1. This appeal has been preferred by the plaintiff and arises out of a suit brought by him for obtaining a declaration that he was not liable to pay cess to the defendants under the terms of his patta and for an injunction restraining the defendants from realising cess from him and for refund of a sum of Rs. 159-5-6 paid by him under protest. The material facts are not disputed and are as follows. Kshirode Kanta Roy, predecessor of the defendants was the owner of touzi No. 2402 of 24 Parganas Collectorate in his 1/3rd share and the remaining 2/3rd belonged to his co-sharers Satish Kanta and others. As a result of and during some litigation Kshiroda and some of his co-sharers entered into an agreement with Sarat Chandra Goswami, predecessor of the pro forma defendant, for granting a patni patta for their 2/3rd share, in the event of success in the litigation, at a rent of Rs. 1500 per annum fixed in perpetuity. In accordance with this agreement, defendant No. 1, representing the estate of Kshiroda, granted a patta to Sarat Chandra Goswami on 30th ohaitra 1327 B.S. in which the rent for the 1/3rd share was fixed at Rs. 750. Clause 2 of the terms of the patta provided as follows:
In addition to the fixed patni rent mentioned in Clause 1 above, you shall pay cess at the rate of one anna on every rupee of the patni rent. If in future any tax or cess is levied according to law, or the current rate of cess is enhanced, or if municipal tax be imposed or if any other imposition is levied, you shall pay the same together with the aforesaid rent and separately from it.
2. Admittedly, the property leased by the patta is situated within the second class Municipality of Bhatpara and consequently no cess is payable on account of this property by reason of the exemption provided by Section 2, Cess Act. Plaintiff purchased the interest of Sarat Goswami on 2nd February 1928, and paid cess for some time, being unaware, according to him, that the property was within the municipal area. He learnt this fact from the settlement records which were finally published on 15th March 1931 and thereafter he paid cess under protest. Then he brought T.S. 47 of 1936 for a declaration that the stipulation for payment of cess was illegal, but withdrew that suit in the second Appellate Court with liberty to sue afresh on the same cause of action. Plaintiff claimed that the contract for payment of cess was illegal, and that it was entered into owing to the mutual mistake of the parties.
3. The suit was contested by the defendants who denied that there was any mutual mistake or that the contract was illegal. They raised various objections also on grounds of res judicata, limitation, waiver, estoppel and acquiescence. The learned trial Court held on a consideration, of the evidence, and on a construction of the patta, that there was no mistake between the parties to the patta but that they were aware that the lands to which it related were within, the Municipality, and he rejected therefore the contention that the contract was void under Section 20, Contract Act. He held further that even if no cess was legally payable under the Cess Act, it was really an imposition or abwab, the recovery of which was not barred by the Patni Regulations which governed the patta in question. He rejected the defendants' pleas that the suit was barred by principles of res judicata, waiver, estoppel or acquiescence, but accepted the contention that the reliefs sought were barred under Articles 96 and 120, Limitation Act. He found also that defendant 1 was not a necessary party. In consequence of these findings he dismissed the suit on contest against the defendants but in the circumstances of the case directed that the parties should bear their own costs.
4. On appeal, the learned Subordinate Judge held on a consideration of the decisions reported in Ashutosh Dhar v. Amir Mollah ('06) 3 C.L.J. 337 and Gobind Chandra v. Lalit Mohan ('16) 3 A.I.R. 1916 Cal. 936 that the contract for payment of cess in para. 2 of the Patta was neither illegal nor void, and in agreement with view of the learned Munsif, he held that the plaintiff had failed to prove that there was any mutual mistake at the time the parties entered into the contract. He agreed with the Munsif that the suit was not barred by principles of re3 judicata but did not enter into the question of limitation since he dismissed the appeal on the other findings. He allowed a cross-objection of the defendants relating to costs and gave them full costs of the trial Court.
5. At the hearing of the appeal before us, Mr. Mukherjee did not attempt to support the contention that there was any mutual mistake between the parties as to whether the lands which were leased by the Patta were within the Bhatpara Municipality, but he argued that the parties did not know at the time of the agreement whether cess was payable or not, as they had not been assessed with municipal taxes, and that since cess was admittedly not payable the agreement for payment of cess was without consideration and consequently void under Section 25, Contract Act. He conceded that the Patnidar might agree to pay an extra imposition in the nature of an abwab but it was contended that the agreement under consideration was clearly for payment of cess as contemplated by the Cess Act, and not for payment of any other abwab by way of addition to the rent. The correctness of the decisions relied on by the learned Subordinate Judge was not questioned but it was claimed that those decisions were of no value in the present case in which there was no question whether the parties could contract themselves out of their statutory liabilities but in which the position was that neither party had any liability for payment of cess under the provisions of that Act.
6. Mr. Das for the respondents did not rely on the decisions mentioned above, but he maintained that the parties to the agreement entered into it deliberately and that there was nothing illegal in the agreement to pay cess, even though it was not legally recoverable. He contended that this agreement for payment of cess was also part of the consideration for the use and enjoyment of the property leased, and that, in any event, even if the parties did not know whether cess was payable or not, this would at most constitute a mistake of law which could not invalidate the contract. He drew attention to the fact that the lower appellate Court had not decided the question of limitation, though he did not seriously press the point or seek to support the decision of the trial Court on that ground, and we may say at once that we are satisfied that there is no bar of limitation in this suit. Even though the plaintiff may have paid cess in accordance with the agreement amicably or under protest for a number of years, if cess was not legally payable, each fresh demand for payment or attempt at realisation under the Patni Regulation would constitute a fresh cause of action and provide a fresh period of limitation.
7. Mr. Das sought to support his contention that the agreement for payment of cess was not illegal, even though no cess was legally, payable, by reference to the decision Jyoti Kumar Mukherjee v. Hari Das Maiti ('05) 32 Cal. 1019. It is however unnecessary for us to decide this question since, as indicated below, we think the agreement to pay cess is void because there was and is no consideration for such payment.
8. The decision of the other points which have been argued before us depends mainly on a construction of the patta generally and in particular the terms of Clause 2 which have been reproduced above. As already noted, the patta followed an earlier agreement and it is not disputed that the original agreement contained no stipulation for payment of cess. It is not disputed either that 'cess' referred to in Clause 2 is cess as contemplated by the Cess Act, and we have no doubt at all that that is so, and that the cess mentioned was not an imposition of any other nature or any addition to the rent. The earlier agreement was for granting of a patni lease in the two-third share for a rent of Rs. 1500 fixed in perpetuity without any reference to cess and the introductory part of the patta indicates that the settlement of the undivided one-third share was being made for a total annual rent of Rs. 750 and a sum of Rs. 5666-10-8 on account of salami and value of arrears of rent. We agree that the reference to imposition of municipal taxes in Clause 2 of the terms of the patta is an indication that the parties were aware that the lands demised were within the municipal area, though not actually assessed to municipal taxes at the time of the agreement, and although we think the parties may have been uncertain whether the property was in such circumstances liable for payment of cess, we are of opinion that the agreement to pay cess was entered into on the understanding that cess would be paid. Otherwise we can find no satisfactory explanation for the inclusion of the provision 'If in future...the current rate of cesa be enhanced', and we think the reasonable interpretation of these words is that the parties understood that cess was or would be payable for this property-according to the current rate and that it was for this consideration that the grantee agreed to pay cess at the rate of one anna in the rupee of the patni rent. In other words, the consideration for this part of the contract was not the use and occupation of the land for which provision was made in the introductory part of the patta and in Clause 1 of the terms, but the consideration was that cess was or would be payable by the grantee according to the current rate. If the intention of the parties was that something more should be paid as an addition to the rent fixed in the earlier parts of the patta, there seems to us no reason why the rent should not have been enhanced, accordingly or why the addition should have been classified as 'cess'.
9. Since no cess was or is actually payable there was therefore, in our view, no consideration for the agreement to pay cess and consequently we think this part of the contract was void under the provisions of Section 25, Contract Act. In this view of the matter, the objection that a mistake of law will not render the contract invalid is of no importance though we might observe that the question whether any particular property is liable to payment of cess is ordinarily a mixed question of fact and law. It is not however necessary for us to discuss that question further.
10. The result is therefore that we allow the appeal, and set aside the judgment and decree of the lower Courts. The Plaintiff will get a declaration that the defendants cannot realise cess from him according to the terms of the patta, a permanent injunction restraining the defendants from realising cess from him thereunder and an order for refund of the sum of Rs. 152-5-6 paid by him under protest. In the nature of the case, we make no orders as to costs.
B.K. Mukherjea, J.