1. In this case the appellants are interested in each of the 29 tenancies under the plaintiff. The plaintiff brought his suit for extra cesses due to him from the defendants in the following circumstances : It appears that the plaintiff made a return as required under Section 17, Cess Act, and in that return he described the defendants on the footing that they were cultivating raiyats within the meaning of the Cess Act. Thereupon that return having been scrutinized by the Collector, the Collector issued a notice under Section 24 upon the defendants requiring them to make a return. They said that they made a return and I am satisfied that thereupon action was taken by the Collector to put the defendants' names on the Cess Valuation Boll in part 3. It appears that they were described as tenure-holder 84 and to that number the names of the defendants were supplemented. On that basis the plaintiff brought his suit, because the plaintiff having hitherto got cesses from the defendants on the footing that they were cultivating raiyats properly entered in part 2, Cess Valuation Roll, now claims that as he has to pay Government cesses on the basis that these defendants were not cultivating raiyats he was entitled to the balance from the defendants. These facts are not disputed and the only question which is raised in this appeal is the important question whether or not the defendants come within the definition of a cultivating raiyat as used in Section 4, Cess Act - Act 9 of 1880.
2. Now if one looked at the scheme of that Act one would find in Section 41 that the amount of the cesses payable in respect of lands depends upon certain things. One particular rate is payable by every holder of an estate. Then every holder of a tenure has to pay to the holder of the estate or tenure within which the land held by him is included the entire amount of the road cess and public works-cess calculated in a certain way. Every cultivating raiyat has to pay to the person to whom his rent is payable one-half of the road cess and public work cess calculated in a certain way. There can be no doubt that a person who is a cultivating raiyat can only be assessed in a less onerous manner as regards rate than if he were a holder of a tenure as defined by the section. The question is whether the defendants come under the definition of 'cultivating raiyats' and are entitled to the privilege of coming under Clause 3 of the section.
3. Now the point is this : that these defendants are interested in 29 different, jamas the total rent of which amounts to more than Rs. 100. They say that they themselves cultivate lands of each of those 29 holdings. They say that as in. respect of none of the holdings which. they cultivate they pay a rent exceeding Rs. 100, they are cultivating raiyats and, therefore, although the total rent of the 29 such holdings exceeds Rs. 100, they are entitled to the privilege of paying road cess in the manner prescribed in Clause 3, Section 41. Now to my mind that is not so. One has to remember first of all that while these defendants may be raiyats and may actually do cultivation, that does not make them cultivating raiyats for the purpose of the Cess Act. A cultivating raiyat, according to the definition in the Act, means a parson cultivating lands and paying rent therefor not exceeding Rs. 100 per annum. There is therefore no argument to be based upon the fact that these peoples' holdings are raiyati holdings or upon the fact that they themselves are cultivators. One has to see whether they come within the definition of a 'cultivating raiyat.' If they do not themselves cultivate, it is clear from the definition of a tenure-holder that they are treated by the Act as tenure-holders. For that purpose one has to make up one's mind whether or not persons may cultivate lands to a large extent and remain cultivating raiyats provided they hold the lands in separate holdings. The intention of the Act is to look at all the lands the person in question cultivates and if he is a cultivator, a small-cultivator, in the sense that his rent does not exceed Rs. 100 then he is given the privilege of a cultivating raiyat. Looking at the way in which the Act is framed it seems to me that it would be unworkable unless this Act intended to have regard to the total land which is cultivated by the individual claiming those privileges. It seems to me idle to make a maximum of Rs. 100 if that is to apply to an individual holding. It makes no difference to the policy of this Act whether a man has ten holdings or one holding. The object of the Act is not to compel people to sub-divide holdings unnecessarily. The Act intended to treat leniently a person who is an actual cultivator of the soil provided he is not paying a rent of more than Rs. 100, that being the limit within which that privilege can safely be granted. In my judgment the rent of Rs. 100 must be taken as applied to the whole of the land which is cultivated by the person in question. In this case we know that the defendants cultivate lands, but for the lands they cultivate they pay altogether a rent exceeding Rs. 100. I think, therefore, that the reasoning of the Subordinate Judge is in accordance with the intention of the statute. He says:
No doubt ceases ate assessed on lands, but in the case of persons paying more than Rs. 100 as annual rent, the assessment is on the basis applicable to tenures.
4. When a person holds two jamas paying a total rent of more than Rs. 100 he is for the purposes of assessment, a holder of a tenure. That seems to me to be the correct determination of the point in dispute in this case. The point is not particularly clear and speaking for myself I am much obliged to the learned vakils for their arguments. In my opinion the intention of the statute is the intention which the learned Subordinate Judge imputes to the statute. In my opinion this appeal should be dismissed with costs.
C.C. Ghose, J.
5. I agree.