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Calcutta High Court
Jogesh Chandra Roy vs Annoda Charan Choudhury on 8 December, 1904
Equivalent citations: 68 Ind Cas 662
Author: Brett
Bench: Brett


JUDGMENT

Brett, J.

1. This appeal arises out of a suit brought by the plaintiff appellant for arrears of rent of three plots of land. Money-rent was claimed in respect of two of the plots and rent in kind in respect of the third. There was also a claim for the usual testes.

2. The Court of first instance decreed the entire claim bat on appeal the lower Appellate Court has modified the decree of the Court of first instance by disallowing: the claim for cesses in respect of the plot of land for which rent was claimed in kind. The Subordinate Judge gives as his reason for disallowing that part of the claim for cesses that there is no provision in the law for the payment of cesses when rent is payable in kind and there is no proof on behalf of the plaintiff of any agreement to pay such cesses.

3. On behalf of the appellant it is sor tended that the Subordinate Judge is in error in suppesing that the law does not contemplate that cesses should be paid by the tenants in the cases of lands held on rents payable in kind. The contention is, in my opinion, correct. Section 41 of the Cess Act clearly provides that the ce&9 is payable in respect of all lands held by a cultivating raiyat and Sub-clause (3) of that section lays down the mount of cesses which the raiyat is bound to pay. The Subordinate Judge was possibly unaware of the rules provided for the levy of cesses in respect of rents payable in kind, and his attention is, therefore, invited to the explanation given urder Section 4 of the Cess Act, B. C. of 1880, in the edition of the Act published by the Board of Revenue, with the Beards Rules attached. In my opinion, the Subordinate Judge is in error in disallowing the claim of the plaintiff of the tenants’ share of the ceases on the plot of land paying rent in kind and I, therefore, set aside the judgment and decree of the Subordinate Judge on this point and restore the judgment and decree of the Munsif.

4. As no one appears on the other side to contest the appeal, I make no order as to costs.


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