Sir Kameshwar Singh vs Janki Raman and Others

Fazl Ali, C.J.—These appeals arise out of four suits to recover cess from 1845 to 1347 and for rent and cess for the year 1348. The question for determination by this Court is at what rate cess is payable by the defendants in each case. The defendants are at present tenants of four different holdings which are situated in village Gandhari and Lalbandi tauzi No. 6424. These four holdings came into existence sometime in the year 1346, but before that year they were parts of one iholding of 155 bighas 12 kathas for which Rs. 115-9-0 was payable as jama and Rs. 7-3-6 was payable as cess. The original holding was entered in the record of rights as a "sharah moiyan holding," that is to say, a holding at a fixed rate of rent and was recorded to be in the possession of a single raiyat. In the course of the re-valuation of the estate, the holding was valued as a tenure and its value was fixed at Rs. 1629-15-0.

Upon this value, the. cess payable for the entire land comprising the present four holdings would be Rs. ioi-14-O and the case of the plaintiff landlord is that he is entitled to recover cess at this rate for the year 1848. As to the other year for which the suit has been brought the position is this: In certain previous suits the plaintiff has already recovered cess treating these four holdings as separate holdings and not as one tenure. He has now brought the present suits to recover the difference between the full cess which is payable according to him and the amount already realised by him.

Thus the main question which arises in these suits is whether cess is payable in respect of the lands of these four holdings under Clause (2) of Section 41, or under Clause (3). Clause (2) fixes the rate at which cess is payable by the holder of a tenure whereas Clause (3) fixes the rate at which cess is payable by a cultivating raiyat. The plaintiff''s case is that inasmuch as the lands constituting the four holdings have been valued as a tenure therefore cess is payable at the rate fixed as in the case of a tenure, that is to say, it is payable at the rate of one anna in the rupee.

On the other hand, the case of the defendants is that they are Cultivating raiyats in the sense in which the expression is used in the Cess Act and cess is payable only at the rate of half anna in the rupee.

There is no dispute that the rate at which cess is payable is to be determined according to Section 41, Cess Act. The question which we have to decide is whether the defendants are holders of a tenure or cultivating raiyats. It is stated in Section 4, Cess Act, that a "cultivating raiyat" means a person cultivating land and paying rent therefore not exceeding one hundred rupees per annum and that "tenure" includes every interest in land whether rent paying or not save and except an estate as above defined, and save and except the interest of a "cultivating raiyat." Thus the expressions "cultivating raiyat" and "tenure-holder" have a special meaning in the Cess Act which is different from the meaning attached to them in the Bengal Tenancy Act.

Therefore all that has to be found in these cases is whether the defendants are tenure-holders or cultivating raiyats in the sense in which these expressions are used in the Cess Act. It is not disputed that since the time when these four holdings were created the rent payable in respect of each of them is less than Rs. 100. The rent of holding No. 523 is Rs. 35; that of holding No. 524 is Rs. 33-7-3; that of holding No. 525 is Rs. 34-1-9 and that of holding No. 526 is Rs. 13. Therefore there can be no doubt that the defendants are cultivating, raiyats for the purpose of the Cess Act and therefore they are liable to pay cess according to the rate fixed under Clause (3) of Section 41.

It is contended on behalf of the appellant that a civil Court cannot go behind the valuation fixed in re-valuation proceedings and inasmuch as the lands of the four holdings were valued as a tenure, cess is payable upon the valuation so fixed. It is also pointed out that the plaintiff is the owner of the estate and when his estate was valued the lands comprising the four holdings were valued as a tenure and therefore a great injustice would be done to him if it is held that the defendants are to pay cess at a lower rate. This is precisely the argument which appears to have been put forward in Kesho Prasad Singh Vs. Ram Swarup Ahir and Others, and in Braja Bihari Das v. Ram Narayan Rai AIR 1938 Pat. 362. The learned Judge who decided the last mentioned case held following the earlier case that Section 93 debars a civil Court from questioning the valuation made by the revenue authorities under the Cess Act and a plea by the defendant that he is an occupancy raiyat and not a tenure-holder and that the valuation is wrong, is not entertainable by the civil Court.

In my opinion, however, these decisions are clearly distinguishable.

As I have stated, the present holdings originally formed one holding of 155 bighas and the rent payable in respect thereof exceeded RS. 100. Therefore, the holding was valued as a tenure in the re-valuation proceedings. But they have since been split up into four holdings with the consent and concurrence of the landlord. It was open to the landlord not to consent to the splitting up of the holding in which case cess would have been payable under Clause (2) of Section 41; but the landlord having given his consent to the splitting up cannot now refuse to treat the tenants of the different holdings as cultivating raiyats. Section 93 provides that every valuation made under Part II of the Cess Act shall be open to revision by the Commissioner and the Board of Revenue and not otherwise. The learned Additional District Judge who decided these appeals in the Court below has remarked as follows while dealing with this provision:

The raiyats do not question the basis on which the recent valuation has been done. They cannot question it. All that they state is that being cultivating raiyats now, they can pay only hall the enhanced cess as provided for by Clause (3) to Section 41, Cess Act.

In my opinion this observation furnishes the answer to the point in controversy. The defendants do not question the valuation but they merely claim that their status having changed they are now liable to pay cess under Clause (3) of Section 41. To test this conclusion, let us take a hypothetical case. Let us assume that after the revaluation a certain tenure was resumed by the landlord and after the resumption the landlord proceeded to create a number of holdings each carrying a rental of less than Rs. 100. Obviously in such a case the landlord cannot claim cess from the new tenants treating them as tenure-holders in spite of the tenure having been originally valued as such. If he cannot claim cess upon that footing in this hypothetical case, I do not see why he should be allowed to claim a higher cess in the present case.

In my opinion, the present case is fully covered by Abdul Hasan and Others Vs. Asghar Ali and Others, . In that case there was a tenure of 300 bighas with an annual jama of Rs. 560. That tenure came to be held by a number of cosharer 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.

Later on three suits were brought to recover cess and in each case the amount payable by the defendants was less than Rs. 100. It was held that where a person cultivates land and pays rent not exceeding Rs. 100 per annum such a person is a cultivating raiyat within the meaning of Section 4, Cess Act, irrespective of the character of his holding: under the Bengal Tenancy Act, and he is liable to pay cess at half the rate paid by a tenure-holder.

In this view I would uphold the decision of the learned Additional District Judge and dismiss these appeals with costs.

Ray, J.

I agree.