SYED SHAH MASOOD AHMAD Vs. BIKAN MAHURI

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.