Tottenham, J. (Norris, J., concurring)
1. In this case the plaintiff, who is the appellant in this Court, was a putnidar of the Maharajah of Burdwan. As a putnidar he had to pay road cess and public work cess, in respect of certain debutter lands lying within the ambit of his putni. He sues the Maharajah to recover these cesses from him.
2. In the first Court there appears to have been an admission made by the. Maharajah's pleader that the Maharajah had some right in the lands in dispute. The Munsif says: 'The defendant, admitting his title to the land in question,. urges in his written defence that the plaintiff should have sued the person who is in actual occupation of the lands;' and the Munsif was of opinion that that defence had no foundation in law, that inasmuch as the Maharajah admitted himself to be the proprietor of the rent-free lands he was liable for the cesses. The first Court, therefore, made a decree in favour of the plaintiff.
3. On appeal the Subordinate Judge reversed the decision of the Munsif and dismissed the suit apparently on two grounds. He thought that the plaint had not been rightly framed, for whereas the plaint described the property as debutter, i.e., the lakhraj property of an idol, Shib Thakoor, the defendant Maharajah was sued in his capacity of proprietor, though the land belonged to an idol and not to the Maharajah. If the Maharajah was the holder of it at all, he must have held it as shebait. The Maharajah not being sued in that capacity, the Subordinate Judge thought that he was not liable for the amount claimed. The Subordinate Judge further differed from the first Court as to the construction to be put upon the words of the Cess Act, Section 56, Bengal Act IX of 1880. The Munsif held that it was quite enough for the defendant to admit his ownership of the land to make him liable for the cesses thereof. The Subordinate Judge says that it was not enough. The defendant must not only be proved to be the owner, but also the actual holder of the land. He points out that Section 56 recognizes three classes Of persons as bound to pay cesses for rent-free lands: First, the owner and holder of any rent-free lands; secondly, any person in receipt of the rents and profits; and, thirdly, every person in possession and enjoyment of the land. The Subordinate Judge holds that the terms 'owner and holder' must relate to the same person, that the owner is not liable to pay cesses unless he is also a holder; and that in the present case the Maharajah, not having admitted being in possession, nor having been proved to have been in possession in any capacity, he is not liable for the cesses claimed.
4. As regards the first ground stated, we think the Subordinate Judge was right, and that upon the suit as framed, the plaintiff had no right to recover the cesses from the Maharajah. From the plaintiff's own showing the debutter land belongs to an idol. The party liable to those cesses is, therefore, that idol, through its shebait, or some person in receipt of the rent and profits of the land, or some person in actual possession of the land in occupation of it. The suit against the Maharajah in his capacity of proprietor must, we think, fail. He is not the proprietor of the rent-free lands if they belong to an idol; and in his capacity of proprietor of the estate within the limits of which geographically the debutter lands are situated, he would not be liable, excepting he paid the cesses in the first instance and recovered them from the idol afterwards, or from the plaintiff putnidar. Upon that ground alone, therefore, we think that the decree of the lower Appellate Court should be affirmed.
5. As regards the other ground stated by the Subordinate Judge, we are of opinion that he is mistaken in his construction of the law. We do not take the words 'owner and holder' in Section 56, when referring to rent-free lands, to be limited to any one individual, or that the owner must also be in actual possession. We think that these words are intended to apply to both classes of cases, namely, where the lakhraj land is the actual property of the owner, and where, as in the present case, the debutter being the property of an idol is held on behalf of that idol by a trustee or shebait. We think that the Act contemplates the payment of the cesses by persons beneficially interested in the land in respect of which the cesses are levied, and that in the present case, the Maharajah, neither being admitted nor found to be beneficially interested in this debutter land, the lower Court was justified in holding him free from the liability which the plaintiff seeks to impose upon him.
6. The appeal is dismissed with costs.