HARENDRA KUMAR RAI CHOUDHURI Vs. SECYOF STATE

JUDGEMENT

(1.) The plaintiffs are 7 annas and odd cosharers in a zemindari, and 16 annas putnidars under the zemindars. Certain lands have accreted to the Zemindari, and diarah proceedings were taken by the Government for the purpose of the resumption and settlement of the accreted lands, and the assessment thereof with revenue under Regulation 7 of 1822 and 1 of 1825, Act 31 of 1858, Act 9 of 1847, and Ch. 10, Ben. Ten. Act. The zemindars refused to take settlement of the accreted lands, and were granted malikana in respect thereof. The Government then took khas possession of the accretions, and in the Record-of-Eights the plaintiffs are recorded as the tenants of the separate diarah mahals Nos. 13618, 13116, which had been formed out of the accreted lands. Thereafter five certificates under the Public Demands Recovery Act (3 of 1913) were issued and notices were served upon the plaintiffs for the recovery of arrears of rent and cesses alleged to be due from them as tenants of these diarah mahals under the Government. The plaintiffs under protest paid the amounts demanded under the certificates on 28 October, 1920, 26 March 1922 and 31 January 1924. On 21 July 1924 the plaintiffs brought the present suits for a declaration that they are not liable for the rent and cesses in respect of these two diarah mahals, and that the certificates were issued ultra vires and were null and void. The plaintiffs also sought to recover by way of refund the sums paid thereunder to the Government.

(2.) Three defences were raised by the Secretary of State for India: (1) That the plaintiffs had failed to bring the present suit within six mouths of their <JGN>Page</JGN> 2 of 4 petition denying liability under Section 9, Public Demands Recovery Act, and, therefore, under Secs.34, 35 and 37 of the Act the suits were barred by limitation. (2) That as the plaintiffs had failed to bring a suit within the time limited by Section 104H, Ben. Ten. Act the plaintiffs in the present suits were precluded under Section 104J and Section 111A from challenging the correctness of the entries in the Record-of-Rights to the effect that they ware tenants of the diarah mahals under the Government and were liable to pay the rent, therein stated to be settled. (3) That on the refusal of the zemindars to take settlement of the lands that had accreted to their zemindari the Government was entitled to treat the plaintiffs as tenants under Government of the new estates that had been created out of the accretions, and to recover rent and cesses in respect of the same from the plaintiffs.

(3.) The first contention on behalf of the defendant raised the question whether the only mode in which the validity of a certificate issued under the Public Demands Recovery Act, and the liability of the certificate debtor to pay the public demand thereunder can be challenged is by resorting to the machinery provided in the Act.