O'Kinealy and Ghose, JJ.
1. This was a suit to enforce a mortgage bond. It was executed in the town of Calcutta, and what was hypothecated to the plaintiff was a certain sayer compensation payable at the General Treasury at Calcutta. Both the plaintiff and the defendants are residents of Calcutta, and the main question that arises in this appeal is whether the suit was cognizable by the Munsif's Court at Diamond Harbour.
2. The ground upon which it is alleged that the suit would lie in the Munsif's Court at Diamond Harbour is that the sayer compensation, which was hypothecated by the bond, was compensation in the nature of malikana, which the Government allowed in lieu of sayer collections from a hat within the jurisdiction of that Court: and in regard to this ground the question that we have to consider is whether the said sayer compensation is immoveable property, or any interest in immoveable property, within the meaning of Section 16 of the Civil Procedure Code.
3. Now, it will be found on a reference to Regulation XXVII of 1793, and its preamble, that the duties which the owners of gunges, bazaars, hats, etc., used to levy on commodities sold in those places, were designated sayer collections, and these duties, it was declared by the said Regulation, to be 'internal duties,' which it was the exclusive privilege of Government to impose and collect--a privilege not exercisable according to 'a well-known law of the country,' by any subject without their express sanction. These duties it will be observed, were in no sense rent or profits which the owner of a hat or bazaar was entitled to receive for the use of land, or for houses, shops, or other buildings erected thereupon. And by the Rules published on the 11th June 1790, the landholders were prohibited from collecting such duties; it being declared at the same time that they should thereafter be levied by Government, the Government paying to the landholders one-tenth of the collections after defraying the establishment charges (see Section II). Subsequently on the 28th July 1790, it was resolved to abolish these duties altogether, and to allow the owners of the hats, gunges and bazaars certain compensations in lieu of the share of the collections which they used to receive (section IV); and by a rule passed on the 6th August 1790 it was declared that 'the proprietary right in the ground on which hats and bazaars are held is to continue vested in the landholders, but the public are to have the free use of it,' and that 'the ground on which hats and bazaars are now held is accordingly to be continued to be appropriated to this purpose (i.e., exposing goods for sale) free of all charges to the vendors.' (See Section V). Then, by the Rules passed on the 8th April 1791, the principle upon which the compensation was to be fixed, and the mode in which, and the parties to whom, it was to be allowed, were laid down (section VI).
4. This was the state of the law under which sayer compensations were allowed by Government; and we think that the examination of the preamble and the several sections of Regulation XXVII of 1793, we have referred to, shows that the said compensation had no reference whatever to any rent or profit arising out of the land, but to the internal duties on commodities which were levied when such commodities were exposed for sale--duties which, as was distinctly declared, the owners of the hats and gunges were not entitled to levy as landholders. The compensation that was allowed to them was not because they were, by reason of the abolition of the sayer duties, deprived of any portion of the profit arising out of the land, but because, as we can gather, they were in the habit of levying such duties for a long time; and the Government thought proper in the first instance to allow them one-tenth of the collections, and eventually, when they abolished the duties altogether, they determined to allow the landholders some compensation year after year, for the loss they suffered by being deprived of a share of the collections. In this view of the matter, it seems to be obvious that sayer compensation does not in any sense partake of the nature of 'malikana,' which, as it is well understood, is a right to receive a portion of the profits of an estate, for which Government may make a settlement with another person, when the real proprietor neglects to take a settlement. In that case, the proprietor loses the land: here the landholder does not lose the land or any portion of the profit arising out of the land.
5. The learned Judge of the Court below refers in his judgment to the fact that the Collector has assessed on the defendants road cess on account of the sayer compensation. Whether the Collector was right in doing so or not, it is not necessary for us to express any opinion. All that we need say is that this fact cannot give to the sayer compensation a character which, under the Regulation and the orders of Government we have referred to, it does not possess.
6. The learned Counsel for the plaintiff, in the course of his argument, relied upon the observations made by a Division Bench of this Court in the case of Bungsho Dhur Biswas v. Mudhoo Mohuldar 21 W.R. 383. But those observations do not help him. The question that the Court had then to consider was indeed very different from that which we have now to determine; and the hat with which we are concerned is a hat which (unlike the hat in that case), it must be taken, existed at the time of the passing of Regulation XXVII of 1793.
7. A question was raised before us on behalf of the defendants whether the sayer compensation is not in the nature of a pension contemplated by the Pensions Act (XXIII of 1871); but in the view we have already expressed, it is not necessary to determine this question.
8. The result is that the suit must be dismissed upon the ground that the Munsif's Court at Diamond Harbour had no jurisdiction to entertain it; and that this appeal will therefore be decreed with costs.