismissed the suit, and the lessees now appeal against that decree.
(3.) The fundamental question which we have to decide is wheth-er, in the circumstances of this case-, the totties were entitled to demand their fees from the lessees or could recover them only from the tenants. The question is not altogether frez from difficulty, but the conclusion at which we arrive is that the totties could demand them from the lessees. It is to be observed that prior to fasli 1300 the question never arose. The crop was taken to the threshing floor by the actual cultivator or the tenant under the supervision of the lessees officials and the common charges including the totties fees were there and then deducted a first charge, and handed to the persons entitled thereto,or, in their absence, to the ambalagaran, who took charge of them for the absentee; and it was only after this had been done that either the landlord or the tenant could take their shares of the balance. The village servants could hardly be said to recover their fees from either the tenant or the landlord, but rather from a common fund from which all were to receive a share, and the shares of both landlord and tenant were equally liable to, and equally affected by, the deduction of the first charge in favour of the village servants. The fees to the village servants were not at that time entered in the Zemin accounts, but from fasli 1300 the tenants were required by the lessees to bring the whole crop, or at least the Mel-varam and village officers fees, to the lessees granaries direct and the village officers fees were from that time entered in the Zemin " Demand, collection and balance accounts." The reason for the change is not quite clear, but it was probably to enable the lessees to exercise a stronger control over the village servants, for the lessees Tahsildar says." The lessees issued orders not to disburse the Swatantrams if the village servants should show remissness." Whatever the reason was, it is clear that the change was made by the authority of the lessees, and for their own purposes, and on a promise or understanding that they would pay the fees in a lump to the village servants at the granaries (see evidence of 1 defence witness, uncontradicted).;