Patna High Court
Pitamber Chowdhry vs Sheikh Rahmat Ali And Mangli Khan on 16 December, 1921
Equivalent citations: 65IND. CAS.138, AIR 1922 PATNA 303
JUDGMENT Jwala Prasad, J.
1. This is an appeal by defendant No. 1. The property in dispute is 42 kats of don land known as Gangi Jamuni, Ras and Goshin Nari situate in Mauza Darida. The village belonged to one Ram Narain Singh, Manki of Tarai and the land in question was held by his uncle Bharat Singh as rent-free Khorposh, the rule of succession in the family being that of lineal primogeniture whereby the eldest member succeeds to the estate and the junior members are allowed rent-free grants for maintenance. Such grants are transferable, but the grantor may resume them on the failure of heirs male of the original grantee free from encumbrances. Ram Narain died in 1898 and was succeeded by Bharat Singh's son Ganganarain, Bharat had three sons, Ganganarain, Ramgopal and Harakh. During his occupancy of the rent-free tenure in question Bharat gave sometime before 1896 12 kats out of 42 in usufructuary mortgage or bhugut to Regree Babu. The term of this bhugut expired long ago. In 1893, however, he gave the remaining 30 kats to defendant No. 1 in bhugut for a consideration of Rs. 1,000 for a term expiring in 1923 (1916). In 1897 Ram Narain, the proprietor of the estate, executed a bhugut of the whole mauza in favour of two cousins Rajab Ali and Sher Ali, for a term expiring in 1912. In 1899 Ganganarain and Ramgopal, the two elder sons of Bharat, executed a simple mortgage of the lands in suit for a consideration of Rs. 700 in favour of defendant No. 1. In the meantime Rajab Ali and, Sher Ali had obtained a decree for cess against Bharat in the year 1897 in the Revenue Court. They executed this decree in 1901 against Ganganarain only, whose right, title and interest in the property in dispute was sold in November 1901 under Section 124 of Act I of 1879 and the holding in question was purchased by one Baldeo Sahay. In 1902 Ganganarain executed a kabala in favour of Rajab Ali, Sher Ali and three others in lieu of the advance made by them to Ganganarain and Ramgopal for carrying put, the litigation against the widow of Ram Narain as to the right of succession to the estate. It may be incidentally mentioned that after the death of Ram Narain his widow and Ganganarain disputed the right fit succession to the estate, which ultimately terminated in favour of Ganganarain in the year 1905. In February 1902 Ganganarain and Ramgopal had executed in favour of the defendant No. 1, Pitamber Choudhry, a mokarari deed with respect to the land in suit. Pitamber, however, abandoned his right under the mokarari deed and brought a suit in July 1902 to enforce his mortgage of 1899 which was executed by Ganganarain and Ramgopal. He obtained a (preliminary decree in September 1902 for the sale of the mortgaged properties subject to his own prior mortgage in execution whereof he purchased the property in 1911, In 1912 he obtained delivery of possession of the property in suit. In the meantime Rajab Ali and Sher Ali had instituted a suit for recovery of cess against Baldeo Sahay who had purchased the land in 1901 in execution of a decree for cess. In April 1901 they obtained a decree for cess, and in August the land in suit was sold in execution of the decree and was purchased by the present plaintiff, Rahmat Ali. The sale purported to have taken place under Section 123 of Act I of 1879, Section 124 of that Act having been repealed by the Amending Act of 1903. Thus the land in suit has been purchased by both the plaintiff and defendant No. 1. The plaintiff's purchase was in execution of a decree for cess in the year 1901 and the defendant's purchase was in execution of his mortgage-decree in the year 1911, the mortgage being of the year 1899. The land in suit is at present in possession of the defendant No. 1 and the plaintiff seeks in the present suit to oust the defendant No. 1 upon a declaration that be purchased the land free from any encumbrance and that the defendant's lien created by the mortgage of 1899 was consequently annulled. He also prays for recovery of mesne profits.
2. The Courts below have decreed the plaintiff's suit. The defendant No. 1 has, therefore, come to this Court in second appeal, it is unnecessary to give in any detail the pleas taken by the defendant No. 1 in his written statement. The following issues framed by the Trial Court will show the nature of the different pleas: (l). Is the suit barred by limitations (2) Has the plaintiff acquired any right to the disputed land? Whether the suit brought by Sher Ali and Rajab Ali is fraudulent? Whether any cess was payable in respect of this land? (3) Whether the decree and sale in execution of it is bad in law? (4) Whether the plaintiff can avoid the encumbrance to which the disputed land was subject? (5) To what relief, if any, is the plaintiff entitled in this suit?
3. The first and the foremost question upon which the decision of the present appeal hinges is as to whether the tenure in question was liable for the payment of cess to the superior landlord and whether such a cess was chargeable upon the tenure. The Trial Court held, upon the construction of the provisions in the Cess Act (Act IX of the 1880) and the admissions contained in paragraphs 6 and 7 of the plaint in the mortgage suit (Exhibit 4) brought by the defendant Pitamber to enforce his mortgage against the sons of Bharat, that the tenure in question was liable to pay cesses. The Subordinate Judge, however, referred to Exhibits R.L. and 13 upon the record and, recorded the following finding: "Defendant on the other hand contends that the tenure, which was a rent-free one, was not liable to pay any cesses. In support of his contention defendant has filed copy of a valuation roll (Exhibit R) for the year 1900, which does not show any assessment in respect of this tenure. It is further argued on behalf of the defence that under Section 36 of the cess Act this assessment continued to be in force for, a period of five years. So in 1901 when the suit against Baldeo was brought for arrears of cesses the tenure was, as a matter of fact, not liable for such a charge. Plaintiff has produced a valuation roll (Exhibit 13), which proves that the tenure held by Baldeo was assessed to cesses and valued at Rs. 50 1-3. The cess returns are not now available to prove the state of affairs in existence in 1897, when the first decree for cesses Was obtained by Rajab Ali against Bharat Singh, or at the date of the subsequent decree obtained against Baldeo Sahay. Under Section 50 of the Cess Act all lands are assessable to cesses unless exempted under Sections 2 and 3 of that Act. There is no evidence to prove that the tenure was exempted from such assessment. Exhibit 13, valuation roll, at least disproves the defendant's contention that the tenure was not liable to pay any cesses." Then he refers to paragraphs 6 and 7 of the plaint which have already been adverted, to and concludes his finding upon this point in the following words: "So I have not the least doubt that the tenure was liable to pay cesses as alleged by the plaintiff." On appeal the learned Judicial Commissioner set aside this finding of the Subordinate Judge and referred in detail to the documents, namely, the cess valuation papers referred to by the Subordinate Judge, and said: "Exhibit R is very strong evidence that Rajab Ali and Sher Ali made such a return in obedience to an order passed when a revaluation of the estate, which includes Mouza Darida, was going on and that they omitted from it any mention of the rent-free tenure in suit. In the absence of any evidence to explain or to rebut the entries in this statement I find such to be the case. It is suggested that the tenure of Baldeo Sahay may have been shown elsewhere, but in the face of the return this suggestion, which is improbable, should not be accepted unless it is proved." And as a consequence of this omission the learned Judicial Commissioner held that Baldeo Sahay, the holder of the tenure, although he may not have known it, was not liable to pay cess. This is a finding of fact which, is binding upon this Court in second appeal. It has not been shown to us that in arriving at this finding the Court below anywhere misconstrued the documents referred to by it or in way misguided itself. There fore the plaintiff failed to prove that the tenure in question was shown in the return submitted by the superior landlord under the Cess Act or that any cess was assessed upon this tenure as payable to the superior landlord. The plaintiff seeks to have a declaration that he purchased the property free from any encumbrance on the ground that cess was the first charge thereon, He must prove it; in other words the onus lay upon him.
4. The learned Vakil on behalf of the respondents has employed the argument advanced by the Subordinate Judge in support of the contention, that whether any cess was actually assessed upon the tenure or not and whether the tenure in question was shown in the return submitted by the superior landlord to the Collector under the Cess Act or was omitted therefrom, the holder of the tenure is liable to the superior landlord within whose estate the tenure in question geographically situates. He contends that such a liability is enforced by the Cess Act. He has referred to the definition of "tenure" in Sections 5, 41 and 47 of the Act in support of his contention. The definition of "tenure" includes both rent-paying and rent-free tenures. Section 5 of the Act makes all immoveable property situate in any district or part of a district liable to the payment of road cess and public works cess. This is a liability to the Government, but the liability enforced by Section 5 does not in itself create any charge on any estate or tenure. So far as the liability to the Government is concerned, it is only a personal one, which is enforced by the provisions of the Public Demands Recovery Act and for the realization of which the right, title and interest only of the judgment-debtor passes. This is settled law and hardly needs any authority. Reference may, however, be made to Ahsanulla v. Munjura Banoo 30 C. 778 : 8 C.W.N. 359, Shekaat Hosain v. Sasi Kar 19 C. 783 : 9 Ind. Dec. (N.S.) 965.. Therefore, when the section says that all, immoveable property situate in a district shall be liable to the payment of cess, it does not in any way create any charge upon the property. Section 41 of the Cess Act deals with the mode of payment of road cess and public works cess. Clause (1) deals with the modes of such payment by the holder of an estate to the Collector and Clause (2) deals with the modes of payment by the holder of a tenure to the holder of the estate or tenure within which the land held by him is included. But such liability is subject to the exceptions that may be contained in other portions of this Act, for the section opens with the most important words "Except as otherwise in this, Act provided." Section 42, which fixes the time for the payment of road cess, applies only to the rent paying tenures, as is expressly provided in Clause (3) of the section. The subsequent sections in Chapter III deal with the modes of payment relating only to the rent paying tenures, In order to secure the cess payable to the Government the Act provides for a penalty upon the holders of estates and tenures on account of their omission to submit their returns of all the lands situate within their estates or tenures. In cases of rent paying lands, whether in possession of tenure holders or in possession of cultivating tenants, Section 20 of the Act precludes the superior landlord from suing for or recovering any rent for such lands unless the same are entered in the return submitted to the Collector. This provision applies to the case of rent paying tenures; and in respect of such tenures as well as of rent-paying lands in possession of cultivating tenants Section 47 of the Act entitles the holder of an estate or tenure to recover the cess payable from the rent paying tenants and from the cultivating tenants under the name penalties and in the same manner as if the same were arrears of rent due to him. This provision is for the benefit of the holder of an estate or tenure, who is required to show all his lands within his estate or tenure so that he may be able to discharge his responsibility to the Government in respect of the cesses Conveniently and without any loss. Ordinarily Section 47 will, therefore, apply to a rent-paying tenure only and as there was a doubt as to whether the provisions of that section extended to the case of rent free tenures, Section 64A was added in Chapter V containing provisions similar to those of Section 47. But suppose for a moment that Section 47 is wide enough to apply to rent free tenures also; but to apply this section, the most important condition must be satisfied and that is that the sum claimed as cess for a rent-free tenure "must be payable under the provisions of this Act." Now in order to make cess payable under the provisions of this Act with respect to rent-free lands the requirements of Chapter IV must be complied with. Section 50 of the Act deals with the inclusion of rent-free lands in estates or tenures. Section 51 enjoins upon the holder of an estate or tenure in which a rent-free tenure is included to enter such land in the return to be submitted to, the Collector; and Section 52 then requires a notice to be served upon the holder of the rent-free land with the extract of the valuation roll, It also provides for the publication of such notice and extract. The subsequent sections deal with the disposal of objections, if any, filed by the rant-free tenure-holders, Section 56 is an important section and it says: "After publication of the extracts from the roll as provided in Section 52 and in cases in which publication of the notice mentioned in Section 54 is required, after publication of such notice and not otherwise, every owner and holder of any rent-free land included in such extracts, and every person in receipt of the rents and profits or in possession and enjoyment of such land, shall be bound to pay year by year to the holder of the estate or tenure in the return of which such land has been included the amount of the road seas and public works seas which may thereafter become due to such holder, calculated on the annual value of such land as entered in such extracts, or on any other annual value which may have been determined by the Collector under Section 53, at the full rate or rates which may have been fixed under this Act for the levy of such cesses respectively in the district generally, for the year." Therefore, it is only after the publication of the extracts from the valuation roll that the liability to pay seas to the superior landlord arises in the case of a rent-free tenure. When the provisions of Chapter IV are thus fully complied with, then a seas becomes payable under the Act and such a cess a superior landlord is entitled to realize "with the same penalty and in the same manner as if it were an arrear of rent."
5. Now as observed already, the onus was upon the plaintiff to prove that the tenure in question was made liable to the payment of cess under Section 64A of the Act and that the necessary notices and publications were served upon the tenure and that it was entered in the return submitted by the superior landlord, In the case of Ashanullah Khan Bahadur v. Trilochan Bagchi 13 C.197 : 6 Ind. Dec. (N.S.) 630 it was held that no presumption of Section 114, Clause (e), of the Evidence Act applies with respect to the notice provided by Section 52 of the Cess Act and that the person who claims that a right or obligation, such as the payment of cess by a tenure-holder, has accrued, must prove that the liabilities had been incurred and the things described in the Act had been actually done. In the case of Bhugwati Kuweri Chowdhurani v. Chutterput Singh 25 0. 725 : 2 C.W.N. 407 : 13 Ind. Dec. (N.S.) 474 a distinction was drawn between rent-paying and rent-free tenures and it was said that "the owners of rent-free lands are not bound to pay road cess before the publication of the valuation rolls under Section 52." The point was, however, directly raised and decided in the case of Rash Behari Mukerjee v. Pitambari Chowdhrani 15 C. 237 : 7 Ind. Dec. (N.S.) 743. There can, therefore, be no doubt that the tenure in question was not liable for the payment of cess to the superior landlord under the Act. The fact that on a previous occasion a decree for cess was obtained in the year 1897 against Bharat does not at all make the cess payable under the Act, inasmuch as a decree for cess cannot operate as res judicata, cess being a recurring charge. The fact that Baldeo himself purchased the property at the previous sale in execution of a cess decree does not at all change the aspect of the question. The Subordinate Judge relied upon certain admissions in the plaint filed by Pitamber in the mortgage suit (Exhibit 4), in order to show that the tenure was admittedly liable to pay cesses. The liability to pay cesses may arise in different ways. It may arise on account of a contract between the parties, for instead of the rate or proportion fixed under the Act a tenant may agree to pay the entire cess or a larger amount than is fixed by the Collector to the, superior landlord. A contract to pay cess is not at all illegal, nor is it prohibited under the provisions of Section 41 or any other provision of the Cess Act [Ashutosh Dhar v. Amir Mollah 3 C.L.J. 337.] The Subordinate Judge simply held that the tenure was liable to pay cess and stopped short there. That would not itself make the cess a first charge upon the property so as to pass it at an auction sale free from any encumbrance. The Judicial Commissioner has gone further and, in my opinion, has rightly held that the tenure was not liable to pay cess under the Act. Therefore it could not be enforced and realized in the same manner and with the same penalty as if it were an arrear of rent. Baldeo might have been liable to pay cess and the sale in question might have passed his right, title and interest; but the holding itself did not pass so as to entitle the plaintiff to hold it free from encumbrance created upon it by the mortgage of 1899, in execution of which the defendant has purchased the property. The learned Judicial Commissioner himself upon his finding: would have been inclined to dismiss the plaintiff's suit, but he felt embarrassed by the decisions in the case of Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 27 I.A. 216 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.) and the case of Moti Lal v. Karrabuldin 25 C. 179 : 24 I.A. 170 : 1 C.W.N. 639 : 7 Sar. P.C.J. 222 : 13 Ind. Dec. (N.S.) 121, None of these cases stand in the way of the sale being held to have passed only the right, title and interest of the judgment debtor, Baldeo Sahay, in the tenure. The second case has distinctly said that there is a wide difference between the setting aside of a sale and deciding that the plaintiff's right was not affected by it. The first case simply held that a sale will not be treated as invalid provided the Court had jurisdiction to execute it, even if there had been a material irregularity. The defendant need not have the sale of the plaintiff set aside and declare it invalid, for he is in possession of the property on the strength of a Court sale in execution of a mortgage decree. The plaintiff wants to have the mortgage lien annulled and to recover possession of the property on the strength of a superior title. That title is based upon a sale which, as observed above, passed only the right, title and interest of the judgment-debtor and not the property itself. The fact that the sale took place under the provisions of Section 123 of Act I of 1879 as amended in 1903, does not at all affect the title of the defendant in the property or give a higher title to the plaintiff in it when, as a matter of fact, there was no charge created upon the property by the decree in execution of which he purchased the property.
6. I, therefore, set aside the decree of the Courts below and dismiss the suit of the plaintiff with costs throughout.
Ross, J.
7. I agree.