HYMAYUN REZA CHAUDHARY Vs. HARENDRA NATH DAS

JUDGEMENT

(1.) This is an appeal against the decree, dated 13 October 1943, of the Additional District Judge of Santal Parganas which reversed the decree, dated 7th May 1941, of the Subordinate Judge of Rajmahal. The suit is for reimbursement in respect of cess under the Cess Act, Bengal Act 9 of 1880, for which the plaintiff became liable between the year 1341-1346 (three quarters) and which the plaintiffs have paid. The claim is for Rs. 1325-3-0 plus interest Rs. 588-13-6 at 24 per cent, per annum. The plaintiffs are mutwallis of Kotal-pukur Wakf Estate, which is proprietor of 6 as. 8g. share in Mahal Ashila Mohabatpur, Touzi No. 110/l of the Dumka Collectorate. The defendants are holders of a patni tenure within the said touzi under registered patta and kabuliat of the year 1871 at an annual rent of Rs. 4800. The defendants are said to be liable to pay the entire cess for the estate under covenants of the patni lease. The defendants contend that they are liable to pay cess on the amount of valuation assessed for the patni tenure less a deduction at one-half of the rate of cess as provided in Section 41(2) of the Act. The first Court allowed the plaintiffs entire claim for cess with reduced interest at 6 1/4 per cent, per annum. The lower appellate Court upholding the defendants contention reversed the decision of the lower Court. The plaintiffs have preferred this appeal. The question for determination is whether the defendants are liable for cess assessed on the annual valuation for the estate, or for the patni tenure only, less the deduction provided in Section 41(2) of the Act.

(2.) The patni tenure is not conterminous with the entire estate, touzi No. 110/l. Certain Nij Jote lands, Chakrarn lands and the lands which had been diluviated before the creation of the patni were reserved by the landlord. The annual valuation of the estate for the years 1341-1345 B. S. was Rs. 11,042 odd and that for the patni tenure at Rs. 10,559. The annual cess payable for the estate in those years was Rs. 661-12-0. In 1346 B. S. the cess was reduced to Rs. 616-13-9. In the year 1935, there was a difference between the parties as to the amount of cess payable by the defendants. In a proceeding under Section 8 of the Patni Regulation, the Deputy Commissioner of Santal Parganas held that the patnidar was liable to pay Rs. 514-12-6 only as against the proprietor's demand of Rs. 661- 12-6, a year. This decision was followed in subsequent years. The defendants paid cess for 1341-1344 B. s. at the amount held by the Deputy Commissioner and Rs. 387-4-0 only for 1345. No payment was made for cess in 1346 B.S. The plaintiffs claimed reimbursement of the difference in the amount paid and that payable by the defendants for cess during the said period. The learned advocate for the appellants conceded that the patnidars are liable to pay cess on the annual valuation assessed for the patni tenure only and not for the entire estate. He, however, urged that under the covenants of the lease the patnidars are liable for the entire amount of cess payable annually for the patni tenure In other words the defendants are not entitled to the benefit of deduction of half the rate of cess as provided in Section 41(2), Cess Act. The relevant covenants in the patni lease are: The pay of the mail runners, and of postal muharrir and postal cess and tax etc. which has been now fixed in the Collectorate and will be fixed in future will be realised from us the patnidars and our representatives in proportion to the fixed jama besides the jama of the said mahal. In case of nonpayment it will be set off against our chalani money. If any plea or objection be put forward it will be void and illegal.

(3.) It is argued for the appellants that by the term of the covenants the lessee undertook to pay and discharge all taxes, assessments and impositions whatsoever being in the nature of public demands which are or may be charged, assessed or imposed on the estate within which the patni tenure lies. In support of the contention reference is made to the decision of the Privy Council in Bengal Coal Co. Ltd. V/s. Janardhan Kishore Lal Singh Deo and to three unreported decisions of this Court in P.A. No. 98 of 1938 and s. A. Nos. 523 of 1942 and 344 of 1942.