1. This is a second appeal from a decree passed by the District Judge of Pilibhit reversing a decree of the Munsif of that place. There are several connected appeals and this order will govern them all. The suit was filed in the Civil Court for the recovery of cesses by a zemindar from tenants. Every suit referred to a separate tenant. It was said that these, cesses were customary dues payable by these agricultural tenants in addition to rent and that the zemindar was entitled to recover them under Section 56 or 86 of the Land Revenue Act. The appellant's Counsel argued that cesses could be recovered only if they were held to be payable under those two sections and not otherwise, and his contention was that the cesses recorded by the Assistant Record Officer or Assistant Settlement Officer, Munshi Harbishan Dayal, did not comply with the provisions of either section. We shall examine the provisions of each section separately.
2. Taking up Section 56 first--cesses which are payable by tenants on account of the occupation of land and other cesses shall be recorded by the Record Officer under the appellations by which they are known and no cesses not so recorded shall be recoverable in any Civil or Revenue Court. It was stated on behalf of the plaintiff that these cesses were recorded by the Assistant Record Officer Munshi Harbishan Dayal in the dasturdehi prepared under his supervision. The beginning of Chapter IV, relating to revision of maps and records, first lays down in Section 48 that if the Local Government thinks that, in any District or other local area, a general or partial revision of the records, or a re-survey, or both, should be made, it shall publish a Notification to that effect. In the present case no such. Notification was published by the Local Government. The powers of an Assistant Record Officer are defined in Section 50. The appointment of an Assistant Record Officer is directed in Section 49 which gives the Local Government the power to appoint a Record Officer and as many Assistant Record Officers as it may seem fit. In the Tahsil of Pilibhit within which the lands held by the defendants, agricultural tenants, are situated no Record Officer was appointed in or about the year 1914. Munshi Harbishan. Dayal was appointed as Assistant Record Officer. Under Section 230 an Assistant Record Officer is granted all or any of the powers conferred by the Act on Record Officers subject to the control of the Record Officer. It is apparent that when no Record Officer was appointed the Assistant Record Officer cannot exercise any power conferred on the Record Officer Section 56 grants the powers of recording cesses to a Record Officer only and an Assistant Record Officer can exercise that power under Section 230, subject to the control of the Record Officer Under the circumstances two facts are wanting here. There was no revision of records notified by the Local Government and no Record Officer was appointed by it. Munshi Harbishan Dayal had, therefore no authority to make any record such, as would make a cess valid under the provisions of Section 56 of the Land Revenue Act.
3. Next we turn to the provisions of Section 86, Clause 1 of that section. Enacts that the list of all cesses other than those referred to in Section 56 levied in accordance with village custom shall, if generally or specially sanctioned by the Local Government, be recorded by the Settlement Officer, and no cesses not so recorded shall be recoverable in any Civil or Revenue Court. Munshi Harbishan Dayal was appointed Assistant Settlement Officer, and there was also a Settlement Officer for the Tahsil of Pilibhit. There was also a Notification declaring this particular Tahsil to be under Settlement. The general or special sanction of the Local Government is, however, wanting in this case. The learned Counsel for the respondent argued that the general sanction of settlement operations included a general sanction of all these. We are not prepared to hold that the sanction of a settlement operation would include such a definite sanction as is required by Section 86. In our opinion these cesses, if recorded by Munshi Harbishan Dayal as Assistant Settlement Officer with the powers of a Settlement Officer under Section 231, were neither generally or specially sanctioned by the Local Government. The cess is, therefore, not recoverable under Section 86 either.
4. A similar opinion to the one we are giving here was held by a Bench of this Court in Second Appeal No. 159 of 1917. In that case the provisions of Section 86 only were considered. The relevant part of the judgment runs as follows:
We consider that it lay upon the plaintiff to show that the cesses he claimed had been generally or specially sanctioned by the Local Government.... It is contended that inasmuch as these cesses were recorded in the Settlement they must have been taken to have been generally sanctioned. We cannot agree with this contention. We hold that no sanction was ever given as contemplated by Section 86.
5. The position here is the same. The case to which we have referred related to land situated in Pargana Pilibhit as here.
6. In the result we decree this appeal and dismiss the plaintiff's suit with costs of all the Courts including Counsel's fees here on the higher scale. The objection by way of appeal requires no order as the appeal has been decreed.