(1.) This is an appeal by the plaintiff against the decision of the learned Eent Suit Deputy Collector of Puri dated 11 October 1933, by which the suit of the plaintiff was dismissed. That suit was instituted for recovery of arrears of rent and cess for the second kist of 1336 and both kists of 1337 and 1 kist of 1338 in respect of the Tanki Bahel tenure of the defendants in touzi No. 268 lying in certain villages the tenure has a large area of about 3170 acres. The principle question for decision in the present appeal is whether the claim of the plaintiff so far as road cess is concerned can be maintained and also whether the defendants can be allowed to claim a set-off for the amount of road cess which they say they have paid erroneously for about 10 years prior to the institution of this suit. A preliminary point as to the maintainability of the appeal was also raised on behalf of the respondents which will be considered in its proper place later on.
(2.) The facts necessary for determination of the controversy in the appeal may now be shortly stated. The plaintiff instituted the suit, referred to above, against a very large number of tenure-holders, the number being about 2000. The arrears of rent and cess claimed for the period in suit were stated to be recoverable jointly and severally from the defendants. On 8 August 1932, six of the defendants namely defendants 4, 7, 19, 48, 164 and 302 appeared and filed a written statement. In paragraph 10 of the written statement they stated that as they are the kartas and mamlatkars amongst all the defendants they have filed the written statement on behalf of all the defendants. In other words they attempted to defend the suit not only on their behalf but as representing the other defendants also.
(3.) The Court did not allow the written statement to be treated as a representative written statement with the result that the written statement remained as a written statement filed on behalf of these six defendants only, the other defendants remaining unrepresented and the case proceeded ex parte against them. The plaintiff claimed rent at Rupees 1994-9-10 per annum and road cess at the rate of Rs. 479-14-4 being the rate of cess for the tenure included in the annual valuation of 1902 for the period 1337 to the first kist of 1338; but for the second kist of 1338 the plaintiff claimed cess at the rate of Rs. 876-1-6 on the basis of a revaluation in the current year. The defendants resisted the claim of the plaintiff so far as the road cess for the period ending the first kist of 1338 is concerned on the ground that though there was a revaluation in the year 1917 but in that year the tenures in suit escaped assessment and therefore the plaintiff was debarred from suing for cess for these years at the old valuation of 1902 which was superseded by the valuation of 1917. The plaintiff replied that it was true that there was a revaluation in 1917, but as there was no revaluation of the tenures in suit in 1917 the valuation of 1902, which was not interfered with, must be held to be payable by the defendants for these tenures.