Raja Dhakeshar Prasad Narayan Singh vs Ramdarnarayan Singh and Another

Foster, J.—The defendants are mokarraridars of 2 annas 13 dams of Mauzas Rupaspur and Mohammadpur and they have been sued for arrears of mokarrari rent plus cesses. Rent has been decreed at Rs. 30-5-0 but it has been held that by the rule of res judicata the rent must be deemed to include pesses. In this second appeal the first question is whether the rent excludes or includes the cesses and the second question is how the cesses should be calculated.

The landlord appellant urges that the previous judgments are by no means decisions to the effect that the rent includes cesses and the learned vakil has read to me the decision in Exhibit 4 in support of his contention. My impression after hearing the contents of that document is that the only question there decided was what was the amount of jumma. The learned vakil for the respondents evidently is conscious of the mistake made in the lower appellate Court, for he now has receded to the position that the effect of Exhibit 4 is that the amount of cess there found is res judicata, and that therefore only 15 annas can be claimed as cesses in the present suit. That is an argument which is very easily disposed of. For once the liability is admitted, a perusal of the cess Act itself will show that in almost every important section stress is laid upon the fact that the cess is for the year that is current. So there cannot be res judicata in regard to the amount of cess, unless it is first proved that the two years, which are to be compared one with the other, fall under the same re-valuation. In this case the last re-valuation is stated to be of 1916 and it is exhibited on the record. Ex. 4 is dated 27th May 1916, but the rent was claimed for the year prior to the re-valuation.

Reverting to the contention that the the mokarrari rent includes cess, not only is this contention irreconcilable with the pleadings quoted in Exhibit 4, but it also appears to me that where a mokarrari lease is, as in the present case, several hundred years old it is obvious that the cess would be imposed by Section 5 of the cess Act:

from and after the commencement of this Act in any district or part of a district all immovable property situate therein shall be liable to the payment of a local cess.

As to the amount of cess payable that is clearly stated in Section 41. The learned Subordinate Judge has not, I think, understood the decision that he quotes on this point and he says that "nothing has been shown to the contrary." He finds that this judgment which he is quoting is an authority for the broad proposition that "a tenure holder has to pay only half an anna as cess u/s 41 bf the Cess Act." If nothing to the contrary has been shown in this particular case, everything to the contrary is to be found in Section 41(2) of the Cess Act.

I decide therefore that the plaintiff shall succeed to this extent. The amount of cess will be calculated in accordance with Section 41(2) of the case Act and added to his rent decree. The plaintiff shall have his costs in this appeal and throughout the suit; the decree for defendant''s costs being set aside.