STATE OF BIHAR Vs. JHAWARMAL

JUDGEMENT

(1.) In the suit which is the subject- matter of this appeal the plaintiff prayed for recovery of Rs. 612/9/0 which is said to have been illegally realised from him on account of arrears of cess by the defendant. The case of the plain tiff was that no cess was due from him in all the three certificate cases, namely, No. 429 of 1938-39, No. 2251 of 1938-39 and No. 104 of 1943-44, with regard to the estate called Malhani Goth, bearing tauzi No. 547 of the Bhagalpur Collectorate. The plaintiff alleged that a warrant of arrest was issued against him in all these cases and under pressure of the process of court the plaintiff paid the amount to the peon who had come with the warrant of ar rest. The case of the defendant, namely, the State of Bihar, was that the plaintiff had purchased at a revenue sale tauzi No. 547 of the Bhagalpur Collectorate and that he was liable to pay cess and revenue for that tauzi. With regard to Certificate cases Nos. 429 and 2251 06 1938-39, the defendant alleged that the plaintiff had admitted that he was the purchaser of the estate and that he was laible to pay the dues with regard to revenue and cess. As regards Certificate Case No. 104 of 1943-44, the defendant alleged that though the plaintiff was not the certificate debtor he was liable to pay the amount of cess due in that case and the realisation on the amount in that case also was legal and just and the plaintiff was not entitled to succeed in the present suit. The suit has been partly decreed by the lower appellate court on the finding that the plaintiff was the purchaser of tauzi No. 547 and that he was the certificate debtor in two of the certifi-ficate cases, namely, in case No. 429 and case No. 2251 of 1938-39. With regard to case No. 104 of 1943-44, the finding of the lower appellate court is that the plaintiff was not named as the certificate debtor and the amount realised from him under threat of warrant of arrest was, therefore, an involuntary payment and the plaintiff was, therefore, entitled to realise the amount of Rs. 288/- together with proportionate coats and interest at 6 per cent per annum.

(2.) This appeal is presented on behalf of the State of Bihar against the judgment of the lower appellate court.

(3.) In support of this appeal the main conten-tion put forward on behalf of the appellant is that the plaintiff was 16 annas owner of tauzi No. 547 and that he was liable to pay the cess in question in Certificate Case No. 104 of 1943-44 and, therefore, the plaintiff has made out no case for recovering the amount back from the State of Bihar. The learned Standing Counsel on behalf of the defendant also drew our attention to the evidence of D. W. 1, Kashi Singh, the peon of the Bhagalpur Collectorate, to show that lie showed the warrant of arrest to the plaintiff who replied that he would pay the money after making proper enquiry in the office. The witness goes on to say that the plaintiff made enquiries in the office and then made payment to him with regard to Certificate Case No. 104 of 1943-44, and the other two certificate cases. It is not disputed on behalf of the respondent that he is the owner of tauzi No. 547. It is also not disputed on his behalf that the amount of cess which is the subject-matter of case No. 104 of 1943-44 was actually due from him. In these circumstances the question arises whether the plaintiff is entitled to maintain the suit under Section 72 of the Contract Act, which states as follows: "72. A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it".