Patna High Court
Ram Ranbijaya Prasad Singh vs The State Of Bihar Through Collector Of ... on 7 August, 1950
Equivalent citations: AIR1950PAT557, AIR 1950 PATNA 557
JUDGMENT Reuben, J.
1. This appeal by the plaintiff is directed against a decree of the Additional Subordinate Judge, Arrah, dismissing Title suit No. 27/3 of 1938-43.
2. The appellant is the proprietor of three estates, Umarpur Diara, tauzi No. 1455, Sarwanpur, tauzi No. 14229, and Belsipah, tauzi No. 14230, borne on the revenue roll of the district of Shababad. Since a long time there were disputes occurring between the Babus of Narhi, now represented by the defendants second party, and the proprietors of the Damraon Raj, the predecessors-in-interest of the appellant. Finally, in 1907 an agreement was arrived at through the intervention of the local Government officers, by which the Narhi Babus agreed to pay Rs. 10,000, as rent to the Dumraon Raj as tenants of lands lying in villages Rai Kishunpatti, Sarwanpur, Palia, Belsipah, Kulharia, and Sahpur, the amount to be realised by the Collector of Shahabad and to be paid by him to the proprietor of Dumraon Raj. The agreement was confirmed by a subsequent proprietor, Kesho Prasad Singh Bahadur, with certain modifications and is still in force. In the year 1932, in the course of revaluation proceedings under the Cess Act, 1880 (Bengal Act IX [9] of 1880), cess was assessed on tauzi No. 1455 on an asset value of Rs. 76,428-16-0, which included the sum of Rs. 10,000 payable as rent by the Narbi Babus.
3. The present suit was brought by the appellant challenging the assessment as ultra vires on the grounds ; (i) that the villages in respect of which the rent of Rupees 10,000 is payable do not lie wholly in tauzi No. 1455, but are distributed among the three tauzis of which the appellant is the proprietor, and (2) that cess was not assessed on the Narbi Babus and seeking to recover with interest an amount of Rs. 21,664-15-0 realised by the Government from the appellant on account of the cess demand for tauzi No. 1455 for the period June 1932 to January 1936. Among other reliefs, the appellant asked:
"That a decree for refund of the amount with damages claimed and future damage be passed in favour of the plaintiff or decree for such amount as the Court thinks proper be passed against defendant 1 or defendant 2nd party."
The plaint was filed on 22nd September 1938 and the Government was impleaded as defendant 1 thus : "Secretary of State for India in Council through the Collector of Shahabad."
4. Under Section 179, Government of India Act, 1935, and Section 79, Civil P. C., as adapted by the Government of India (Adaptation of Indian Laws) Order, 1937, the suit should have been filed either against the Province of Bihar or the Secretary of State. Under Section 80, Civil P. C., as adapted, the notice under Section 80 was required to be served in the former case on a Secretary to the Provincial Government or the Collector of the district and, in the latter case, on a Secretary to the Central Government, the Political Secretary and a Secretary to the Provincial Government. In the present case, the notice under Section 80 was served on the Collector of Shahabad. The mistake in impleading the Government under the proper appellation was not corrected till 15th December 1941, when the bearing of the suit had actually been concluded and the case was being argued. The suit them proceeded against the Province of Bihar.
5. In the result, the learned Subordinate-Judge, while holding the assessment to be ultra vires by reason that the Collector included among the assets of the estate properties lying outside the limits of the estate, felt himself constrained to dismiss the suit in limine as not maintainable for want of notice under Section 80 Civil P. C.
6. It has been strenuously contested before us that the notice under Section 80 which was served on the Collector of Shahabad must be taken as a valid notice on the Province of Bihar under Section 80 on the ground that, substantially, the plaintiff made clear his intention to sue the Province of Bihar, and that the written statement filed by the Collector showed that there was no misunderstanding on the point and no objection was taken by the Collector regarding the want of notice under Section 80.
7. To deal with this contention, it is necessary to consider, first of all, what was the legal position at that time as to the correct appellation under which the Government should have been impleaded in the suit, because, in the course of argument before us, learned counsel for the appellant urged that, the cause of action having arisen previous to 1st April 1937, the date of the commencement of Part III, Government, of India Act, 1936, the suit was governed by Section 79, Civil P. C., as it stood previous to that, date and, therefore, the suit was rightly instituted against the Secretary of State in Council. He bases this contention on the words "subject to the provisions of Sections 179 and 185, Government of India Act, 1935," which occur in the adapted Section 79 of the Code. He regards these words as taking outside the scope of Section 79 of the Code cases falling within Section 179, Constitution Act. I find myself unable to read the adapted Section 79 in this sense. To me it appears that the adapted section applied to all claims by or against the Crown, whether the suit could be brought under Section 179 of the Constitution Act or not. It was the general provision which prescribed the manner in which suits by or against the Crown should be brought. Such suits lay :
(1) if the Central Government was concerned, against the Governor-General-in-Council or then Federation, as the case might be ;
(2) if the Provincial Government was con-earned, against the Province ; and (3) if the Crown representative was concerned against the Secretary of State.
8. This was independent of the question whether the cause of action arose before or after 1st April 1937. Section 179 provided an additional manner of suing where the cause of action arose before 1st April 1937, namely that, if but for the Constitution Act the suit might have been brought against the Secretary of State in Council, it might now be brought against the Secretary of State. It is noticeable that the section makes a distinction between the Secretary of State in Council and the Secretary of Stale. Section 79 of the Code as it stood before the adaptation spoke of the Secretary of State for India in Council. It is unlikely, therefore, that the old procedure was intended to apply to suits instituted against the Secretary of State under Section 179. Even if the argument of learned counsel was accepted, it would not help him in the present case, because Section 80 as adapted makes no distinction between a suit instituted against the Secretary of State under Clause (c) of the adapted Section 79 of the Code and one instituted against the Secretary of State under Section 179 of the Constitution Act. In either of such cases, the notice under Section 80 must be served on a Secretary to the Central Government, the Political Secretary and a Secretary to the Provincial Government. Admittedly, in this case the notice was served only on the Collector of Shababad.
9. To come back to the proposition first enunciated, I have mentioned that the suit was instituted against the Government under the appellation : "Secretary of State for India in Council through the Collector of Shahabad." It has been contended that the lawyer who used this expression when drafting the plaint had before him Section 179 of the Constitution Act and the adapted Section 79 of the Code and was attempting to give effect to these sections in the beat way that he could, that he understood the suit as being outside the scope of Section 79 by reason of the cause of action having arisen prior to 1st April 1937 and did not consider the appellations given in Section 79 as a guide to the correct appellation in this case. His intention, it is said, was to draft a plaint against the Province of Bihar and, in the light of Section 179 of the Constitution Act, he did so by impleading the Secretary of State in Council, indicating the intention of proceeding against the Province by adding "through the Col-lector of Shahabad." Section 179, however, clearly draws a distinction between the Secretary of State and the Secretary of State in Council; see, for instance, Sub-section (2) of that section, which expressly substitutes one expression for the other in pending legal proceedings, and the lawyer could not have impleaded the "Secretary of State in Council" if he intended to give effect to Section 179. What he was evidently doing was that he was following the unadapted law, which provided for suits against the Secretary of State in Council. The impleading "through the Collector of Shahabad" does not help in any way. Under unadapted Section 80 of the Code, the notice on the Secretary of State for India in Council could be served on the Collector of the District and the practice was that action on behalf of the Secretary of State in the Court was generally taken through the Collector of the district. The expression used by the lawyer was quite consistent with the law as it stood prior to the adaptations.
10. In marked contrast to the appellation; used in the plaint is the appellation under which the written statement was filed by the Collector. It purports to be a written statement not on behalf of the Secretary of State for India in Council but on behalf of the Secretary of State for India, showing clearly that it was filed in consciousness of the changes introduced by the Constitution Act of 1935. These changes, as I have shown, provided for a suit in the circumstances of the present case either against the Province or against the Secretary of State. The Collector appeared and filed a written statement on behalf of the Secretary of State; that is to say, he treated the suit as one against the Secretary of State, not as one against the Province. In this written statement, the express point of the non-service of notice under Section 80 was not taken, the Collector apparently being satisfied by taking in general ground that the suit as framed was not maintainable. Perhaps this objection relates to the fact that the suit was framed against the Secretary of State in Council instead of being framed against the Secretary of State, a form in which the plaint remained, until on 15th December 1944 the Secretary of State disappeared altogether and the Province of Bihar came into the picture,
11. Much of our time was taken by a discussion as to how far the Province was bound by this written statement and whether, in the absence of any mention of the want of notice under Section 80, it should be held that the notice had been waived. Tbe argument was based on a mistake in the paper book The impression given by the paper-book as it stands is that after the amendment made on 15th December 1944 the suit proceeded on the basis of the written statement filed by the Collector on behalf of the Secretary of State for India and printed at P. 20 of the paper-book Actually, on looking into the original order-sheet of the Subordinate Judge, I discovered a different state of things. The Subordinate Judge, treating the Secretary of State for India and Province of Bihar as two separate entities, directed the suit to be dismissed with costs as against the Secretary of State for India and the Province of Bihar to be substituted, and ordered the plaintiff to "take steps against new defendant." Thereupon, fresh summonses in the suit were issued and served upon the Province and, on 17th February 1945, the Province appeared and filed a written statement, more or less on the lines of the written statement already filed by the Collector of Shahabad on behalf of the Secretary of State but including au objection about the failure to serve a notice under Section 80. Through an oversight, which is understandable in view of the enormous size of the record caused by the large number of written statements filed by the members of the defendants second party, who number over six hundred, this written statement was overlooked in preparing the paper book. In view of this written statement, the contention about the waiver of notice under Section 60 was given up.
12. Nevertheless, it was contended that the Secretary of State, on whom the notice was issued, represented the Province and the notice was a valid notice on the Province under Section 80, Learned counsel urged that, under Section 179, Constitution Act, the Secretary of State is merely the Province in another guise and not a separate entity. Again, I find myself unable to accept the contention. This section appears to me to relate to three entities; the Federation, the Province and the Secretary of State, the third of whom may in appropriate circumstances be sued instead of one or both of the first two. One indication of the existence of a distinction between these entities is contained in the effect of a decree in a suit against one or other of these entities. Where there is a decree of Court against the Federation or the Province, the decree will be enforceable as a matter of course against the revenues of the Federation or the Province as the case may be. Where, however, the decree is against the Secretary of State, it will be for the Secretary of State to determine out of which revenues, Federal or Provincial, the decree shall be satisfied. In doing go he is not confined to the test which, under Section 179, Constitution Act, and Section 79 of the Code, will decide whether the suit should be against the Federation or the Province. How then can it be said that he merely represents the Province and is not a separate entity ? Reliance has been placed by learned counsel on Kanailal Kripasankar v. Governor-General in Council, 46 C. W. N. 18, as an authority that this is merely a case of a misclescription of the defendant and that the defect in the plaint was removed with retrospective effect by the substitution of the Province of Bihar for the Secretary of State for India in Council. There, as here, the suit was instituted against the Secretary of State in Council in ignorance of the adaptation of Section 79, Civil P. C. It is not clear from the report when the cause of action in the case arose whether before or after 1st April 1987. Henderson J. emphasised that from the commencement it was clear that the plaintiff was seeking relief against the Central Government. He stressed the fact that, in the first written statement signed by the Collector, "there was no suggestion that there was any dual personality" and the case proceeded as a case of misdescription and the Governor-General in Council was actually awarded and had accepted substantial costs on this basis at the time when the plaint was amended. Henderson J. pointed out that it was only in the second written statement that the objection of a dual personality was raised. These features are absent here. As I have shown, the first written statement clearly relates to the changed law and is filed on behalf of the Secretary of State, one of the two entities who could have been sued in this case. The present case appears rather to be on par, with the East Indian Railway Co. v. Ram Lakhan Ram, 6 P. L. T. 415 : (A. I. R. (12) 1925 Pat. 37), in which Das J. observed :
"But in my opinion, there is all the difference between the misdesecibing a partly intended to be sued and suing a wrong party."
a decision which was followed in Agent, Bengal Nagpur Railway v. Behari Lal Dutt, 62 Cal. 783 : (A. I R. (12) 1935 Cal. 716), distinguishing another decision relied upon by learned counsel before us, namely. The Saraspur Manufac-turing Co. Ltd. v. B. B. & C. I. Rly. Co., 47 Bom. 785 : (A. I. R. (10) 1923 Bom. 452).
13. Admitting for the sake of argument that the Province of Bihar is a separate entity from the Secretary of State, it was contended that nevertheless the notice under Section 80 issued in this case is a sufficient notice to the province under the provisions of Section 80. Reliance was placed in this connection on Bholaram Shibdhan, Firm v. Governor-General in Council, A. I. R. (36) 1919 Fat. 416, in which it was held that Section 80 does not require the notice to be addressed to the Governor-General in Council and it is sufficient if the notice is directed to the official authorised by Section 80 to receive the notice. Here, it is urged, the Collector was empowered to receive the notice on behalf of the Province of Bihar. The answer to the argument is to be found in the case of Governor-General in Council v. T.M. Krishnaswami Pillai, A. I. R. (33) 1946 Mad. 866 ; (I. L. R. (1947) Mad. 36) which was distinguished in the case just cited. In that case, the notice was held not to comply with the requirements of Section 80 by reason of not stating the relief which the intending plaintiff would claim, the ground being that the notice spoke of a suit to be instituted "against the Secretary of State." That was a case, I should emphasise in which the cause of action arose after 1st April 1937, so that the suit lay only against the Governor-General in Council. Neverthelass, the Secretary of State and the Governor-General in Council were taken to be two different entities. In the case before us, as the notice Ex. 8 informs the Collector that the suit is to be brought against the Secretary of State in Council, and it was possible for the plaintiff to sue either the Province or the Secretary of State. In these circumstances, it cannot be held that the relief to be claimed was sufficiently stated within the meaning of Section 80 of the Code.
14. On the merits, also, it appears to me that the suit must fail as against the Province of Bihar. The provisions for the assessment of cess are contained in the Cess Act, 1880 (Bengal Act IX [9] of 1880). The Act makes liable to the payment of cess all immovable property situate in any district or part thereof, the term "immovable property" including land, and all benefits to arise out of land (Sections 5 and 4). As regards land, this cess is to be assessed on the ''annual value", such annual value to be ascertained as prescribed in the Act (Section 6), By "annual value" is meant the total rent which is payable or, if no rent is actually payable would on a reasonable assessment be payable during the year by all the "cultivating raiyats" of the land, estate or tenure, or by other persons in the actual use and occupation thereof (Section 4). The term "cultivating raiyat" which is relevant in connection with the defence of the defendants second party, means a person cultivating the land and paying rent therefor not exceeding Rs. 100 per annum (Section 4). It appears from this that the "annual value" is intended to be the total of the rents which are pay able or would on reasonable assessment, be payable by persona actually cultivating the land. Tbe revaluation in this case was made under chap. II of the Act. Ordinarily, proceedings under this Chapter commence with an order by the Board of Revenue directing revaluation to be made (Section 12). Thereupon, the Collector of the District is required to issue a proclamation requiring every holder of an estate or tenure which is liable to pay an annual amount of revenue or an annual amount of rent exceeding one hundred rupees, and every holder of a revenue free estate or rent-free tenure, the gross annual rental of which exceeds one hundred rupees, severally to lodge at the office of the Collector within one month a return of all lands comprised in his estate or tenure giving certain particulars (Section 14). The particulars are: (1) details of lands in the actual cultivation and occupation of the person submitting the return with an estimate of the annual value, (2) details of lands held by cultivating raiyats paying rent direct to the person submitting the return, their names to be given separately stating the area occupied by each and the rent paid by him and assessable to cess, (3) details of the tenure-holders paying rent directly to the person submitting the return, giving details as in case (2), and (4) similar details of lands included in the estate or tenure held rent-free by persons other than the person submitting the return. If no return is made in obedience to the proclamation, the Collector is required to cause a notice to be served on the defaulting proprietors or tenure, holders (Section 16). If there is still a default, the Collector is empowered to determine the annual value of the estate or tenure by such ways and means as to him seem expedient (Section 31). When all the preliminaries have been completed, the Collector shall cause to be prepared from the returns furnished to him and from the valuations made by himself in accordance with the Act a valuation roll of each estate within the district and of the tenures therein comprised, noting thereon for each estate the amount of revenue annually payable to Government (Section 34), These rolls are then to be published as prescribed in the Act (Section 35). The valuation made by the Collector is open to revision by the Commissioner and the Board of Revenue (Section 93) and to a certain extent by the Collector himself (Section 37). Subject to this, the revaluation shall remain in force for a term of five years and thereafter until another revaluation and assessment in substitution therefor shall come into force (Section 36).
15. Apart from certain order-sheets, there is no evidence before us of the different steps taken in the course of the revaluation with which we are concerned. Acting on the usual presumption of the regularity of official acts, we may take it that the Collector in making the revaluation followed the requirements of the Act. Exhibit B-1 (pages 108-112 of part II of the paper book) is the cess revaluation schedule relating to tauzi No. 1455. It shows the annual value of the estate as Rs. 76,476-13-0, an amount which was subsequently reduced in revision to Rs. 76,428-15-0. This amount includes, on account of a tenure shown as held by the Narhi Babus, the sum of Rs. 10,000 as the annual rent). According to the plaintiff and the defendants second party, a portion of the lands in respect of which the rent is paid falls within the tauzis 14839 and 14230, and the rent therefor has been wrongly included within the annual value of tauzi 1456. Admittedly, however, the plaintiff in his return showed the entire amount of Rs. 10,000 as rent received is and appertaining to tauzi 1458. In the circumstances, it is not open to him to challenge the correctness of the valuation on this account. Even if it was open to him to do so, I do not think that the mistake is one which would affect the jurisdiction of the Collector and render the valuation invalid. Under the provisions of the law, the Collector was authorised to ascertain the annual value of the plaintiff's estate. All that the objection comes to is that that value has been incorrectly ascertained. It cannot be seriously urged that the Collector's jurisdiction is affected because be made a mistake in ascertaining the value. Section 93 of the Act provides that the valuation made by the Collector is open to raviaion by the Commissioner or the Board of Revenue "and not otherwise". It was open to the plain-tiff to take action under this section for the correction of the mistake. Not having done so there, be cannot challenge the valuation in the civil Court.
16. Supposing even that the mistake affects the jurisdiction of the Collector, I may usefully cite a passage from Dwaraka Prasad v. Jai Barham, A. I. R. (9) 1922 Pat. 823: (67 I. C. 666) which mutatis mutandis appears to apply to the present case :
"In my opinion, when there is no want of jurisdiction in the Court, to try a suit, that is to say, when the want of jurisdiction is not apparent on the face of the proceeding, but the absence of jurisdiction depends on a fact, in the knowledge of the part; which ha had an opportunity of bringing forward in the Court, then if he does not bring that fact forward but allows the Court to proceed with the judgment, he ought not to be permitted to impeach the jurisdiction of the Court in any collateral proceeding."
17. Finally, the hollowness of the objection raised by the plaintiff on this ground is made clear if we consider the effect of the mistake which has been made. The plaintiff concedes that the Collector has the jurisdiction to include in the valuation of touzis Nos. 14299 and 14230 the portions of the annual rent of Rs. 10,000 wrongly included in the valuation of tauzi No. 1455. Under Section 41 of the Act, the holder of an estate is liable to pay to the Collector cess, calculated on the annual value of the land comprised in the estate at the rate determined under the Act for the year in question, less a deduction to the calculated at one-half of the said rate for every rupee of the revenue entered in the valuation roll of such estate as payable in respect thereof. The proprietor, therefore, would have been liable to pay to Government exactly the game total amount of cess in respect of tauzis NOS. 14229 and 14530 as the excess cess which he has now to pay in respect of tauzi No. 1455. In effect, therefore, he has not been prejudicially affected by the mistake in the ascertainment of the annual value of tauzi No. 1455.
18. A3 regards the other ground raised, namely, that the assessment is invalid as against the proprietor so long as the cess is not assessed on the tenure-holders, no authority has been cited for it. Actually the objection seems to be based on a misapprehension as to the effect of the valuation roll. Section 41 of the Act is clear that there is necessarily an assessment of revenue on the tenure-holders at the same time as the assessment is made on the proprietor. It provides as regards the bolder of a tenure that be shall yearly pay to the holder of the estate or tenure, within which the land held by him is included, the entire amount of the local cess calculated on the annual value of the land comprised in his tenure at the rate determined under the Act for the year in question less a deduction to be calculated at one-half of this rate for every rupee of the rent payable by him for the tenure. Provided, therefore, that there is no defect in the roll affecting the proprietor's right to realise cess from the tenure-holder, the proprietor will ordinarily be entitled to realise cess from the tenure holders in accordance with the valuation roll. There is nothing in the law, however, to make his own liability to pay cess to the Collector dependent upon his right to realise cess from the tenure holders included in his estate.
19. On the above grounds, I consider that the suit had no merits as against the Province of Bibar and has been rightly dismissed.
20. The question next arises as to whether the plaintiff is entitled to any relief as against the Narhi Babus.
21. His first difficulty lies in the vagueness of the plaint as regards the particulars of the claim against the Narhi Babus. The plaintiff, when he filed bis salt, was under the impression that no cess had been assessed upon them. He, therefore, made merely a vague claim against them for a decree in the nature of a contribution decree. Actually, no question of contribution arises. The right of the proprietor to realise cess from tenure-holders and cultivating raiyats included in his estate is not dependent upon his payments or non-payment of the cess due by him to the Government, and the remedy of the plaintiff was by way of an ordinary suit for the recovery of arrears of cess. In the absence of particulars, we have been asked to treat this suit as seeking a decree for arrears of cess corresponding to the case recovered by the Collector from the plaintiff, that is to say, for the period from June 1932 to January 1936. On behalf of Narhi Babus, it has been strenuously argued that it is not for the Court to spell out in this manner what is the relief asked for by the plaintiff and that the defendants will be seriously prejudiced by being made liable for a demand, the particulars of which were not apparent to them from the pleadings.
22. In my opinion, it is not necessary to consider this point as the case can be disposed of on a broader ground which will settle once for all between the parties the question of the right of the plaintiff to realise cess from the Narhi Babus in accordance with the cess revaluation schedule. The contention of the Narhi Babus is that, so far as they are concerned, they are unaffected by the revaluation schedule, as it relates to a tenure of which they are not the tenure-holders. The cess revaluation schedule shows the Narhi Babus as tenure-holders of one tenure paying a total rent of Rs. 10,000 per annum. It is contended that in fact there is no such tenure; the sum of Rs. 10,000 merely represents the total amount payable to the proprietor by the Collector of Shahabad on account of the rents realised by him in respect of a numbar of separate tenancies held by different sets of the Narhi Babus under the plaintiff. In support of this contention, reference is made to the deed EX 2, by which the proprietor of the Dumraon Raj confirmed the arrangements made in 1907. By the agreement in 1907, the then proprietor accepted the Narhi Babus as tenants and agreed not to enhance the rents payable by them in accordance with the agreement "until the said tenants shall have acquired occupancy rights" and not to eject them for any reason except for non-payment of tent due from them, and he further undertook "to grant lenses to the persons accepted as tenants containing these conditions and defining the area for which each lease is granted."
On their side, the Narhi Babus agreed to "accept the terms which may be arrived at both with regard to the extant of their respective holdings and conditions of their tenancy by the joint decision of the Collectors of Ballia, Shababad and Ghazipur."
The deed of confirmation recites that, in accordance with the agreement of 1907, the Board of Ravenue as Court of Wards in charge of the Dumraon Raj subsequently "did, during the same year 1908, establish the Narhi Babus as occupancy tenants in the aforesaid land of Umarpur Diara", and contains covenants (1) by the Secretary of State, to pay to the proprietor from time to time the annual rents due from the Narhi Babus, (2) by the proprietor, to accept the rents so paid and not to claim any such rents from the Narhi Babus as long as they are said by the Secretary of State within six months of the rabi kisht falling due for each year, and (3) by the Narhi Babus, to pay to the Secretary of State "any rents due from them or an; of them, their successors or assigns as tenants of the second party in Umarpur Diara."
All this suggests that, in fact, the sum of Rs. 10,000 represents the total of the rents payable for a number of tenancies. According to the defendants second party, the largest rent payable in respect of any one of these tenancies is less than Rs. 100, and it is claimed that the Narhi Babus are cultivating raiyats within the meaning of Section 4 of the Act and each of them is only liable to pay cess at the rate of one-half of the cess calculated at the rate determined under the Act for the year in question on the rent payable by him for his tenancy (Section 41 of the Act).
23. In answer to the above contention, it has been argued that the cess revaluation schedule is binding upon the Narhi Babua. Our attention is drawn to Ex, A-1, the order-sheet is the cess revaluation proceedings which shows that, on the failure of the Narhi Babus to lodge a return special notices were issued to them on 1st August 1931 and, on their continued failure to lodge a return, the valuation was made by the Collector on the basis of a report by an amin who visited the spot. Thereafter, on 21st March 1939, a petition was filed on their behalf and they were heard at length on 29th March 1933 when apparently the only objections pressed were (1) that their total liability on account of rent and cess was confined to Rs. 10,000 and (2) that a portion of land had been washed away. The argument is that, the Narbi Babus having appeared and not having objected before the Collector that there were several tenancies and not one tenure, they cannot be permitted to raise the objection now. Tbe point is of some difficulty, but I think that the contention most be rejected. It appears to me that the jurisdiction of the revenue authorities under the cess manual is to determine the valuation of the estates within the district and of the tenures and holdings included in those estates. Under Section 6, the cess is to be assessed at the "annual value" of lands and on the "annual nett profits" from mines and quarries "ascertained respectively as in this Act prescribed". Under Section 12, the Board of Revenue may order a Valuation' or a 'revaluation' [vide also Sections 13 and 15]. Under 33. 21 and 2fi, the Collector has power-in the absence of a return to determine ''the annual value", [vide also Section 22]. Under Section 84, the Collector shall cause a "valuation roll" to be prepared, and under Section 36, it is the "valuation and revaluation" so made which remain in force for the period prescribed. There is only one section under which the Collector's power goes beyond the determination of valuation. This is Section 26, which relates to a person shown in any return as a cultivating raiyat to whom a notice has been issued by the Collector under the provisions of Section 24. These provisions deal with holders of small tenancies who have sublet a portion of their tenancies and are, therefore, not cultivating raiyats within the meaning of Section 4. Subject to this limitation, it would appear that the Collector has no jurisdiction to determine finally the correct classification of the tenancies shown by him in the revaluation schedule or the particulars of the tenancies themselves. The finality to the valuation schedule given by Section 98 seems thus to be confined to the valuation. This is, of course, subject to what I have said about Section 36. My conclusion seems to be supported by Section 107 which provides that nothing in Part II of the Act and nothing done in accordance with the Act shall be deemed to effect the fight of any person in respect of any immovable property or any interest therein except as otherwise expressly provided in the Act.
24. Now, let us see what is the problem before us. We are given an assessment schedule which shows a tenure in respect of which a lump rental of Rs. 10,000 is payable. Tbe evidence suggests that there are, in fact, several tenancies, the total rent of which is represented by this sum of Rs. 10,000 and we have not before us the materials to determine whether those tenancies or which of them, are tenmes or holdings within the meaning of Section 4 of the Act. In the circumstances, can the tenancies be made liable for cess on the basis of the revaluation schedule ? The only authority I have been able to discover which in any way supports a positive answer is Braja Behari Dass v. Ram Narayan Rai, A. I. R. (25) 1938 Pat. 362 : (17 Pat. 436) in which Agarwala and Varma JJ , approving a decision of Boss J., reported in Kesho Prasad Singh v. Ram Swarup Ahir, 90 I. C. 621 : (A. I. R. (13) 1926 Pat. 176), rejected the contention of the defendant-respondents that, although they were assessed as tenure-holders, they were really cultivating raiyats. There was no suggestion before their Lordships, nor does there appear to have been a suggestion before Boss J., that apart from this question of classification the tenancy was otherwise than it appeared in the valuation roll. Here, however, the case is not merely one of classification, but that there is no such tenancy as is shown in the valuation roll. The nearest approach to this case which I have been able to find occurs in Kameshwar Singh v. Janki Raman, A.I.R. (33) 1946 Pat. 200 : (24 pat. 705), in which the facts appear to have been similar to those in Abdul Hasan v. Taj Ali. 6 Pat 13 : (A. I. R. (14) 1927 Pat. 270). In both cases what was shown in the valuation roll as a tenure consisted at the relevant period of a number of tenancies. In Abdul Hasan's case, (6 Pat. 18 : A. I. R. (14) 1927 pat. 270), their Lordships remanded the case for investigation whether the defendant was a "cultivating raiyat" observing :
"In deciding whether the defendants are liable to pay as tenure holders or not, we have to consider the definitions given in the Cess Act and find out who is liable, and if a person cultivates the land himself and pays rent not exceeding Rs. 100 he is a cultivating raiyat whatever may be the character of his holding under the Bengal Tenancy Act."
In Kameshwar Sigh's case, (A. I. R. (38) 1946 Pat. 200 : 24 Pat. 705), following the decision in the earlier case and distinguishing the cases of Braja Behari Das, A. I. R. (25) 1988 pat. 362 : 17 Pat. 433) and Kesho Prasad Singh, (90 J. C. 621 : A. I. R. (13) 1926 pat. 175), it was held that cess was recoverable on the basis of the facts as existing at the relevant time, that is as from cultivating raiyats. These were both cases of a change occurring subsequent to the framing of the valuation roll. In the case before us, the facts as shown in the valuation roll appear to be incorrect, and there seems to have been no such tenure at the time when the valuation roll was framed. The principle applicable is deducible from Rani Harsamukhi Dasi v. Agadhu Mohapatra, A. I. R. (27) 1940 pat. 180 : (18 Pat. 723), where Harries C. J., and Manohar Lall J., decided that, if the tenure in question has been omitted in revaluation, it escapes the liability for cess. Perhaps this advantage will not accrue to a cultivating raiyat, whose liability to cess appears under Clause (3) of Section 41 of the Act, to be independent of his inclusion in the valuation roll.
25. On the above grounds, I would hold that this suit also fails as against the defendants-second party.
26. In the result, I would dismiss the appeal with costs throughout to the State of Bihar. As Narhi Babus escape for the period in suit from their liability to pay cess, I see no reason to give them costs.
Jha, C.J.
27. I agree.