BRAJA BEHARI DASS Vs. RAM NARAYAN RAI

JUDGEMENT

(1.) The plaintiff-appellant instituted three suits for recovery of arrears of rent and cess. The defendants, who were recorded in the Record of Rights as tenure holders, at the cess valuation were called upon to file returns as tenure-holders and did so. They were accordingly assessed as tenure-holders on Rs. 565-5 with respect to khewat No. 2 Rs. 122-8 with respect to khewat No. 3 and Rs. 28 with respect to khewat No. 4. As tenure-holders, the amount of cess for which the defendants are liable in respect of these three khewats is at the rate of one anna in the rupee. This was the amount claimed in the plaints. The defendants, however, pleaded that they were in fact occupancy raiyats within the definition of that term given in the Cess Act, inasmuch as the rent of their holding was less than Rs. 100. Both the Courts below have held that the defendants are occupancy raiyats within the meaning of the Cess Act and that accordingly the amount of cess recoverable from them is not at the rate of one anna in the rupee on the annual value of their holdings but at the rate of half an anna in the rupee on the amount of rent which they pay.

(2.) In appeal the plaintiff-appellant relies on the decision of Ross, J. in Kesho Prasad Singh V/s. Ram Swarup Ahir 90 Ind. Cas. 621 : A.I.R. 1926 Pat. 175. In that case the animal rent of the holding of the defendants, according to the cess valuation, was Rs. 95-4, and the rent payable by them was Rs. 31-0-6. The plaintiff claimed to recover from the defendants cess at the rate of 1 anna in the rupee on the annual value of the holding. The defendant pleaded that since their rent was less than Rs. 100 they were, for the purposes of the Cess Act, occupancy raiyats and liable only to pay half an anna in the rupee on the rent payable by them. The defence was accepted in the lower Courts. In appeal it was contended for the plaintiff that the valuation made by the Cess Department was final for the purposes of the Act and that Section 93 debarred that valuation being questioned in the Civil Courts, and that consequently the defendants were debarred from pleading that they were occupancy raiyats and not tenure holders. This contention was upheld by the learned Judge who dealt with the case in this Court. He observed: It is obvious that a great injustice would toe done to the plaintiff (landlord) if the defendants contention were to prevail. The plaintiff has been made liable for cess on a valuation of which one of the Items is the annual, valuation of the defendants tenure. If it were now held that the defendants were not tenure-holders then the liability for this cess will fall on the plaintiff alone through no fault of his but because the defendants had failed to contest the entry. In my opinion, it was foe the Revenue Authorities to decide whether the defendants were tenure-holders or cultivating raiyats for the purposes of the Cess Act.

(3.) This decision is sought to be distinguished by the learned Advocate for the respondents on the ground that in that case the plaintiff had produced the cess valuation roll showing that the defendants had been assessed to cess as tenure- holders. In the present case the copy of the cess valuation roll which Section 35 of the Act requires to be exhibited in the Collectorate is on the record, although it was not marked as an exhibit at the trial. In the judgment of the lower Appellate Court, however, the annual valuation of each of the holdings is stated without any indication of the source from which the figures were derived. As we considered it necessary for the purpose of determining this appeal that the valuation roll; should be taken in evidence, we have admitted the document which is on the record and which has now been marked as Ex. 1 in this Court. Tae decision of Ross, J. is, therefore, not distinguishable from the facts of the present case.