MUSAMMAT BAKHSHI Vs. HYDER KHAN

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit by the plaintiff zemindar against the respondent for recovery of a certain amount as an artisan cess, as the plaintiff himself calls it in paragraph 2 of the plaint. The defendants are weavers and they have four handlooms. The plaintiff claims Re. 1 per handloom as artisan cess and says it is payable every year at the end of the month of June. He goes on to say that some years ago there was a criminal case between the zemindar and weavers and since then all the weavers have formed a clique and stopped the payment of the artisan cess. The present suit was, therefore, brought for recovery of Rs. 66 as artisan cess from the 30 of June 1919. The contention of the defendants was that they were licensees of the Zemindars and they settled long ago with the permission of the former zemindars without payment of any rent as artisan cess, and they constructed three houses and one loom house at their own cost; that neither they nor their predecessors in-title had ever paid any rent or cess, and that there was no such custom as was pleaded by the plaintiff; that the zemindars of the village had improperly decided to assess rent on the sites of the houses and this was the way they had found out for enforcing this illegal cess.

(2.) In the Trial Court the suit was tried out on the ground that it was a suit for ground rent and the learned Judge of the First Court came to the conclusion that the question of the defendants liability to the plaintiff was concluded in the plaintiff's favour because of a decree passed in a previous suit between the predecessors- in-title of the parties to this suit and it accordingly decreed the plaintiff's claim.

(3.) The defendants went up in appeal and contested the finding of the First Court that the previous suit of 1866 was between the anscestors of the parties to this suit and operated as res judicata. They further pleaded that there was no proof of the receipt of artisan cess after the year 1866 and the suit was time barred. They also pleaded that no suit for artisan cess could he without the sanction of the Government and that the custom set up by the plaintiff had been negatived. The learned Judge of the lower Appellate Court fixed an omnibus issue to the following effect. "Whether the appellant was liable to pay the rent claimed." He has found that the previous suit was between the predecessors-in-title of the parties to this suit and that the decree in that suit was for rent at Re. 1 per handloom. On the question of a suit being maintainable without the sanction of the Government he came to the conclusion that the amount was not a cess but ground rent which was realisable from such of the residents as were not cultivators and carried on some other occupation. He also went on to say "The wajib-ul-arz clearly records that mohtarifa was realised in this village." On these findings the learned Judge confirmed the decree of the First Court and dismissed the appeal.