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Judgment
Sinha, J.—This is a plaintiffs'' second appeal from the decision of the learned Subordinate Judge of Arrah confirming that of the Munsif at Sasaram in a suit for rent. The facts of this case culminating in this appeal are as follows : The appellants are the proprietors of a certain estate in which the defendants-respondents held a mokarrari tenure described in khewat No. 1 in the record of rights. This tenure was created by a registered deed (Ex. B), the patta dated 28th September 1900. The rent fixed by the contract between the parties as evidenced by the deed aforesaid was Rs. 70 per year. The suit out of "which this appeal arises was instituted for recovery of arrears of cesses at the rate of Rs. 18-4-0 per year for the years 1345 to 1348 Fasli. The defendants contested the suit chiefly on the ground that under the document creating the mokarrari tenure they were liable to pay the lump rental of Rs. 70 pet year and that there was no contract for the payment of cesses. They contend further that the parties had agreed that the tenure-holders would not be liable for any cesses, that is to say, that the parties had contracted out of the Cess Act. The Courts below on a consider-ation of the registered patta" aforesaid held that the defence had been made out and in that view of the matter dismissed the suit. Hence this second appeal. This appeal was heard in the first instance by a Single Judge of this Court before whom a preliminary objection was taken to the effect that u/s 102, Civil P. C, no second appeal lay to this Court. The learned Single Judge was of the opinion that prima facie such a suit would be excluded from the cognizance of a Small Cause Court by virtue of Article 13, Provincial Small Cause Courts Act. But in view of the decision in Maharajah of Yizianagram v. K. Yeeranna (13) 36 Mad. 18 he directed the case to be heard by a Division Bench as there was no decision directly in point of this Court. The learned Judge also indicated in his referring order that he was doubtful about the correctness of the view taken in the Madras case referred to above.
The first question for determination in this case is whether the preliminary objection raised on behalf of the respondents u/s 102, Civil P. C., that no second appeal lies in this case is sustainable. u/s 102 of the Code, no second appeal lies in a suit of the nature cognizable by Courts of Small Causes when the amount of the value of the subject-matter of the original suit does not exceed Rs. 500. In this case the second condition is satisfied, that is to say, the value of the suit in this case is below Rs. 500. Hence the main controversy on this point has centred round the question of whether the present suit was of the nature cognizable by Courts of Small Causes. That this suit was heard and deter, mined by a Court other than a Court of Small Causes does not decide the question. Under the provisions of the Small Cause Courts Act every suit is of small cause nature except those suits that are excepted from the cognizance of a Court of Small Causes by Schedule 2, Provincial Small Cause Courts Act. The test, therefore, for deciding the present controversy is whether the present suit comes under any one of the articles contained in that Schedule. It has been contended on behalf of the appellants that the present suit comes within the purview of Article 13 of the Schedule. Article 13 runs as follows:
A suit to enforce payment of the allowance or fees respectively called malikana and hakk, or of cesses or other dues when the cesses or dues are payable to a person by reason of his interest in immovable property, or in an hereditary office, or in a shrine or other religious institution.
u/s 5, Cess Act, all immovable property in the province except such property as may be exempted from its operation u/s 2 is made liable to the payment of cesses. Such cesses u/s 6 have to be assessed on the annual value of lands which have been defined u/s 4 as the total rent which is payable or if no rent is actually payable, would on a reasonable assessment be payable during the year by all the cultivating raiyats of such land, estate or tenure or by other persons in actual use or occupation thereof. The mode of payment of cesses is contained in Section 41 of the Act which makes the holder of an estate liable to pay the same chargeable in respect of the entire estate and the proprietor is enabled to realise a portion of the same from the tenure-holders, if any, or from the raiyats at a certain proportion of the cesses paid by him directly to Government. Hence it follows that a raiyat or a tenure-holder is liable to pay to the holder of the estate in which the holding or the tenure is situate a portion of the cesses actually payable to the Government by virtue of the fact that the tenure-holder or the raiyat has an interest in some land within the ambit of the estate and that the proprietor of the estate has been provided by the Act to be primarily liable for the payment of the entire Cesses leviable on the estate by reason of the fact that he is the proprietor of the estate.
From what has been said above, it follows that cesses are payable to the proprietor by reason of his interest in immovable property by tenure-holders or raiyats who hold their tenures or holdings within the estate. On a plain construction, therefore, of Article 13 of the Schedule to the Provincial Small Cause Courts Act, in my judgment, it is clear that a suit for cesses like the present is excepted from the cognizance of Courts of Small Causes by virtue of that article. But a Division Bench of the Madras High Court in the case referred to above reported in Maharajah of Yizianagram v. K. Yeeranna (13) 36 Mad. 18 has taken the contrary view. The reason given by their Lordships of the Madras High Court is that land cess is a tax levied by the Government and that the landlord who in the first instance has paid it to the Government is entitled to recover it from the intermediate tenure-holder because the latter as between himself and the landlord is a person who ought to bear the burden of the tax. I am not aware of the legal incidents of the Madras Act imposing the land cess referred to in that decision; but the provisions of the Bengal Act, 9 of 1880, which apply to this Province make it clear that cesses are not a tax on income but are imposed on land and have to be borne by the proprietor himself as also by persons holding intermediate subordinate tenures and holdings in that estate in certain prescribed proportions. It was so held as long as 1878 by a Division Bench of the Calcutta High Court in Surnomoyee Dabee v. Koomar Purresh Narain Roy (79) 4 Cal. 576 and this view has been consistently followed in that Court in Shumbhu Nath v. Hurro Sunduri Dabia (82) 11 C. L. R. 140, Ashutosh Dhar v. Amir Mollah (06) 3 C. L. J. 337 and Narendra Kumar Ghose v. Gora Chand Poddar (06) 33 Cal. 683. Further-more, cesses are by virtue of statute made part of the rent payable by a tenure-holder or a raiyat and realizable as such and a decree passed therefore has the effect of a ''rent decree.'' It may, therefore, be said that such a suit would also be excepted under the provisions of Article 8 of Schedule 2, Provincial Small Cause Courts Act. See in this connexion the decision of Mukherji J. of the Calcutta High Court in Mohanta Bhagawan Das Vs. Bhupendranarayan Singha, , where his Lordship has held that the definition of rent as contained in Section 3, Sub-section (5), is sufficiently wide to include cesses which are payable by the tenant to the landlord and therefore a suit relating to recovery of excess cess is one for rent., Refer-ence is also made in that decision to the earlier decisions of the same High Court in Bhupendra Narayan v. Midnapur Zamindary Co., Ltd. AIR 1922 Cal. 300 and Nawab Bahadur of Murshidabad Vs. Bhupendra Narayan Sinha Bahadur, . In my judgment there is no substance in the preliminary objection raised on behalf of the respondents and it must be held that this second appeal is. not within the mischief of Section 102, Civil P. C.
Coming now to the merits of the appeal, the Courts below have dismissed the suit on the ground that the following provisions in the deed creating the lease in favour of the tenants respondents exempt them from the statutory liability for the payment of their portion of the cesses,
Yah ke malguzari mai cess, road cess, dak cess adaye karna zimme ham zamindaran he hai: Mo-karidaran se hoi wasta wo sarokar nahin hai wo hoga wa agar hoi abwab jadid sarkar bahadur kayem ho to usko bhi ham zamindaran adaye karenge
which rendered in English means that the zamindars (lessors) will pay, revenue and cesses etc., and that the mokaridars have nothing to do with the payment thereof, and if any new cesses are imposed, the zamindars will pay the same. The above provision in the lease has been interpreted by the Courts below as having the effect of exempting the lessees from the payment of cesses. These words have been taken to mean that the par-ties had contracted '' themselves out of the provisions of the statute, namely, the Bengal Cess Act. If that interpretation is correct, the suit has been rightly dismissed by the Courts below. But, in my opinion, these words do not bear that interpretation. These words merely reiterate the legal position that the primary responsibility for the payment of Government revenue and cesses which are payable under the Cess Act by the zamindar rests on the zamindar, that is, the lessor, and that it has been agreed by the parties that it was not one of the terms of the document creating the lease that the responsibility of the lessor should be transferred to the shoulders of the lessees. Those words do not have the effect of doing away with the statutory liability of the lessees to pay their portion of the cesses, that is to say, cesses levied on the annual income of their tenure minus the landlords'' portion. That this was the intention of the parties is further made clear by the fact that where the annual rent payable by the tenant to the zamindar has been fixed, it is only said that the tenant shall pay to the proprietor Rs. 70 per year as rent. It does not further say that the said Rs. 70 is inclusive of cesses. The Courts below relied upon a decision of a Single Judge of this Court in Gourchandra v. Sarat Kumari Debi A. I. R. 1935 Pat. 305. That case is an authority for the proposition that it is open to the parties to enter into a contract at variance with the provisions of the Cess Act; in other words, that the liability to pay cess can be contracted out. But that case is not really of any assistance to the defendants respondents inasmuch as it has recognized the position that unless there are clear and unequivocal words to the effect that the parties were making terms for themselves at variance with the statutory law as laid down in the Cess Act, the law must take its course. Hence if a contract between the landlord and the tenant said that the landlord was entitled to so much rent besides so much as cesses, that does not necessarily mean that in the event of the enhancement of cesses by a revaluation of the estate including the tenure concerned, the tenant shall not be liable for his proportion of the enhanced cesses. The decision of a Division Bench of the Calcutta High Court in Mahanand Sahai v. Mt. Sayedunnissa Bibi 12 C. W. N. 154, is rather instructive in this respect. In that case, the mokurari lease had provided for a certain sum as being the fixed rent inclusive of cesses. Subsequently on a revaluation of the estate cesses realizable from the mokurari tenure were increased. The landlord claimed the additional cesses attributable to the revaluation of the tenure in question. The tenant pleaded that rents had been fixed in perpetuity and that, therefore, the lessees were not liable for the enhanced cesses. Their Lordships on a construction of the terms of the lease came to the conclusion that the contract did not provide that if the cesses were increased in future, the additional burden should fall only upon the landlord and that the tenant was exempt from liability even in the event of the cesses being enhanced on account of the revaluation of the leasehold. In this connexion I cannot do better than quote the following passage from their Lordships'' judgment:
In support of the interpretation which we put upon the contract, reliance may be placed Upon two well-established principles. In the first place, it is indisputable that when an exemption is claimed from statutory liability, the contract, under which exemption is claimed, must be strictly construed against the claimant and it must appear from its terms, beyond the possibility of any dispute, that the parties intended to vary the liability as imposed by the statute. This rule is especially applicable where exemption is claimed from taxation imposed by the State. No doubt, in this particular instance, it was open to the parties to contract themselves out of the provisions of the statute. But it must be clearly and satisfactorily established, not only that the parties did intend that their liability should be different from that created by the statute, but also, that they intended the variation to go to the extent now suggested on behalf of the respondent. In the second place, it is well-established that the construction to be placed on a deed ought to be such as will render it reasonable rather than unreasonable and will make it just to both the parties rather than unjust to one of them : see Attwood v. Emery (1856) 1 C. B. 110 and Rawlinson v. Clarke (1845) 14 M. & W. 187. In other words, as stated by Phillips J., in McElroy v. Sloope 47 FR 380, a Court should always prefer that construction, consistent with the language of the deed, which will prevent one of the parties from obtaining an unconscionable advantage over the other.
I would respectfully concur with the observations of their Lordships quoted above. Applying those principles to the present case, it must be held that there are no words in the lease which could be construed as exempting the lessees from all liability, present and future, under tha Cess Act. As already indicated, in the first instance, it is the proprietor''s duty to pay all cesses levied on the entire estate and then he is enabled by the provisions of the statute to realise a certain proportion of the total cesses from tenure-holders, if any, in the estate and from other tenants like occupancy tenants. In this case it is not said in the lease that Rs. 70 is inclusive of all cesses already realisable from the lands included in the tenure or that may hereafter be levied by fresh legislation or by a fresh valuation of the tenure with a view to finding out the annual value of the lands comprised therein. Again, if the contention raised , on behalf of the tenants respondents were to be accepted, it is not difficult to imagine a time when the proprietor may get nothing from the lessees by way of rent as the cesses may exceed Rs. 70 a year. We know that under the Cess Act cesses are levied on the annual value of the lands which implies total rents payable in respect of the lands comprised (in the estate. If the tenure-holder were to increase the productive capacity of the lands by improved methods of cultivation or by bringing uncultivated portion of the tenure into cultivation, the annual value of the lands in his tenure would naturally be increased with the result that a larger amount of cesses would be assessed thereon. The tenure-holder would make greater profits but the burden of those profits would not fall on him but on the lessor, so much so that with the passage of time and further improvement in the tenure, a stage may be reached when the cesses leviable on the lands of the tenure may amount to a figure larger than the rent fixed in perpetuity, namely Rs. 70. The acceptance of the interpretation placed upon the relevant words of the lease by the Courts below, and as contended for on behalf of the respondents, would lead to this unjust result that the landlord may be unjustly deprived of his share of the profits from the tenure. Certainly such an interpretation cannot be accepted unless another more reasonable construction cannot be put on those words. In this case the Court is not in that helpless position. As a result of all these considerations, it must be held that there are no clear words in the lease in question entitling the defendants respondents to complete exemp-tion from their statutory liability. In the result this appeal is allowed and the judgment and decree passed by the Courts below set aside and the suit decreed with costs throughout.
Fazl Ali, C.J.
I agree.