Iqbal Ahmad, J.
1. The decision in this appeal must turn on the question as to whether the chaukidara dues claimed by the plaintiff-appellant was house rent due from the defendant-respondent or a cess of the nature contemplated by Section 86 of the Land Revenue Act (3 of 1901). Both the Courts below have differed on the point. The trial Court held that the amount claimed was not a cess and it accordingly passed a decree in the plaintiff's favour. The lower appellate Court has held that the amount claimed was a cess and has dismissed the plaintiff's claim.
2. The plaintiff's case was that he was entitled to chaukidara dues claimed by him on the basis of a custom obtaining in the village. The documentary evidence relating to the chaukidara dues consisted of the wajib-ul-arz of 1860 prepared by Munshi Mohar Singh and of the wajib-ul-arz of 1870 prepared by Munshi Nisar Ali. Paragraph 9 of the wajib-ul-arz of 1860 runs thus:
Two persons, Shadi, son of Kallu and Tula son of Yad Ram, are appointed as Chaukidars for the safety of the village at Rs 17 annually, Their salaries are contributed to by the ryots in each crop exempting the houses of widows and mendicants, and if this collection comes short, the zemindars of the village make up the balance.
3. It was also recorded in the wajib-ul-arz of Munshi Nisar Ali that chaukidara dues are realized from the ryots in the village. It appears from para. 15 of the wajib-ul-arz of Munshi Mohar Singh that no house rent or parjawat was realised from the tenants, nor were the tenants liable to make any payment for the occupation of their houses. In the wajib-ul-arz prepared in the recent Settlement of 1896-1897 there is no mention of any parjawat being realizable from the ryots.
4. It was pointed out in the case of Abdul Hai v. Nathun.  1 A.L.J. 537. that
the primary notion of a cess is a payment not for the benefit of the landlord but a payment for some purpose of public convenience such as sanitation, police, and the like.... All these words as 'rent,' 'cess' and so forth, must be interpreted with reference to the meaning attached to them at the time for which payments are claimed.
5. In view of the decision noted above in order to determine whether or not the amount claimed was a cess, one has to look for the purpose for which the chaukidara dues were paid by the ryots in the village.
6. A consideration of the relevant provisions of the wajib-ul-arz, of 1860 and 1870 leaves no room for doubt that the amount claimed on account of chaukidara was not an amount payable by the tenants on account of the use and occupation of their houses or on account of the rent of the site of their houses. As has been pointed out above para. 15 of the wajib-ul-arz of Munshi Mohar Singh leads to the conclusion that the tenants were not under a liability to pay any rent either for the site of their houses or for their houses. The chaukidara dues paid by the ryots was paid on account of salaries of the chaukidars maintained for the safety of the village. This obviously could not be on account of the rent of their houses but was a cess. This, if it was a cess, was levied in accordance with the village custom. But now it is obviously not recoverable in view of the provisions of Section 86 of the Land Revenue Act as it is common ground that it was not recorded by the Settlement Officer in the last Settlement, viz. 1894-1897.
7. Reliance has been placed by the learned Counsel for the appellant on the case of Assanulla Khan Bahadur v. Tirthabashini  22 Cal. 680. In my opinion, that case has no bearing on the case that I have to decide. The decision in that case turned upon a consideration of the particular terms on which a certain putni settlement was made and on a consideration of the regulations governing such settlements. It was nowhere laid down in that case that a chaukidara tax, as such, is not a cess. The case of Balwant Singh v. Shankar  30 All. 235, relied on by the learned Munsif, is also distinguishable. In that case the amount claimed-as ghurghana was an amount claimed by the zamindar in respect of the occupation of houses by the ryots in the abadi of the village, and as such it was held by this Court that the claim was not with respect to a cess. In the present case as noted above the amount claimed could not be on account of rent of the house in occupation of the defendant.
8. The question of law involved in this case was by no means one free from difficulty, and as such it is no wonder if the learned Munsif took a view contrary to the one taken by the lower appellate Court and taken by me in second appeal. But the mere fact that the view taken by the learned Munsif did not commend itself to the lower appellate Court was no justification for such observations as
if the learned Munsif would have read this ruling it should have benefited him in distinguishing between rent and cess.
9. There was absolutely no ground for the lower appellate Court to have assumed that the learned Munsif did not go through the authorities noticed by him in his judgment.
10. For the reasons given above, I dismiss the appeal with costs.