SRI BALWANT RAO NAIK KALIA Vs. BISWANATH MISSIR

JUDGEMENT

(1.) This is a plaintiffs second appeal from the decision of the learned Subordinate Judge of Arrah confirming that of the Munsif at Sasaram in a suit for rent. The facts of this case culminating in this appeal are as follows : The appellants are the proprietors of a certain estate in which the defendants-respondents held a mokarrari tenure described in khewat No. 1 in the record of rights. This tenure was created by a registered deed (Ex. B), the patta dated 28 September 1900. The rent fixed by the contract between the parties as evidenced by the deed aforesaid was Rs. 70 per year. The suit out of "which this appeal arises was instituted for recovery of arrears of cesses at the rate of Rs. 18-4-0 per year for the years 1345 to 1348 Fasli. The defendants contested the suit chiefly on the ground that under the document creating the mokarrari tenure they were liable to pay the lump rental of Rs. 70 pet year and that there was no contract for the payment of cesses. They contend further that the parties had agreed that the tenure-holders would not be liable for any cesses, that is to say, that the parties had contracted out of the Cess Act. The Courts below on a consider-ation of the registered patta" aforesaid held that the defence had been made out and in that view of the matter dismissed the suit. Hence this second appeal. This appeal was heard in the first instance by a Single Judge of this Court before whom a preliminary objection was taken to the effect that under Sec. 102, Civil P. C, no second appeal lay to this Court. The learned Single Judge was of the opinion that prima facie such a suit would be excluded from the cognizance of a Small Cause Court by virtue of Art. 13, Provincial Small Cause Courts Act. But in view of the decision in Maharajah of Yizianagram V/s. K. Yeeranna (13) 36 Mad. 18 he directed the case to be heard by a Division Bench as there was no decision directly in point of this Court. The learned Judge also indicated in his referring order that he was doubtful about the correctness of the view taken in the Madras case referred to above.

(2.) The first question for determination in this case is whether the preliminary objection raised on behalf of the respondents under Section 102, Civil P. C., that no second appeal lies in this case is sustainable. Under Section 102 of the Code, no second appeal lies in a suit of the nature cognizable by Courts of Small Causes when the amount of the value of the subject-matter of the original suit does not exceed Rs. 500. In this case the second condition is satisfied, that is to say, the value of the suit in this case is below Rs. 500. Hence the main controversy on this point has centred round the question of whether the present suit was of the nature cognizable by Courts of Small Causes. That this suit was heard and deter, mined by a Court other than a Court of Small Causes does not decide the question. Under the provisions of the Small Cause Courts Act every suit is of small cause nature except those suits that are excepted from the cognizance of a Court of Small Causes by Schedule 2, Provincial Small Cause Courts Act. The test, therefore, for deciding the present controversy is whether the present suit comes under any one of the articles contained in that Schedule. It has been contended on behalf of the appellants that the present suit comes within the purview of Art. 13 of the Schedule. Art. 13 runs as follows: A suit to enforce payment of the allowance or fees respectively called malikana and hakk, or of cesses or other dues when the cesses or dues are payable to a person by reason of his interest in immovable property, or in an hereditary office, or in a shrine or other religious institution.

(3.) Under Section 5, Cess Act, all immovable property in the province except such property as may be exempted from its operation under Section 2 is made liable to the payment of cesses. Such cesses under Section 6 have to be assessed on the annual value of lands which have been defined under Section 4 as the total rent which is payable or if no rent is actually payable, would on a reasonable assessment be payable during the year by all the cultivating raiyats of such land, estate or tenure or by other persons in actual use or occupation thereof. The mode of payment of cesses is contained in Section 41 of the Act which makes the holder of an estate liable to pay the same chargeable in respect of the entire estate and the proprietor is enabled to realise a portion of the same from the tenure-holders, if any, or from the raiyats at a certain proportion of the cesses paid by him directly to Government. Hence it follows that a raiyat or a tenure-holder is liable to pay to the holder of the estate in which the holding or the tenure is situate a portion of the cesses actually payable to the Government by virtue of the fact that the tenure-holder or the raiyat has an interest in some land within the ambit of the estate and that the proprietor of the estate has been provided by the Act to be primarily liable for the payment of the entire Cesses leviable on the estate by reason of the fact that he is the proprietor of the estate.