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Judgment
Fazl Ali, J.—This is a Letters Patent Appeal from the decision of a Judge of this Court in a second appeal arising out of a suit brought by the plaintiff-respondents to recover from the defendant-appellants, who admittedly own a gola on their land, ground-rent at the rate of Rs. 8-12-0 per year and tangiana (an expression which will be explained later) at the rate of Rs. 150 per year for the years 1341 to 1343 Fasli.
The suit was decreed by the first two Courts, but on second appeal the claim for tangiana was disallowed on the ground that it was in the nature of a tax or duty which the landlords are prohibited from collecting by Regn. 27 of 1793. The plaintiffs'' case in regard to tangiana is set out in paras. 5 and 7 of the plaint which read as follows:
Para. 5: In the aforesaid village lands are often given in settlement for erecting gola houses. The custom relating to the rate of settlement is that the goladar who takes settlement of the land to set up gola thereon pays to the malik 15 dams per tangi on grains, 5 dams per rupee on sale of tobacco, 2� dams per rupee on sale of mustard oil and ghee, 2� dams per rupee on sale, of jute fibre and sutli (string), 2� dams per rupee on sale tatpatti (string mats), 15 dams per tangi on sale as molases and rao (liquid molases) and two annas per tangi on sugar and bhura (crude sugar); It is called trhat and tangiana.
The land of the said village is settled for setting up gola in accordance with this custom.
Paragraph 7:
Five khatas out of kharji jama land known as Madhobagh was settled temporarily with Mangru Sahu son of Sukhlal Sahu, the ancestor of the principal defendants on a mutharfa rent (ground rent) of ten annas per month, an annual jama of Rs. 7-8-0 and on arhat fee which is called tangiana also of Rs. 150 in accordance with the fasli month and year. Accordingly the said land was settled for the gola terminable at the will of the malik. No lessee has got nor gets absolute interest therein.
The expression "tangiana" as will appear from the statement made in para. 5 of the plaint represents a sum of money charged by the landlord on the sale of article sold in a gola erected on his land. This sum should ordinarily be a variable one, but according to the plaintiffs, in the present case, the defendants'' ancestors had agreed to pay a consolidated sum of Rs. 150 at the time the land was settled with them for the construction of a gola. The plaintiffs thus base their claim on a contract though in para. 5 a reference has been made to a certain custom to show that the contract entered into by the ancestors of the plaintiffs and defendants was not an uncommon one but was in accordance with well-established local practice.
The plaintiffs in support of their case relied on Exs. 11 and 11 (a) which are the judgments of the original and the Appellate Courts respectively in a suit of 1874 which had been instituted by the plaintiffs'' predecessors-in-interest against the defendants'' ancestor Mangru Sahu for the recovery of tangiana at the rate of Rs. 150 per year. This suit had been decreed and in the present litigation the first two Courts have relied upon the two judgments as affording important evidence in proof of the contract upon which the plaintiffs have based their case.
As the finding of the first two Courts as to the existence of a contract for the payment of tangiana is conclusive, the only question to be decided in this appeal is whether this contract is contrary to law or otherwise unenforceable. In my opinion, the contract cannot be held to be unenforceable either on the ground stated by the learned Single Judge of this Court or on any other ground.
Regulation 27 was a regulation for reenacting with alterations and modifications the rules passed by the Governer-General in Council on 11th June and 28th July 1790 and subsequent dates for the resumption, and abolition of the sayer or internal duties and taxes throughout Bengal, Bihar and Orissa and for adjusting and paying compensations directed to be granted to the proprietors and other holders of property on account of the duties and taxes abolished. Paragraph 1 of this regulation which is in the nature of a preamble states among other things that
the imposition and collection of. internal fee from time immemorial have been the exclusive privilege of Government but it had been judged available to leave the exercise of this privilege to the landholders, Government contenting themselves with imposing general regulations for the prevention of undue exactions.
Then comes para. 2 of which the first article reads as follows:
No landholder, or other person, of whatever description, shall be allowed to collect, in future, any tax or duty of any denomination, but all taxes and duties shall be hereafter levied on the part of Government by officers duly appointed for that purpose, under such regulations as may be passed for their guidance.
Article 2, however, provides in clear terms:
No monthly or annual payments now made, or which may be hereafter, for the use of land, or houses, shops, or other buildings erected thereon, being clearly of the nature of rents and not duties or taxes are to be understood to be within this prohibition, but all such rents are to be enjoyed by the proprietors entitled thereto as heretofore.
Now it was held in a number of cases by the Calcutta High Court that the provisions of Regn. 27 of 1793 applied only to hats and bazars existing at the date of the regulation and not to those which came into existence afterwards: Ram Manick Roy v. Shaikh Asgur 11 W.R. 112, Chunder Nath Roy v. Moonshe Zamadar 16 W.R. 268, and Bungsho Dhur Biswas v. Mudhoo Mohuldar 21 W.R. 383, The gola which is the subject-matter of the present suit admittedly came into existence long after the date of the regulation and so if the view taken by the Calcutta High Court is correct, then the regulation has obviously no application to this case. The matter however does not end here. It appears that the regulation was repealed by Act 19 of 1871 which was
an Act for repealing certain regulations of the, Bengal Code which had ceased to be enforced or had become unnecessary.
Mr. P.R. Das who appeared for the respondents contended that in spite of this Act, the provision of this regulation remained operative and he referred us in this connexion to the decision of the Calcutta High. Court in Nityahari Roy v. Dunne 18 Cal. 652. The report of that case however shows that in that case the regulation was referred to merely as a matter of history.
The question as to whether the regulation was still in force neither arose for decision nor was it decided in that case. Mr. Sinha, who appeared for the respondents along with Mr. Das, tried to contend in the course of a separate argument that the repeal of Regn. 27 of 1793 should not affect the decision of this case, because certain other regulations which are still in force contain provisions similar to those to be found in this regulation. Mr. Sinha referred us in this connexion to Article 8 of Regn. 1 of 1793, Section 54, 55 and 61 of Regn. 8 of 1793 and Article 3 of Regn. 5 of 1812.
Regulation 1 of 1793 purports to contain certain articles relating to the limitation of public demands upon the lands in possession of zamindars, independent taluqdars and other actual proprietors paying revenue to Government in the Province of Bengal, Bihar and Orissa. In Article 8 it is simply stated among other things that the Governor-General now declares that if he should think it proper to re-establish the sayer collection or any other internal duties and to appoint officers on the part of Government to collect them, no proprietor of land will be admitted to any participation thereof or be entitled to make any claim for remission of assessment on that account. This recital is hardly of any importance, because what was suggested in this regulation was actually embodied in Regn. 27 of 1793.
Sections 54, 55 and 61 of Regn, 8 of 1793 do not also appear to me to have any direct bearing upon the question before us, because they were intended to prevent the landlords from imposing upon the raiyats abwabs and mahatut etc. It was never suggested in the present litigation that tangiana is in the nature of an abwab or that the defendants are raiyats in the sense in which the expression has been used in this regulation. Article 3 of Regn. 5 of 1812 provided:
Nothing herein contained shall be construed to sanction or legalise the imposition of arbitrary or indefinite cess whether under the denomination of abwab or mahatnt or any other denomination.
This provision however is to be read with another provision which follows it and which reads as follows:
All stipulations or reservations of that nature shall be adjudged by the Court of Judicature to be null and void but the Court shall, notwithstanding maintain and give effect to the definite clauses of the engagements contracted between the parties; or, in other words, enforce payment of such sums as may have been specifically agreed upon between them.
All that need be said in regard to this regulation is that in the first place it did not deal with the question of sayer or internal duties which were prohibited by Regn. 27 of 1793 and secondly it contains a specific provision authorizing the Court to enforce payment of such sums as may have been specifically agreed upon between the parties. It will thus appear that neither the regulation upon which the learned Judge of this Court has based his decision in the second appeal nor any of the other regulations which were relied upon by Mr. Sinha in this Court is of any assistance to the respondents. But what is to my mind still more important for the purpose of deciding, this appeal is that the appellants have failed to show that tangiana is in the nature of a tax or duty and cannot be charged by a private party.
It seems to me that there can be no objection to the recovery of tangiana, if the defendants'' predecessors-in-interest had agreed to pay it as a consideration for the occupation of the land settled with them for the erection of a gola upon it. Even Regn. 27 of 1793 made it clear that
its aim was not to divest the landholders of any collection they made under the denomination of sayer, not in reality a duty but a consideration for the use of grounds, shops or other buildings-belonging to them,
and that
no monthly or annual payments now made or which may be hereafter made, for the use of land, or houses, shops or other buildings erected thereon, being clearly of the nature of rents and not duties or taxes are to be understood to be within this prohibition.
The defendants have nowhere pleaded in the written statement that tangiana is in the nature of a tax or duty and the question was not raised by them until the case came to this Court in second appeal. It does not also appear to have been raised in the litigation of 1874. In para. 7 of the plaint, it has been stated that the realisation of Rs. 150 per year was one of the terms on which the land was settled with the ancestor of the defendant and both the Courts; below have held that this case has been proved. In my opinion it is difficult on these facts to hold that what is claimed as tangiana was not a consideration for the settlement of the land for the erection of a gola, but something in the nature of a tax or duty.
Mr. P.R. Das drew our attention to the fact that in 1874 two separate suits had been brought by the predecessors-in-interest of the plaintiffs, one for the recovery of the ground rent and the other for the recovery of tangiana.
Mr. Das contended that if there were any contracts at all between the parties there must have been two separate contracts one in respect of the ground rent and the other in respect of tangiana. He next contended that once the landlord had settled the land with the defendants'' ancestors on ground rent, he was not entitled to realize any other kind of rent from them afterwards.
Alternatively, he also contended that in all probability the reason for there being two separate suits was that the plaintiffs in the suit of 1874 combined in themselves two distinct and separate rights, the right to claim tangiana being based on some kind of lease which they may have taken from the Government to enable them to collect market dues.
Mr. Das says that even if there be no direct evidence to show that they were farmers under the Government in respect of the market dues, the theory that they may have brought the second suit in this capacity is as plausible as any other theory and should not be excluded from consideration.
Lastly, Mr. Das contends that the present plaintiffs cannot recover tangiana, because they have not succeeded in showing that they still continue to be farmers under the Government or that they still possess the right on which they claimed tangiana in the suit of 1874.
In my opinion the argument is wholly untenable. It was never suggested before either in this suit or in the suit of 1874 that plaintiffs were lessees under the Government for the collection of the market dues. It is obvious that at this distance of time it is difficult to know why two separate suits were instituted in 1874, but it is noteworthy that even in the suit of 1874 the Appellate Court remarked that
the liability for the rent of the land on which the gola stands is prima facie so inseparable from the liability to pay the arhat dues that nothing but the strongest evidence to the contrary would justify me in holding that the appellant is not liable for such rent if he is liable to pay the arhat dues.
The Court also remarked that the appellant "had entirely failed to show that one liability is distinct from the other." The question which is now raised by Mr. Das that once the landlord had settled the land with the tenants, he had no further interest left in the land and could not impose any further rent upon the tenants, was also not raised in any of the Courts below. Even assuming that there were two contracts, we do not know whether on the occasion of the first contract the landlord parted with his entire interest in the land or he made the settlement with any reservation. It is quite conceivable that the first settlement (if in fact there were two settlements) may have been made with the reservation that a further rent will be payable in case a gola was constructed on the land.
The matter however need not be pursued because as I have already stated, the questions as to whether there was one settlement or whether there were two settlements, and if so, what were the terms of those settlements, are all questions of fact and the appellants should have invited the Courts, which had the power to deal with the facts of the case to decide them.
In my opinion this appeal must succeed on two broad grounds, these being (1) that this Court cannot go behind the finding of the first two Courts that the defendants were bound by contract to pay tangiana and (2) that the contract has not been shown to be illegal or otherwise unenforceable.
The trial Court has decreed the plaintiff''s claim in regard to interest on the arrears of ground rent and tangiana up to the date of the suit as well as after the institution of the suit. It was pointed out on behalf of the appellants that the claim for interest up to the date of the institution of the suit must be disallowed in view of the decision of the Privy Council in AIR 1938 67 (Privy Council) .
In my opinion this contention must succeed as the plaintiffs do not claim interest on the basis" of any contract.
The claim for interest up to the date of the institution of the suit must therefore be disallowed, and with this reservation I would allow this appeal and restore the decree of the first Appellate Court. The plaintiffs will be entitled to their costs in all the Courts,
Harries C. J.
I agree and have nothing to add.