Patna High Court
Braja Behari Dass vs Ram Narayan Rai And Anr. on 22 February, 1938
Equivalent citations: 174IND. CAS.752, AIR 1938 PATNA 362
JUDGMENT Agarwala, J.
1. The plaintiff-appellant instituted three suits for recovery of arrears of rent and cess. The defendants, who were recorded in the Record of Rights as tenure holders, at the cess valuation were called upon to file returns as tenure-holders and did so. They were accordingly assessed as tenure-holders on Rs. 565-5 with respect to khewat No. 2 Rs. 122-8 with respect to khewat No. 3 and Rs. 28 with respect to khewat No. 4. As tenure-holders, the amount of cess for which the defendants are liable in respect of these three khewats is at the rate of one anna in the rupee. This was the amount claimed in the plaints. The defendants, however, pleaded that they were in fact occupancy raiyats within the definition of that term given in the Cess Act, inasmuch as the rent of their holding was less than Rs. 100. Both the Courts below have held that the defendants are occupancy raiyats within the meaning of the Cess Act and that accordingly the amount of cess recoverable from them is not at the rate of one anna in the rupee on the annual value of their holdings but at the rate of half an anna in the rupee on the amount of rent which they pay.
2. In appeal the plaintiff-appellant relies on the decision of Ross, J. in Kesho Prasad Singh v. Ram Swarup Ahir 90 Ind. Cas. 621 : A.I.R. 1926 Pat. 175. In that case the animal rent of the holding of the defendants, according to the cess valuation, was Rs. 95-4, and the rent payable by them was Rs. 31-0-6. The plaintiff claimed to recover from the defendants cess at the rate of 1 anna in the rupee on the annual value of the holding. The defendant pleaded that since their rent was less than Rs. 100 they were, for the purposes of the Cess Act, occupancy raiyats and liable only to pay half an anna in the rupee on the rent payable by them. The defence was accepted in the lower Courts. In appeal it was contended for the plaintiff that the valuation made by the Cess Department was final for the purposes of the Act and that Section 93 debarred that valuation being questioned in the Civil Courts, and that consequently the defendants were debarred from pleading that they were occupancy raiyats and not tenure holders. This contention was upheld by the learned Judge who dealt with the case in this Court. He observed:
It is obvious that a great injustice would toe done to the plaintiff (landlord) if the defendants contention were to prevail. The plaintiff has been made liable for cess on a valuation of which one of the Items is the annual, valuation of the defendants' tenure. If it were now held that the defendants were not tenure-holders then the liability for this cess will fall on the plaintiff alone through no fault of his but because the defendants had failed to contest the entry. In my opinion, it was foe the Revenue Authorities to decide whether the defendants were tenure-holders or cultivating raiyats for the purposes of the Cess Act.
3. This decision is sought to be distinguished by the learned Advocate for the respondents on the ground that in that case the plaintiff had produced the cess valuation roll showing that the defendants had been assessed to cess as tenure-holders. In the present case the copy of the cess valuation roll which Section 35 of the Act requires to be exhibited in the Collectorate is on the record, although it was not marked as an exhibit at the trial. In the judgment of the lower Appellate Court, however, the annual valuation of each of the holdings is stated without any indication of the source from which the figures were derived. As we considered it necessary for the purpose of determining this appeal that the valuation roll; should be taken in evidence, we have admitted the document which is on the record and which has now been marked as Ex. 1 in this Court. Tae decision of Ross, J. is, therefore, not distinguishable from the facts of the present case.
4. It was next contended that that decision has in effect been overruled by a decision of the Division Bench in Secretary of State for India in Council v. Ramasray Singh 12 Pat. 701 : 145 Ind. Cas. 808 : 14 P.L.T. 231 : A.I.R. 1933 Pat. 430 : 6 R.P. 208. That was a case in which tae plaintiffs, who were cultivating raiyats allowed dealers of cattle to hold a hat upon their land for which a fee was charged to the cattle dealers. They wore called upon under Section 24 of the Cess Act to make a return for the purposes of cess valuation and they were assessed on the income which they derived from the fees paid by the cattle dealers. Their objection to the assessment having been disallowed by the Board of Revenue and the authorities Sub-ordinate to it, they instituted a suit for a declaration that they were not liable to assessment on the fees derived from the cattle dealers., Neither the decision of Ross, J. nor Section 93 of the Cess Act was referred to and the reason, I think, is quite obvious. There can be no doubt that the Civil Court has jurisdiction to grant relief in a case where the Cess Department has acted ultra vires and imposed liability for cess on income which is not subject to cess. Section 93 is no bar to such a suit, that is to say, while the section does not bar a suit to establish that the amounts on which the defendants have been assessed, is not subject to the Cess Act at all, it does bar & suit in which the contention is that not that the Cess Department acted ultra vires but merely that its decision is wrong. The Division Bench decision, therefore, in my opinion, does not affect the decision of Ross, J. nor have any bearing on the present appeal.
5. It was text contended that Ross, J.'s decision has been overruled by implication by another Division Bench in Abdul Hasan v. Taj Ali 6 Pat. 13 : 102 Ind. Cas. 365 : 8 P.L.T. 643 : A.I.R. 1927 Pat. 270. The facts of that case were that a tenure of 300 bighas was held by a number of co-tenants on an annual rent of Rs. 560. The tenure was divided up between the co-sharers, each group of co-sharers agreeing that they were liable for the payment of their share of the rent only. By this agreement the defendants in the suit were liable for less than Rs. 100 of the rent. The plaintiff landlord claimed to recover cess from them at the rate of one anna in the rupee. The defendants' contention was that as cultivating raiyats they were liable only for half an anna on the amount of rent that they paid. In this case also neither the decision of Ross, J. nor Section 93 of the Cess Act was referred to in the judgment of the High Court, nor does the report of the case indicate that the cess valuation roll was in evidence. Adami, J. in delivering the judgment of the Court observed:
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. The defendants in this case pay a rent under Es 100, and, if they cultivate the land themselves, they will be liable only to pay cess at the rate of half an anna per rupee.
6. The case was remanded to the Court below to determine whether the defendants did in fact cultivate the lands themselves. In the present case, in the returns filed by the defendants, they show themselves as tenure holders and the actual valuation of their holding was ascertained at the figures already mentioned. These circumstances clearly prove that the defendants were not cultivating the land themselves. This fact distinguishes the present case from the last-mentioned case. I am in entire agreement with the reasoning of Ross, J. To hold otherwise would result in gross injustice. The result would be that the landlord would actually be liable for a greater amount of cess than he receives from the defendants as rent and cess combined. This was clearly not the intention of the Legislature and there is nothing in the Act which coerces us to accept this interpretation of its provisions.
7. I would, therefore, allow these appeals and set aside the decision of the Court below and decree the suits with costs throughout.
Varma, J.
8. These three second appeals arise out of three rent suits instituted by 16 annas landlord for recovery of rents and cesses in respect of three tenures, khewats Nos. 2, 3 and 4 of Mauza Mateli Khemchand, on account of the years 1337 to 1340 Fasli. The defendants pleaded payment, and as to the cess claimed, they urged that they were occupancy raiyats, and as such, were not liable to pay more than half anna per rupee on the jama. They further pleaded that they were never required to file any cess return. The, trial Court held against the defendants oh the plea of payment but as to the rate of cess payable by them, it came to the finding that for purposes of the Cess Act they were cultivating raiyats and, therefore, the plaintiff was not entitled to realize mere than half anna in a rupee on the jama. The trial Court found that the defendants had actually filed cess returns; but the learned Munsif was of the opinion that that fact would not operate to oust the jurisdiction of the Civil Court to grant relief to the defendants in respect of the cess claimed by the plaintiff. The view of the learned Munsif must obviously be in answer to some argument advanced before him that under Section 93 of the Cess Act (Bengal Act IX of 1880) every valuation made by the Collector shall be open to revision by the Commissioner or Board of Revenue and not otherwise. The lower Appellate Court upheld the decision of the learned Munsif in its entirety. The suits were thus decreed for the rents but the amount of cess claimed by the plaintiff was reduced to half anna per rupee on the jama. Hence these appeals by he plaintiff.
9. Mr. Sushil Madhav Mullick, appearing on behalf of the plaintiff landlord, urges that the Courts below fell into an error of law in treating the defendants as cultivating raiyats, having found that they lodged returns as tenure-holders. It has, therefore, to be examined how the Courts below came to hold that the defendants are cultivating raiyats within the meaning of the Act. Exhibits 1 to 1(b) are certified copies of the returns filed by the defendants in the year 1925 in respect of khewats Nos. 2, 3 and 4; and Ex. I (marked in this Court) is a copy of valuation roll prepared in the same year under Section 35 of the Act. It appears from Ex. I, the valuation roll) that these khewats were classed as sub-tenures and the valuation in respect of them was made as follows:
Khewat Annual Amount of revenue or chaukidari
No. value, chakran assessment payable on
which deduction is to be made
under Section 41 of the Act.
___________________________________________________________
Rs. a. p. Rs. a. p.
2 565 5 0 27 5 9
3 122 8 0 3 6 6
4 28 0 0 4 0 0
10. The suits were filed on September 8, 1933, and the plaintiff admittedly claimed cess at the rate of one anna in the rupee.
11. The learned Advocate for the appellant, relying on the decision of this Court in Abdul Hasan v. Taj Ali 102 Ind. Cas. 365 : 8 P.L.T. 643 : A.I.R. 1927 Pat. 270, and on several other decisions, has argued that in dealing with cases for purposes of the Cess Act one has to look at the matter according to the definitions of the various natures of interests as given in the Act itself and not according to the definitions given of them in the Bengal Tenancy Act, and refers to the definitions of the terms "cultivating raiyat", "tenure", "estate" and "holder of an estate or tenure" in Section 4 of the Cess Act. According to the Act "cultivating raiyat" is a person cultivating land and pacing rent, therefor, not exceeding one hundred rupees per annum; "estate" includes ail lands entered in the Collector's registers, or lands pother than the interest of a cultivating raiyat) the revenue or rent of which may be directly payable to the Collector, or land acquired by or under the authority of Government for sale, grant, lease or clearance of waste lands; "teuure" includes every interest in land whether rent paying or not save and except an estate and the interest of a cultivating raiyat; and "holder of an estate or tenure" means all or any of the holders thereof and where two or more persons are jointly holders thereof, they shall be jointly and severally liable, under the Act. Now in order to appreciate the evidentiary value of the valuation roll(Ex. I) we may look into the scheme of the Cess Act, as laid down in the various sections. Under Section 5 of the Act all immovable property shall be liable to payment of cess except as Otherwise provided in Sections 2 and 8; and under Section 12 the Board of Revenue may order a valuation or a re-valuation to be made of such properties in any district or part of a district after the expiration of the term of five years from the beginning of the year in which the cess was last levied. Section 14 provides that when such a valuation is to be made a proclamation is to be issued requiring every holder of an estate or tenure liable to pay an annual amount of revenue or an annual amount of rent exceeding one hundred rupees to submit a return, and notices are served on such persons as provided in Section lb to lodge returns before the Collector. Under Section 24 of the Act even a cultivating raiyat may, in the discretion of the Collector, be served with a notice to make a return and is thereupon bound to comply with it and may be made liable to payment of. cess; and under the Note to the section a raiyat, when he sub-lets a part of his holding, however small, is to be treated as tenure-holder for cess purposes. Then the valuation rolls are prepared, as provided in Section 34 of each estate within a district and of the tenures therein comprised from the returns lodged and the same are then published in the manner prescribed in Section 35. It is through all this procedure that we get the valuation roll Ex. I in these appeals. Then Section 36 lays down that every valuation and re-valuation so made shall remain in force for a term of five years from the date to be fixed by the Board of Revenue under Section 12, and thereafter, until another re-valuation and assessment in substitution therefor shall have been made and completed. The modes of payment of local cess by holders of an eetate or a tenure, or by a cultivating raiyat are provided in Section 41. Finally, under Section 93 every valuation thus made is open to revision by the "Commissioner or the Hoard of Revenue, and not otherwise; but under Section 107 of the Act nothing done in accordance with the Act shall be deemed to affect the rights of any person in respect of any immovable property or any interest therein except as otherwise expressly provided.
12. That being so, the valuation roll (Ex. I). published under Section 35 of the Cess Act has a binding effect on matters falling within, the jurisdiction of the Civil Courts. Apparently the attention of the Courts below was not drawn to the provisions of Section 93'of the Act.
13. We are referred to the decision, of this Court in Secretary of State for India in Council v. Ramasray Singh 12 Pat. 701 : 145 Ind. Cas. 808 : 14 P.L.T. 231 : A.I.R. 1933 Pat. 430 : 6 R.P. 208. In that case the assessment was made upon an income derived from dealers of cattle, and it was held that in those, circumstances the plaintiff, who collected certain fee from the dealers, could not be construed to have the 'status of a tenure-holder in respect of the land on which the cattle' fair" was held. The learned Judges held:
It is only the income derived by the holder of the estate or of the tenure upon which cess is to be assessed and in so far as the cultivating raiyat is concerned, it is only upon the rent payable by him that cess is to be assessed. Under the circumstances it is clear that the plaintiff cannot be assessed to cesses in respect of any profit which they make out of the holding.
14. In determining the question whether the plaintiff in that case could have the status of a tenure-holder, their Lordships relied upon the Full. Bench, decision of the Calcutta High Court in Secretary, of State for India v. Karuna Kanta Chowdhry 35 C. 82. In the case of Abdul Hasan v. Tej Ali, 102 Ind. Cas. 365 : 8 P.L.T. 643 : A.I.R. 1927 Pat. 270 the tenure was held by a number of co-sharer tenure holders, who subsequently agreed with the landlord that each of them would pay his jama according to the amount of land held by him in the tenure, and the amount of jama paid by each of them was not more than Rs. 100. Upon these facts it was held by this Court that the holders of the interest were cultivating raiyat and not tenure-holders as held by the lower Appellate Court. But it does not appear that in that case their Lordships' attention was drawn to Section 93 of the Act.
15. In the other case, relied upon on behalf of the defendant-respondents i.e., the case of Sarat Chandra Deb v. Dharani Mohan Roy 113 Ind. Cas. 240 : 47 C.L.J. 546 : 32 C.W.N. 610 : A.I.R. 1928 Cal. 508 : 55 C. 1305, the contention was that the defendants who Cultivated the 29 holdings were cultivating raiyats, as in respect of none of the individual holdings they paid a rent exceeding Rs. 100 although the total jama paid by them was more than Rs. 100. Their Lordships of the Calcutta High Court took the view that in those circumstances the defendants were to be regarded as tenure-holders for purposes of the Cess Act. In that case also it does not appear that attention was drawn to Section 93 of the Act.
16. In our opinion, these appeals are conclusively determined by the decision of Ross, J. in Kesho Prasad Singh v. Ram Swarup Ahir 90 Ind. Cas. 621 : A.I.R. 1926 Pat. 175. His Lordship held that according to Section 107 what is done under the Cess Act is done only for the purposes of that Act and has no other effect on the rights of persons, and that Section 107 did not purport to modify the conclusive effect given by Section 93 to the cess valuation. The valuation roll is prepared under Section 35 of the Act, and under Section 93 only the revenue authorities will have, the jurisdiction, to revise it. The defendants in these appeals are therefore, bound by the entries in the valuation roll (Ex. I).
17. In this view of the matter I entirely agree that these appeals must be allowed with costs throughout.