R.C. Mitter, J.
1. This appeal is on behalf of the plaintiff who is a co-sharer landlord, his share being 8 annas. The pro-forma defendants are the remaining co-sharer landlords, but they have not appeared and taken part in the proceedings. The suit was for recovery of the plaintiff's share of the rent for the years 1337 and 1338 and for his share of the cesses for the years 1335 to 1338. The plaintiff avers that the total jama is Rs. 35-6-6 a year and the total cess payable by the tenants defendants is Rupees 11-6-9 per year, and he claims on the said basis. His claim was decreed in full by the Munsif, but on appeal the learned District Judge has reduced his claim for cesses. The appeal is therefore directed to that part of the judgment and decree of the learned District Judge which deals with the plaintiff's claim for cesses.
2. In the valuation roll the annual value of the lands in the defendants' possession has been determined to be Rupees 200-6-0. Their tenancy is entered in form No. 3 given in appendix B of the Cess Act, and form prepared under Rule 96 of the Cess Manual, a rule which deals with the preparation of the valuation roll under Section 34 of the Act, that is to say, his tenancy was classed by the Collector for the purpose of assessment of cesses as a tenure. In the first column is entered the number of the khatian. The second, column is headed thus:
Name and touzi number, or if rent free, number in Register 2 of rent free lands, or number In Register 3 of chaukidari chakran lands, with the names of zemindars, tenure holders and sub-tenure holders in the estate.
3. Under this heading is entered the name of Natabor and others, the defendants' predecessors. In the third column the annual value (Rs. 200-6-0) is entered. In the fourth column which is headed
amount of revenue payable to Government or chaukidari chakran assessment payable and rents payable to superior landlords on which deduction is to be made under Section 41 of the Act
is entered, the rent Rs. 30-3-6, which was the rent payable by the defendants' predecessors at the time of the preparation of the valuation roll to the plaintiff and his co-sharers. It is admitted the rent was subsequently enhanced and is now Rs. 35-6-6. There cannot be any doubt that the defendants' predecessors had been assessed by the Collector on the basis that they were tenure holders and not cultivating ryots. The fourth column obviously mentions the amount on which deduction has to be made under the provisions of Section 41(2) Cess Act. The rate of road and public works cess being fixed at one anna per rupee of the annual value the plaintiff arrives at the figure Rs. 11-6-9 as the amount of cesses payable by the defendants in the following manner:
At the rate of 1 anna per rupee on the annual
value fixed at Rs. 200-6-0
Deduction at 6 pies per rupee on
Rs. 35-6-6, the annual rent payable
by the defendants to the plaintiff
and his co sharers under Section 41(2)
4. The defendants say that they are ryots and the amount of cess payable is at the rate of six pies on every rupee of the rent payable by them or at the rate of six pies per rupee of the annual value determined by the Collector. The learned District Judge relying upon the entry in the Record of Rights prepared under Chap. 10, Bengal Tenancy Act, which has recorded the defendants as ryots, has held that cesses can be received from them at such rates at which it can be received from cultivating ryots. He says in this judgment that
the defendants are cultivating ryots not only for the purpose of Tenancy Act, but also for the purposes of the Cess Act.
5. In granting the decree the learned District Judge has however miscalculated the amount payable by the defendants. Instead of giving the plaintiff a decree for cesses at the rate of six pies per rupee on the annual value of Rs. 200-6-0, he has deducted a sum equivalent to six pies per rupee on Rs. 35-6-6, the rent payable by the defendants to the plaintiff, for which deduction there is no warrant in law, for Sub-section 3, 8. 41 of the Act does not allow any such deduction, i.e., in the case of cultivating raiyats. The whole question however is whether, when the Collector is acting intra vires, can the civil Court go behind the assessment made by him. That assessment depends upon and is based on the following factors; (1) Annual value of the lands; (2) rate of cesses notified under Section 38; (3) status of the assessee, whether a zemindar, tenure holder or cultivating raiyat.
6. Any modification or variation in any of the aforesaid three elements will affect the assessment as made by the Collector, and as the civil Court has no jurisdiction to touch an assessment made intra vires by the Collector, it has no jurisdiction to say that a person is a cultivating raiyat for the purpose of the Cess Act when the Collector had made the assessment on the footing that he is a tenure holder. The Cess Act itself provides for the remedy of an aggrieved person, whether he is a proprietor of an estate or a tenure holder, and in the case of intra vires assessment that remedy is the only remedy. Confining myself to the case of a person assessed to cess on the footing that he is a tenure holder the following sections of the Cess Act are important: Section 34, authorises the Collector to have a valuation roll prepared of tenures from the returns made and from his enquiries. Section 35 requires the Collector to post up extracts of such portions of the valuation roll as deals with a particular tenure at the mal katchery of the tenure holder if there be a mal kutchery or if there is no mal katchery on some conspicuous place on the tenure, or if the tenure cannot be found, in a conspicuous place in any village in which such tenure is believed to be situate. Section 26 gives the Collector power to determine whether a person is a tenure holder or a cultivating raiyat for the purpose of assessment. Section 93 provides that every valuation roll shall be open to revision by the Commissioner or Board of Revenue but not otherwise. Section 104 provides for appeal to the Commissioner in certain cases and then follows Section 107 which says that
nothing done in accordance with the Cess Act shall be deemed to affect the rights of any person in respect of any immovable property or any interest therein.
7. The whole scheme of the Act is to make the decision of officers of the Revenue Department in the matter of assessment intra vires final, and the meaning of the saving Section 107 seems to me that if a person is assessed by the revenue authorities on the basis that he is a tenure holder, the assessment cannot be touched and for the purpose of determining his liability to pay cess to his landlord he must be taken conclusively to be a tenure holder; but for determining his rights and liabilities in relation to his landlord in other matters, the fact that the Collector had, in assessing him' to cesses, taken him to be a tenure holder or had decided under Section 26 of the Act that he is tenure holder and not a cultivating raiyat, would not be relevant and can be disregarded. To take an illustration if the landlord brings a suit for enhancement of rent under Section 7, Ben. Ten. Act, such a person would not be debarred from proving that he is a raiyat and not a tenure holder. The view that I am taking is in accordance with the general principle that an intra vires assessment cannot be challenged by a party in a civil Court and is supported by the decisions of the Patna High Court in Kesho Prosad Singh v. Ram Swarup, 1926 Pat 175 and Kharag Narayan v. Secretary of State, 1929 Pat 743 cases which have no hesitation in following.
8. The learned Advocate for the respondent has relied strongly upon the decision of this Court in Peary Mohan Ray v. Sarat Kumari Debi (1912) 15 CLJ 428 in support of his contention that the civil Court in a suit for recovery of cesses can go into and reopen the question as to whether the tenant is a cultivating raiyat or tenure holder, notwithstanding that the Collector in making the assessment had proceeded upon the footing that he is a tenure holder. An examination of that case shows that the landlord had in his return showed that the tenant was a cultivating raiyat and there is no precise or clear indication that the Collector had proceeded upon the footing that he was a tenure-holder. In the Letters Patent Appeal Sir Lawrence Jenkins pointed out that the distinction made in the Cess Act' is as between a tenure-holder and a cultivating raiyat and not between a tenure-holder and a raiyat. In that case also 3 tenancies had been lumped together and one annual value for the three was fixed by the Collector, and that fact would make the assessment of the Collector ultra vires, and would thereby give the civil Courts jurisdiction to discard the assessment altogether and to determine the question whether the defendant was or was not a tenure-holder. I accordingly hold that Peary Mohan's case does not support the respondent. The appeal is accordingly allowed. The decree of the learned District Judge is modified. The plaintiff's claim to cesses is fully allowed. The net result is that the decree of the Munsif is restored in all respects. The appellant will have the costs of this Court and of the lower appellate Court.