TIRLOKNATH TEWARI Vs. RAM RAN BIJAY PRASAD SINGH

JUDGEMENT

(1.) These two appeals arise out of the same judgment, and have been beard together. One of the appeals, namely, S.A. No. 52 of 1945 is by the defendant, and the other appeal, S.A. No. 59 of 1945 is by the plaintiff. The main questions, which arise for decision in the two appeals, are (a) the rent payable by the defendant in the years in suit in respect of the lands in question, and (b) cess payable for the same. The two appeals arise out of a suit for recovery of rent and cess for the period 1346 to eight annas kist of 1350 Fasli. The plaintiff is the sixteen annas proprietor of the village in which the defendant holds 149 bighas 18 kathas and 8 dhurs of lands. The lands are in two blocks, one of 70 bighas, and the other of 79 bighas odd. The quality of the soil of the two blocks is not the same; one of the blocks is of inferior quality and the other of superior quality. The admitted position is that rent payable for the superior quality block is Rs. 5-3-6 per bigha and that for the inferior quality block is Rs. 2 per bigha. It is further admitted that the defendant has to pay rent for the area actually cultivated in a particular year. There was a dispute in the trial Court as to the particular areas which were cultivated in the years in suit. The learned Munsif accepted as correct the areas of cultivable land as given in the plaint in the years in suit. This finding has not been disturbed in appeal, and learned Counsel for the defendant-appellant has not raised this question before us. It must, therefore, be taken that no question as to the areas of land cultivated in the years in suit arises now. There was, however, a dispute between the parties if the areas cultivated in the years in suit appertained to the superior quality block or the inferior quality block. The finding of the learned Munsif was that the lands so cultivated belonged to the inferior quality block and rent was payable at the rate of Rs. 2 per bigha. The Court of appeal, however, has reversed this finding and has held that the lands cultivated in the years in suit appertained to the superior quality block and rent was payable at Rs. 5-3-6 per bigha. The defendant-appellant is aggrieved by this decision and one of the points in the appeal preferred by the defendant-appellant relates to this question.

(2.) As to cess, the plaintiff claimed cess at Rs. 38-15-9 a year. The defendant- appellant con tended that cess was payable by him as a cultivating raiyat at six pies per rupee of the rent realizable for a particular year. The learned Munsif accepted the contention of the defendant and passed a decree accordingly. The Court of appeal below has reversed the decision of the learned Munsif and has held that cess is payable at Rs. 35-13-0 a year minus half anna per rupee on the amount of rent realizable in each year. Both the parties are aggrieved by this decision of the Court of appeal below on the question of cess, the defendant contending that cess is payable only at the rate of six pies per rupee of the rent realizable for a particular year, and the plaintiff contending that cess is payable at Rs. 38-15-9 a year. The appeal of the plaintiff is, therefore, confined to the question of cess only, whereas the appeal of the defendant raises both the questions, namely, of rent as well as cess. (After discussing the question of rent and holding that it turned on a question of fact as to which there was no sufficient reason for disturbing the finding of the lower appellate Court, the judgment proceeded.)

(3.) The question of cess, however, presents greater difficulties. The tenancy appears to have been created by a patta (EX.E) of the year 1308 Fasli. The rent payable for the lands is not lump rental, but is fixed at a rate per bigha, and would vary from year to year according to the area cultivated in a particular year. Learned Counsel for the defendant appellant has placed reliance on two judgments (EXS. 3 and B) and also on the decree (Ex. c). The judgment (Ex. 3 ) and the decree (EX. c) no doubt show that the defendant was held to be an occupancy raiyat in respect of the lands in question. The judgment (Ex. 3) further shows that the rate of rent per bigha, in accordance with the stipulations of the patta of 1308, is payable in respect of only the culturable lands found on measurement every year. The judgment (Ex. B) shows that in a rent suit of 1921 cess was allowed at six pies per rupee on the annual rent paid per year. The question of the status of the defendant under the Cess Act was not, however, in issue in that suit and there was no discussion of the question in the judgment. The plaintiff, on the contrary, relies very strongly on the schedule of valuation prepared by the Cess Revaluation Officer, subsequent to the aforesaid judgments. This document is exhibit 2 in the record, and shows the defendant as a tenure-holder for the purpose of the Cess Act, and the annual valuation of the entire holding is shown at the sum of Rs. 886- 6-0. The contention of the plaintiff is that the defendant must pay cess as a tenure-holder, that is, at the rate of one anna on the annual value of the land comprised in the tenure, less a deduction calculated at anna for every rupee of the rent payable for the tenure, which is Rs.. 525-2-6. According to the plaintiff's calculation, cess is payable at one anna per rupee on Rs. 886-6-0 less deduction of anna per rupee on Rs. 525-2-6. If calculated in this way, the cess comes to Rs. 38-15-9 a year. Learned Counsel for the plaintiff has also referred to Section 93, Cess Act and has contended that the valuation fixed by the Cess Revaluation Officer is open to revision by the Commissioner or the Board of Revenue, and cannot be interfered with by the Civil Court There is, in my opinion, no doubt that the status of the defendant, for the purpose of the Cess Act, must be considered with reference to the provisions of the Cess Act. As has been pointed out in numerous decisions, the expressions "cultivating raiyat" and "tenure-holder" have a special meaning in the Cess Act, which is different from the meaning attached to them in the Bengal Tenancy Act. The Cess Act defines a cultivating raiyat as meaning a person cultivating land and paying rent therefor not exceeding one hundred rupees per annum. The definition of the expression "tenure" shows that it includes every interest in land, whether rent-paying or not, save and except an estate, and save and except the interest of a cultivating raiyat. Therefore, a "tenure" is, more or less, a residuary interest, not being an estate nor the interest of a cultivating raiyat. On behalf of the defendant-appellant, stress has been laid on the words "paying rent" in the definition of a cultivating raiyat, and it has been contended that inasmuch as the defendant in this case pays rent which varies from year to year and may be less than one hundred rupees in some years, he must be considered to be a cultivating raiyat for those years in which he pays less than one hundred rupees per year. In my opinion, the definition of a cultivating raiyat as given in Section 4 should be read with Section 41, Cess Act which shows the mode of payment of local cess by a holder of an estate, by a holder of a tenure and by a cultivating raiyat. We are not concerned in this case with the holder of an estate. Sub-section (2) of Section 41, Cess Act shows the mode of payment of cess by the holder of a tenure. When speaking of the deduction which the holder of a tenure is entitled to, the expression used is "less a deduction to be calculated at one-half of the said rate for every rupee of the rent payable by him for such tenure." I have underlined (here italicized) the word "payable." Similarly in the case of a cultivating raiyat the expression used is "calculated at the said rate upon the rent payable by him." I have again underlined ( here italicized ) the word "payable." When the definition of a cultivating raiyat talks of "paying rent not exceeding one hundred rupees per annum," it can only mean the rent payable for the land which the person cultivates. The rent payable for the holding in our present case is Rs. 525-2-6; it exceeds one hundred rupees. In this view, it cannot be held that the defendant is a cultivating raiyat as per the definition given in the Cess Act.