SM RAMKUMARI DEVI Vs. HARI DAS MUKHERJI

JUDGEMENT

(1.) This appeal by the defendants is directed against a decision of the Subordinate Judge, Monghyr, confirming a decision of the Munsif, Begusarai, decreeing a suit for recovery of arrears of rent for the period Chait 1354 to Asarh 1356 Fasli and of cess for the period from 1943 4th quarter to 1949 2nd quarter in respect of a mokarrari tenure held by the appellants under the plaintiffs respondents in seven villages lying in tauzi No. 1002/ 47. The tenure forms portion of a larger mokarrari tenure created by a registered lease on the 13th August, 1916 in respect of four annas share, in twelve villages appertaining to taluka Mananpur. The defendants acquired the mokarrari interest in these seven villages on the 16th September, 1943 by transfer from the successors of the original mokarraridar. Under the deed of transfer, the mokarrari jama of the transferred interest was fixed at Rs. 829-4-6 including cess. Since the transfer, the plaintiffs have treated the transferred interest as a separate mokarrari tenure and have been recovering the jama accordingly. The Courts below have found that when the tenure was created in 1916 the cess payable in respect of these villages was Rs. 48-12-6 and that by increase at successive revisions of the cess valuation in the year's 1921-22, 1944-45 and 1945-46 the cess has been gradually raised to Rs. 352-7-0. They have decreed rent on the basis that the fixed rent payable is Rs. 780-8-0, that is to say, the jama of Rs. 829-4-6 less the cess in 1916. They have decreed the arrears of cess according to the amounts assessed in the cess revaluation proceedings.

(2.) Three points have been urged: 'Firstly', that under the terms of the mokarrari deed of 1916 the plaintiffs are entitled to realise only Rs. 829-4-6 inclusive of cess: 'Secondly', that having realised rent and cess at that rate for certain years in suit, the plaintiffs cannot realise arrear cess at a higher rate for those years; and 'Thirdly' that the period of limitation for recovery of arrears of cess is three years and arrears sued for and arising prior to that period are not recoverable.

(3.) The relevant passages in the mokarrari kabuliyat relating to the jama are as follows: