BARANASHIBASI MUKERJEE Vs. HARI KRISHNA SHAHA

JUDGEMENT

(1.) THIS appeal arises out of a suit to recover arrears of road cess in respect of certain rent free land held by the defendants within the plaintiffs tenure. The defendants are the appellants. The only point with which we are now concerned is the plea taken by the defendants that the notice required by Section 54 of the Cess Act (Bengal Act IX of 1880) has not been published by the plaintiffs. In the Court of Appeal below the learned Subordinate Judge has found that as a matter of fact the notice in question has not been published. He has, however, come to the conclusion that the defendants are concluded on the ground of res judicata by the decree made in Suit No. 370 of 1908, which was also a suit for arrears of road cess between the same parties. In that suit, however, cesses were recovered in respect of the period from 1311 to 1314. Now the present claim is made under a re-valuation, which the learned Subordinate Judge says took place in the year 1907. It is difficult, therefore, to see how in the previous suit the defendants could have taken the defence which they now put forward and on which they rely in the present suit. There appears to be nothing on the record to show that the cesses claimed in the previous suit were cesses due and payable under the re-valuation of 1907. In the circumstances we are unable to accept the view of the learned Subordinate Judge that the defendants are concluded by the decree in the previous suit. That decree being out of the way, it is clear, and it is not disputed, that under the terms of Section 56 of the Act, the notice required by Section 54 not having been published by the plaintiff, the defendants are not bound to pay cesses upon the basis of the re-valuation of 1907.

(2.) THE result, therefore, is that this appeal is allowed, the decree of the Court below is set aside and the suit dismissed with costs throughout.