JOGENDRA KRISHNA BANERJI Vs. ADMINISTRATOR-GENERAL

JUDGEMENT

(1.) This is a second appeal by some of the defendants in a suit for recovery of drainage cess. The following facts are relevant to this appeal. R.S. 94 of 1932 was filed by a zamindar named Rani Harsamukhi in the Court of the Munsif at Baruipur on 15 April 1932 against the present defendants making the Administrator-General of Bengal as executor to a certain estate of the pro forma defendant. The claim was for cess under the Bengal Sanitary Drainage Act of 1895 for a period of four years before suit in respect of certain Mouzas in Touji 109 R.S. This plaint was returned and subsequently filed before the proper Court, namely the Court of the Subordinate Judge, Alipore. On 8 July 1932 the Administrator-General of Bengal was made a co-plaintiff on his application. He then put forward his own claim, namely cess for a period of 11 years in respect of two other mouzas not mentioned in the original plaint of Harshamukhi. The entire claim was decreed ex parte on 5 November 1932. The present appellant then appealed to the District Judge. The District Judge modified the decree of the first Court by limiting the cess to a period of four years before suit. This judgment was passed on 18 April 1933. The Administrator-General appealed to this Court being Second Appeal No. 1663 of 1933. This appeal was heard by Henderson and Nasim Ali JJ., who passed judgment on 9th January 1936 remanding the suit for trial de novo to the Court of first instance after giving both parties opportunity of showing that the drainage cess was actually ascertained. At the new trial the present appellants for the first time filed written statement objecting to the claim of the Administrator-General for cess in respect of two mouzas not named in the original plaint of Harsamukhi and also objecting to the claim for a period of more than four years.

(2.) The Courts below have decided against the present appellants. As regards the objection regarding the mouzas not named in the original plaint, the learned District Judge has held that the appellants are not entitled to raise this question as it was not raised before. As regards the point of limitation, the Courts below have taken the view that by the remand judgment passed by this Court on 9 January 1936, there was a decision to the effect that the plaintiffs were entitled to the drainage cess from the time at which it was actually ascertained. As regards the objection to the claim of cess in respect of mouzas not named in the original plaint of Harsamukhi the learned advocate for the appellant in this Court has pointed out that the objection was made in the written statement filed by the appellants. At the same time, he has stated that he does not wish to press this point. Therefore the decision of the lower Appellate Court on this point must be accepted. The present appeal has been pressed on the ground of limitation and it is contended that the plaintiff is not entitled to claim drainage cess for a period of more than four years. As mentioned already, the Court below took the view that the matter was concluded by the remand judgment of 9 January 1936, but it seems to us that this was not the effect of that judgment. That judgment mainly directed that the time at which the drainage cess was actually ascertained should be found, but it did not decide any question of limitation. No doubt, it was possible for the parties to raise the question of limitation expressly and this Court might then have taken a view which would have made the remand unnecessary. The fact remains that the question of limitation was not decided.

(3.) Since this judgment, there has been another judgment passed by a Bench of this Court on 9 April 1937 : see the case in Administrator-General of Bengal V/s. Jnanadayini Devi . In that case the facts are exactly the same as in this case. The amount due by the tenure-holders in respect of drainage cess was not ascertained when the original assessment was made in 1920. The Record of Eights was finally published in 1930 and therein the amount payable by the tenure-holders was recorded. The suit by the proprietor for the recovery of drainage cess was instituted in 1932 for the recovery of the cess for the period from 28 September 1920 to 14 April 1932. Jack J. pointed out that although the amount due from the tenure-holders had not been previously settled, this could not affect the question of jurisdiction. As a matter of fact, in 1924, the Administrator-General brought a suit for a declaration that he was not liable to pay drainage cess and this suit ended in a compromise in 1926 when an agreed sum was found to be payable. It was held that the fact that the amount due from the tenure- holders had not been fixed by the Government would not affect the limitation as regards the tenure-holders and the suit could be decreed only for a period of four years up to the date of the institution of the suit. It is contended by Mr. Basu for the respondents that the zamindar was not in a position to sue for drainage cess payable by the tenure-holder until the amount payable had been recorded by the Collector. In the previous suit, Jack J. pointed out that it was possible for the zamindar to bring a suit against the tenure-holders for the amount which was considered to be due from him. The ratio of calculation is laid down by Section 23, Bengal Sanitary Drainage Act, 1895. It is pointed out that the provisions of the drainage scheme as laid down in Ch. 1, Part 2 of that Act show that once a cess valuation has been made it is not, specially provided that that amount payable by the tenure-holder for drainage cess would be settled by the Collector and by nobody else. In the later Act (Act 6 of 1920) there is a provision, namely Section 19 which lays down that the Collector has to determine the amount recoverable from, each landlord or tenant and enter such, amount in a detailed statement. Such express provision does not occur in the Act of 1895. In the present case, I see no reason why the same conclusion should not be reached as in the case which was decided! by this Court on 9 April 1937 to which I have already referred.