MUNSHI MUHAMMAD-UD-DIN Vs. BHUPAN

JUDGEMENT

(1.) Second Appeal No. 1347 of 1932 has been heard with this appeal. Both these appeals are plaintiff s, appeals and arise out of two suits brought by the same plaintiff against the defendants-respondents to recover arrears of ground-rent. The plaintiff brought the suits as mutwalli of the abadi in which the defendants houses are. The defendants contended that they had never paid any ground-rent and that they were not liable to pay any. The plaintiff relied on para. 28 of the wajibularz of 1278 Fasli which is as follows: Raiyats who have settled in the village render service according to their profession and chaukidara is also realised from them according to their status.

(2.) The plaintiff claimed ground-rent from the defendants on the basis of the provision for chaukidara in this wajibularz. As has been rightly held by both the Courts below chaukidara cannot be regarded as ground-rent. On the other hand chaukidara was assessed not to be paid by the defendants on account of the use and occupation of their houses or on account of the rent of the sites of their houses but to be paid by the raiyats on account, of the salaries of the chaukidars maintained for the safety of the village. The chaukidara could not be regarded as ground-rent for the houses of the raiyats but is apparently a cess. The same point was considered in Tirkha Ram V/s. Chhotey 1927 All. 520 where the same view was taken. Section 86, Land Revenue Act, provides that: A list of all cesses other than those referred to in S 56 levied in accordance with village custom shall if generally or especially sanctioned by the Local Government be recorded by the Settlement Officer and no cesses not so recorded shall be recoverable in any Civil or Revenue Court; and no such list shall be altered or added to during the currency of settlement.

(3.) After the settlement of 1278 Fasli another settlement took place but no wajibularz of it was produced. If there had been any entry of any such chaukidara cess in it as was entered in the wajibularz of 1278 Fasli, the plaintiff would certainly have produced it. As no such cess was recorded in the last settlement, it is not recoverable under the provisions of Section 86, Land Revenue Act.