BALWANT SINGH Vs. SHANKAR

JUDGEMENT

(1.) THE plaintiff appellant is the zamindar of the village of Radhakund in the district of Muttra and the defendant occupies a house in the abadi of that village. THE claim of the plaintiff is to recover three years rent of the house so occupied by the defendant. Under the wajib-ul-arz of the village the zemindar is declared to be entitled to one taka (that is, 6 pies) per month for every house from the occupants of the village and also from the owners of shops and temples. THE defence set up by the defendant was that this rent had never been paid and was not leviable by the plaintiff. THE Court of first instance decreed the plaintiff's claim and this decree was affirmed on appeal, the lower Courts finding that the alleged custom was proved. On second appeal, however, the learned Judge of this Court allowed the appeal, reversed the decision of the Courts below and dismissed the plaintiff's suit. [See Weekly Notes, 1907, p. 247, S.V. Shankar V/s. Balwant]. THE judgment is largely based on the meaning of the word "gharghanna" which is used in the wajib-ul-arz as descriptive of the money payable to the zamindars in respect of houses in the village. THE learned Judge observes that the word "gharghanna" is understood to be a house-tax; For this no authority is cited. He also states that the contention on behalf of the defendant was that a house-tax is a cess, and that before a zamindar can recover a cess, it must first find a place in the list prepared by the Settlement Officer and be sanctioned by the Local Government as provided for by Section 66 of Act No. XIX of 1873. THE , learned Judge then refers to Section 56 and Section 86 of the Laud Revenue Act, III of 1901, and holds that, reading these two sections together, it was the intention of the Legislature that no demands apart from rent by a landlord against tenants should be recognized in the Civil Courts which had not been recorded by the Settlement Officer and sanctioned by the Local Government as regular cesses. Now in the first place we may point out that the only rent demanded by the zamindar in respect of the occupation of houses in the abadi of the village is this charge of half an anna per month. No other rent is payable. Section 56, therefore, has no application, because it refers to cesses which are payable by tenants in addition to the rent paid by those tenants. THE charge in question is not a charge in addition to any rent. It is in fact the rent paid in respect of the site upon which the house of the occupier stands, or in other words a ground rent. Section 86 has also, we think, no application, for this reason, that the reservation sanctioned by the wajib-ul-arz of a monthly payment is the reservation of a ground rent and not a cess within the meaning of the Revenue Act. We think that the learned Judge of this Court was wrong in the interpretation which he put upon the word "gharghanna" as used in the wajib-ul- arz, and that that word means nothing more than the rent payable in respect of the houses in the abadi of the village and is in no sense a house-tax or cess, as laid down by him. We therefore allow the appeal, set aside the decision of the learned Judge of this Court and restore the decree of the lower appellate Court with costs in all Courts.