Harihar Dora and Others vs Upendra Pati and Another

Harries, C.J.—This is a Letters Patent appeal from a decision of Mohammad Noor J. in second appeal. The plaintiff brought the suit out of which this appeal arises against his cosharer gaontias for a sum said to be due as arrears of zabti bhogra. The plain, tiff was a cosharer gaontia and lambardar of village Kharmunda, whereas the defendants were his cosharer gaontias. In Government khalsa villages in the Sambalpur District there are gaontias who are village managers having proprietary rights in their homefarm lands. These lands are called the goantia''s bhogra or sir lands. The cosharer gaontias are allowed 25 per cent, of the collections of the village as payment for their duties as managers of the village, and they are bound to make over the balance of the collections through the lambardar to the Government. The bhogra lands of each gaontia are assessed to revenue, and if the revenue payable on a particular gaontia''s bhogra lands is equal to that particular gaontia''s share in the 25 per cent, of the total village collections, then the gaontia has to pay over the whole of the collections made to the lambardar.

If the assessment on the bhogra lands is more than that particular gaontia''s share in the 25 per cent, of the collections, the gaontia has to pay the lambardar not only the whole of the collections made but the difference between the amount assessed on his bhogra lands and his share of the 25 percent of the total village collections. On the other hand, if the assessment on the bhogra lands is less than his share of the 25 percent. of the village collections, the gaontia is entitled to deduct from the collections made the difference between his share of the 25 percent. of the village collections and the assessment on his bhogra lands. He, of course, has to pay the balance over to the lambardar. In oases where the assessment on the bhogra lands is greater than the gaontia''s share of the 25 per cent, of the total collections, the difference is known as zabti bhogra. Where the gaontia is entitled to keep back money out of his collections to make up the difference between his share in 25 percent. of the collections and the assessment on his bhogra lands, the amount which he is entitled to keep back is known as puraskar.

In the present case the defendants'' share in the village was five annas four pies, and in lieu of this share, they were admittedly holding a hamlet of the village Kharmunda known as Darangapali. Zabti bhogra payable by the defendants was assessed at Rs. 52 per annum. According to the plain, tiff''s case, he as lambardar had paid the whole of the revenue due from the gaontias to the Government, and, according to him, the defendants had refused to pay the amount claimed in this suit as zabti bhogra. The learned Munsif who heard the case at first instance, dismissed the plaintiff''s claim for zabti bhogra but on appeal this decree was reversed, and the plaintiff''s claim decreed. In second appeal Mohammad Noor J. affirmed the decree of the lower Appellate Court and dismissed the appeal. It has been argued before us that the amount of zabti bhogra alleged to be pay. able by the defendants was not satisfactorily proved in this case, The lower Courts relied upon a document (Ex. l) which is a table showing the zabti and puraskar lands pf village Kharmunda.

It is said that this document is not part of the Record of Rights, and accordingly it does not prove the amount payable by the defendants as zabti bhogra. This point does not appear to have been made in any previous hearing, and from a perusal of the judgment of the learned Munsif and of the learned Subordi-pate Judge it is clear that the defendants never challenged the fact that zabti bhogra at the rate of Rs. 52 per annum was assessed on the defendants'' lands. The defendants contended that they had never paid this sum and that the assessment was ex. cessive, but that those contentions are very different from the contention now put for. ward, namely that the amount assessed on these lands was never proved. It is clear that in the Courts below it was admitted that, the assessment amounted to Rs. 52 per annum, and that what was challenged was the legality of the assessment.

In my judgment it is not open to the defendants to challenge the validity of the assessment of zabti bhogra in the Civil Court. Such was assessed, at the time of settlement and steps should then have been taken to contest the assessment. Once the assessment was made and left unchallenged, it became binding upon the defendants, and they cannot in a suit, such as the present one, challenge the validity of that assessment. The defendants also alleged that this village had been partitioned in the year 1885 and that this partition put an end to any liability which may have existed for the payment of zabti bhogra. I entirely fail to appreciate how a partition could put an end to such a liability; in any event the zabti bhogra of Rs. 52 per annum was assessed on the defendants'' bhogra lands as late as the year 1927, that is 42 years after the partition. In those circumstances, it cannot possibly be said that the partition has in any way affected the defendants'' liability to pay zabti bhogra. It was contended before Mohammad Noor J., and has again been A contended before us that the Civil Courts had no jurisdiction to entertain this suit. Reliance is placed on Section 152(b)(10), Central Provinces Land Revenue Act, (Act 18 of 1881). The relevant portion of that Section is in these terms:

Except as otherwise hereinbefore provided, (a) no Civil Court shall entertain any suit instituted, or application made, to obtain a decision or order on any matter which the Governor-General in Council, the Chief Commissioner or a Be venue or a Settlement Officer is, by this Act, empowered to determine or dispose of; and in particular (b) no Civil Court shall exercise jurisdiction over any of the following matters:

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(10) claims connected with, or arising out of the collection of revenue, or any process enforced on account of an arrear of revenue, or on account of any sum which is under this or any other Act realizable as revenue....

According to the appellants, this is a claim connected with or arising out of the collection of revenue and hence no Civil Court has jurisdiction to decide it. The claim, it is said, is a claim for zabti bhogra, that is a claim for a form of revenue. It must be remembered that in this case the plaintiff-respondent as lambardar had paid the whole of the revenue due, and this claim was for the amount which the defendants should have paid the plaintiff as zabti bhogra. The plaintiff had in fact paid this sum to the Government on the defendants'' behalf, and in this suit he was claiming from the defendants money which he had'' paid to their use. The defendant-appellants have to concede that this claim is not a claim to recover an amount due as revenue, but they urge it is a claim connected with or arising out of the collection of revenue. Claims connected with or arising out of the collection of revenue must be claims which have arisen through actual collection. It is to be observed that Clause (10) deals not only with claims connected with or arising out of the collection of revenue, but also with claims connected with or arising out of any process enforced on account of arrear of revenue, or on account of any sum which is under this or any other Act realizable as revenue.

It appears to me that this clause deals with claims arising from actual collections or from the processes to enforce the realization of arrears of revenue or arrears of sums realizable as revenue. To come within this clause, the matter complained of and which gives rise to the suit must actually be connected with or arise out of an actual collection or some process for the recovery of arrears of revenue. The cause pf action must be intimately connected with the collection or with the process for the recovery of revenue. In the present ease this zabti bhogra was not collected by the lambardar from the defendants. The amount was actually paid, by the lambardar to the Government though he had never received it from the defendants. The present suit is a suit to recover a sum which the plaintiff has paid on behalf of the defendants, and in my view the present claim is not a claim connected with or arising out of actual collection. In fact it was the failure to collect the revenue before actual payment by the lambardar which gives rise to this suit.

The cause of action does not arise out of the collection or anything connected with the collection but rather from a payment made to the defendants'' use. It appears to me that Section 33, C.P. Land Revenue Act, makes it clear that a suit such as the one now before the Court does not fall within Section 152(b)(10) of that Act. Section 33 provides that

when any local area is under settlement, the Chief Commissioner may invest any Subordinate Settlement Officer with the powers of any of (the last five classes) of Courts described in Section 4 of (the Central Provinces Civil Courts Act, 1885), and the Chief Settlement Officer with the powers of a Court of a Deputy Commissioner described in the same Act, (Section 7), for the trial, in the first instance, of any of the following classes of suits instituted within such area:

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(b) suits by lambardars for arrears of revenue payable through them by the proprietors whom they represent;

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This Section gives revenue officers during a settlement powers to hear certain suits, which clearly would otherwise be heard by the Civil Courts. The Section pre-supposes that the Civil Courts have jurisdiction to hear suits by lambardars for arrears of revenue payable through them by the proprietors whom they represent. It is to be observed that by reason of Section 4(8a) "proprietor" includes a gaontia of a Government village in the Sambalpur District. The defendants, who are gaontias in a Government village, are, therefore, within the purview of Section 33, C.P. Land Revenue Act. After the settlement is completed, the powers given to the settlement officers to hear these claims is terminated; and Section 39 of the Act provides:

When the settlement of any local area has been notified as completed, all the powers exercised by the Settlement Officers in such area shall cease,. and all suits and applications pending before such'' officer shall be transferred to such of the Courts ordinarily having jurisdiction in such oases as the Commissioner of the Division directs, or, if there are no such Courts, shall be disposed of in such manner as the Chief Commissioner directs.

These Sections clearly show that during the pendency of settlement operations claims otherwise cognizable by the Civil Courts may be dealt with by settlement officer but when the settlement has been completed, the powers of the settlement officers are terminated and all pending suits are transferred back to appropriate Civil Courts. Unless claims by a lambardar. against co-sharers for arrears of revenue paid on their behalf are cognizable by the Civil Courts, then Section 83 and the following Sections of the C.P. Land Revenue Act, are unintelligible. In my view the present claim is a claim u/s 69, Contract Act, and is not a claim connected with or arising out of the collection of revenue, and the Civil Courts had jurisdiction to entertain'' the claim.

In my view the decision of Mohammad Noor J. is right and should be affirmed. I would, therefore, dismiss this, appeal with costs.

Wort J.

I agree.