KUMAR KAMALARANJAN ROY Vs. SECRETARY OF STATE

JUDGEMENT

(1.) The appellant in these consolidated appeals is the purchaser of a zamindari estate sold under the provisions of Act 11 of 1859 for the recovery of arrears of land revenue. The question is whether he is liable, after he annulled, as he was entitled to do under Section 37 of Act 11 of 1859, the under-tenures, for the unpaid balance of the costs of the preparation of a Record of Rights of the estate, which had been duly apportioned on the patnidars of the estate before the purchase by the appellant of the estate and the annulment of the under-tenures. The appellant was plaintiff in the action; he had paid under protest the amount demanded from him by the Government and was claiming repayment. The facts are short and not in dispute. The estate in question is in the District of Murshidabad. In 1923 settlement operations were commenced and these were completed in November 1928. Thereupon the provisions of Sec. 114, Ben. Ten. Act, 1885, came into effect. These provisions, so far as relevant, are as follows : Section 114 (1).-When the preparation of a Record of Rights has been directed or undertaken under this Chapter, in any case except where a settlement of land revenue is being or is about to be made, the expenses incurred in carrying out the provisions of this Chapter in any local area estate, tenure or part thereof (including expenses that may be incurred at any time, whether before or after the preparation of the Record of Rights, in the maintenance, repair or restoration of boundary marks and other survey marks erected for the purpose of carrying out the provisions of this Chapter), or such part of those expenses as the Local Government may direct, shall be defrayed by the landlords, tenants and occupants of land in that local area, estate, tenure or part in such proportions and in such instalments (if any), as the Local Government, having regard to all the circumstances, may determine. (3) The portion of the aforesaid expenses which any person is liable to pay shall be recoverable by the Government as if it were an arrear of land revenue due in respect of the said local area, estate tenure or part.

(2.) The settlement having been completed the costs which in the first instance were borne by the Government, were apportioned in accordance with an order of the Governor-in-Council dated 12 June 1928, as between landlords and raiyats and in particular permanent tenure holders whose rent was fixed in perpetuity were to pay their own share of the costs and that of the landlords superior to them. The patnidars were accordingly liable to pay the whole of the 15 annas per acre share which was apportioned as the liability of the landlords in respect of the total cost of Be. 1-8-0 per acre. The raiyats' share was thus 9 annas per acre.

(3.) On 28 March 1930, the appellant purchased the estate in question, which was No. 7 in the Murshidabad Collectorate, and lay within the limits covered by the Record of Rights, in a revenue sale held under the provisions of Bengal Act 11 of 1859. At that time the patnidars had paid some part of the amounts apportioned on them, but some balances were still unpaid. In respect of these unpaid balances, the certificate procedure under the Bengal Public Demands Recovery Act 1913 came into force, in particular S. 8, which provides that on the service of notice of a certificate under S. 7 of the Act, the certificate-debtor is debarred from transferring or delivering any of his immovable property in the district in which the certificate is filed or any interest in that property, and that the amount due from time to time should be a charge on the immovable property of the certificate-debtor, wherever situate, to which any subsequent charge was postponed. It appears and is not contested that certificates complying with the Act were duly signed and filed by the certificate officer in respect of the arrears of the apportioned costs and notices duly served on the defaulters. The zamindars duly paid such amounts as were apportioned against them. Thereafter in 1930 the appellant purchased the estate under S. 37 of the Act 11 of 1859 which is in the following terms :