Rama Mahton and Others vs Mohan Mahton and Others

Jwala Prasad, J.—These are appeals against the decree passed by the Subordinate Judge of Patna, dated 14th February 1927. The defendants are the appellants. They hold the land under the plaintiffs. The plaintiffs claimed arrears of rent with cess for the kisht of Pous and Chait, 1332 Fasli.

Both the Courts below have concurrently held that the arrear of rent claimed was due. In the trial Court an issue was raised as to what amount of cess the plaintiffs are entitled to get (issue 2). This issue was decided against the plaintiffs and cess at the rate of six pies in the rupee was allowed. On appeal the Subordinate Judge has allowed cess at the rate of one anna mentioned in the Road Cess Valuation (Ex. A) of 1915. The defendants have come up to this Court in second appeal, and contend that the Court below is wrong in allowing cess at the rate of one anna mentioned in the aforsaid Road Cess Valuation (Ex. A) and they urge that according to the kabuliyat of 1319 the parties had fixed the rent of the holding for ever; so also the cess at the rate of six pies in the rupee.

In appeal the learned Subordinate Judge holds that the kabuliyats mention the cess payable in 1319; but that since then in 1915 the new valuation of cess has been fixed by the Collector under the Cess Act and the plaintiffs are entitled to get cess at the rate annually fixed in spite of the stipulation in the kabuliyat to the effect that cess would be payable at the rate of six pies in the rupee. There can be no doubt upon the finding of the Court below that the defendants are tenure-holders within the definition of the term in the Cess Act which defined that a cultivating raiyat shall be one who pays rent less than Rs. 100 and a "tenure-holder" is one who is not a cultivating raiyat nor the holder of an estate. A tenure-holder under the Cess Valuation Act is not the same as a tenure-holder under the Bengal Tenancy Act. So for the purpose of payment of cess the defendants would be deemed to be tenure-holders. This is obvious upon the plain construction of the definition of "tenure-holder" and "raiyat" in the Cess Act and is concluded by authorities: Abdul Hasan v. Asghar Ali AIR 1927 Pat. 270 and Sarat Chandra Deb and Others Vs. Dharani Mohan Roy, . u/s 41(2), Cess Act the defendants are liable to pay to the plaintiffs the cess as fixed by the Collector under the Act. This liability to pay cess as fixed under the Act is liable to be varied by a contract between the parties as held in Ashutosh Dhar v. Amir Mollah [1900] 3 C.L.J. 337 and Surnomoyee Dabee v. Koomar Purresh Narayn Roy [1893] 4 Cal. 576. Mookerjee J. in Gobinda Chandra v. Lalit Mohan Roy [1915] 22 C.L.J. 571, has no doubt emphasised the fact that in order to get an exemption from the statutory liability imposed u/s 41 there should be a clear provision in the contract between the parties.

Now it is to be seen whether the provision in the kabuliyats in the present case is clear to show that the parties contracted themselves out of the provision in Section 41, Bengal Cess Act. The kabuliyats have been read to us and in two places it has been stated that the rent for the holding is fixed for ever and the cess shall be payable at the rate of six pies in the rupee. It would seem that these kabuliyats were for the first time construed by the lower appellate Court. There is no reference to the terms of the kabuliyats in the judgment of the Munsifi about the fixity or otherwise of the cess, though he refers to it upon the question of status of the defendants being that of an occupancy raiyat or tenure-holder. We do not understand how the question what amount of cess was payable by the defendants arose in the case regard being had to the claim of the plaintiffs made in the plaint. The plaintiffs distinctly claimed cess at the rate of half anna in the rupee. The defendants curiously enough in their written statement asserted that the rate of half anna in the rupee was fixed for ever by the terms of the kabuliyats. When the plaintiffs themselves did not claim higher than half anna in the rupee or at the rate mentioned in the Cess Valuation (Ex. A), the question whether the plaintiffs were entitled to a higher rent could not possibly arise, and in this view the question whether the defendants are liable to pay cess u/s 41, Cess Act, or according to the terms of the kabuliyats, is left open.

The plaintiffs'' claim for rent with cess at the rate of halt anna in the rupee is allowed in all the cases with damages at the rate originally claimed by them in the plaint. The appeal is decreed with costs in accordance with the success.

Dhavle, J.

I agree.