Shaikh Abdul Hasan and Others vs Shaikh Asghar Ali and Others

Adami, J.—These three second appeals arise from three suits in which the plaintiffs as landlords sought to recover from the defendants as tenure-holders arrears of cess for the years 1326 to 1329 at the rate of one-anna in the rupee. The defendants contested the suit on the ground that they were not tenure-holders but cultivating raiyats and were liable only to pay at the rate of half-anna in the rupee.

It appears that there was a tenure of 300 bighas on an annual jama of Rs. 560. This tenure came to be held by a number of co-sharer tenure-holders who subsequently agreed with the landlord that each should pay his share of the jama according to the amount of land he held in the tenure. The defendants in the three suits are co-sharer tenure holders, the amount of whose annual jama does not amount to as much as Rs. 100.

The trial Court found that, as a matter of fact, the defendants were cultivating raiyats within the meaning of the Cess Act, and, therefore, they were liable to pay at the rate of half-anna in the rupee only.

On appeal the learned Subordinate Judge has come to a different finding. He has stated that though he agrees with the learned Munsif that the liability to pay cess is based upon the provisions of the Cess Act and not upon the Bengal Tenancy Act, he still finds it difficult to agree with the Munsif that having regard to the definition given in Section 4 of the Cess Act, the respondents must be taken to be cultivating raiyats. He refers to the fact that the defendants are entered in the Record of Rights as tenure-holders and he also refers to and relies on the fact that the defendants are co-sharer tenure-holders within the meaning of the Bengal Tenancy Act. He holds that a division of a tenure could not change its character, nor would the distribution of its rental convert it into a different species of holding. He notices that in the Record of Rights though the defendants are entered as tenure-holders the cess to which they are liable is stated to be at the rate of half anna per rupee, but he holds that this was due to a mistake.

It is clear that the learned Subordinate Judge has taken a wrong view. The Cess Act in Section 41, Sub-section (3) states that every cultivating raiyat shall pay to the person to whom his rent is payable one-half of the local cess calculated at the prescribed rate upon the rent payable by him. The rate which is payable under the notification of the Government is one-anna and, therefore, a cultivating raiyat would have to pay half-anna in the rupee. The term "cultivating raiyat" is defined in Section 4 as meaning a person cultivating land and paying rent therefore not exceeding Rs. 100 per annum; and a "tenure" is defined as including every interest in land, whether rent paying or not save and except an estate as defined in the Act and save and except the interest of a cultivating raiyat. The Act thus clearly states that where a person cultivates land and pays rent not exceeding Rs. 100 per annum such a person is liable to pay at the rate of half the rate paid by a tenure-holder. The denomination "cultivating raiyat" has nothing to do with the Bengal Tenancy Act, nor has the Bengal Tenancy Act anything to do with the realisation of the cess. In deciding whether the defendants are liable to pay as tenure-holders or not, we have to consider the definitions given in the Cess Act and find out who is liable, and if a person cultivates the land himself and pays rent not exceeding Rs. 100 he is a cultivating raiyat whatever may be the character of his holding under the Bengal Tenancy Act. The defendants in this case pay a rent under Rs. 100 and, if they cultivate the land themselves, they will be liable only to pay cess at the rate of half an anna per rupee. There is nothing in the judgment of the lower Appellate Court to show us whether these defendants do actually cultivate the lands themselves, and the case must go back to the lower Appellate Court for a consideration of the evidence and decision whether these defendants do cultivate the lands themselves. If they do, since they fall u/s 41, they are cultivating raiyats and can only be liable to pay cesses at the rate of half-anna in the rupee.

The decree of the lower Appellate Court must be set aside and the case must go back to it for decision according to the directions given above. Costs will abide the result.

Das, J.

I agree.