RAJA RAJESWARA MUTHURAMALINGA SETHUPATHI Vs. MAHALINGA RAJU

JUDGEMENT

(1.) The case is one of first impression, but as the arguments have been addressed to me fully on the points arising for decision, I do not think that any useful purpose will be served by reserving my decision in this case. The suit was brought by a landholder to recover the road cess, paid by him for two faslis. A decree was passed for half of the road cess paid in fasli 1322. As regards the other half the Lower Court held that the landholder himself was bound to pay it. As regards fasli 1321, the District Munsif held that the claim for half of the cess payable to the landholder was barred by limitation. In this Court, Mr. Govindaraghava Aiyar does not claim that the whole of the road cess was payable by the tenant, but confined the claim to half of the cess paid by his client. The only question for decision is whether the Lower Court is right in the view that the payment made in 1321 by the landlord cannot be recovered as it is barred by limitation. Before proceeding further, I must express my indebtedness to Mr. T.M. Krishnaswami Aiyar for the very able manner in which he has assisted me in this case on behalf of the counter-petitioner who has not been represented in this Court.

(2.) There are 3 points for consideration. The first point is how does the obligation to pay the road cess by the tenant arise ? I agree with Mr. Govindaraghava Aiyar that it is under the Act that the obligation arises. It is not a common law duty. It is true that in the definition of rent given in Section 3, (Clause) 11 of the Estates Land Act, any local tax or cess payable is included, but the proportion to be paid by the tenant is fixed only by the Local Boards Act. I must take it that the liability to pay half of the cess is created by that Act: It is not by virtue of the Estates Land Act that the landholder is entitled to claim although he is entitled to tack on the local cess to the rent due from the tenant. The next question is what is the nature of the payment to be made. There can be no doubt that it is in the nature of rent. The definition to which I have already referred shows that the tenant is bound to pay the cess along with the rent and the landlord is entitled to exercise., all the provisions of the Act in the collection of it. Under the Estates Land Act, a limitation of 3 years is fixed for the collection of the rent including the road cess. Under the general Limitation Act, there is only a limitation of 3 years. Although the suit is for arrears of the local cess, I have very little doubt that the nature of the liability on the part of the tenant is of the same character as if he was called upon to pay rent on his holding.

(3.) The last, question which is of considerable importance relates to limitation. The broad proposition was advanced by Mr. Govindaraghava Aiyar that wherever there is a statutory liability to pay a certain sum of money, the residuary Article 120 should apply to it and not the specific articles dealing with the question: and he relied upon the observations of Petheram, O.J., in The Secretary of State for India in Council v. Guru Prasad Dhur (1892) I.L.R. 20 C. 51 in support of his position. In Secretary of State for India in Council v. Guru Prasad Dhur (1892) I.L.R. 20 C. 51 the suit was to recover the surplus of sale proceeds from the Secretary of State who had sold the holding for arrears of revenue. The learned Judges who constituted the Full Bench came to the conclusion that the Secretary of State was not a trustee and that Article 62 has no application. Chief Justice Petheram says that " the Limitation Act does not prescribe any period of limitation due under a statutory liability to pay it, so the suit is, I think, within Article 120." With all respect I am unable to say why a statutory liability should not bring a claim under the specific articles if otherwise the words are capable of covering it. In the present case, as was pointed out by Mr. Kriahnaswami Aiyar, I think that Article 61 is applicable. Under that article, money must have been paid by the plaintiff for the defendant. Mr. Govindaraghava Aiyar contended that as the defendants were not bound to pay to the Government, this article has no application. I am unable to follow this argument. Under Section 73 of the Local Boards Act, the landlord is given the power under the second proviso to recover from the tenant one-half of the amount payable in respect of the land occupied by the tenant. As I have said at the outset, it is under this statutory liability that the plaintiff seeks to recover the amount. Section 76 makes it incumbent upon the tenant to pay the rent to the landlord. "Otherwise I see no provision in the Estates Land Act or the Local Boards Act which compels the tenant to pay the local cess to the landlord. If the amount is payable by the tenant, I am clear that Article 61 of the Limitation Act would cover the case.