TIRKHA RAM Vs. CHHOTEY

JUDGEMENT

(1.) The decision in this appeal must turn on the question as to whether the chaukidara dues claimed by the plaintiff-appellant was house rent due from the defendant-respondent or a cess of the nature contemplated by Section 86 of the Land Revenue Act (3 of 1901). Both the Courts below have differed on the point. The trial Court held that the amount claimed was not a cess and it accordingly passed a decree in the plaintiff's favour. The lower appellate Court has held that the amount claimed was a cess and has dismissed the plaintiff's claim.

(2.) The plaintiff's case was that he was entitled to chaukidara dues claimed by him on the basis of a custom obtaining in the village. The documentary evidence relating to the chaukidara dues consisted of the wajib-ul-arz of 1860 prepared by Munshi Mohar Singh and of the wajib-ul-arz of 1870 prepared by Munshi Nisar Ali. Paragraph 9 of the wajib-ul-arz of 1860 runs thus: Two persons, Shadi, son of Kallu and Tula son of Yad Ram, are appointed as Chaukidars for the safety of the village at Rs 17 annually, Their salaries are contributed to by the ryots in each crop exempting the houses of widows and mendicants, and if this collection comes short, the zemindars of the village make up the balance.

(3.) It was also recorded in the wajib-ul-arz of Munshi Nisar Ali that chaukidara dues are realized from the ryots in the village. It appears from para. 15 of the wajib-ul-arz of Munshi Mohar Singh that no house rent or parjawat was realised from the tenants, nor were the tenants liable to make any payment for the occupation of their houses. In the wajib-ul-arz prepared in the recent Settlement of 1896-1897 there is no mention of any parjawat being realizable from the ryots.