O'Kinealy and Rampini, JJ.
1. The only point raised in this appeal is as to whether the defendant is liable to pay road cess to the plaintiff at the same rate as that at which the plaintiff has been held bound to pay road cess to the Collector.
2. The plaintiff is the holder of an estate in which the defendant holds a patni tenure, and the plaintiff has been held liable by the Collector to pay road cess upon the basis of certain valuation rolls of 1892. The defendant has been paying road cess for some years at the rate specified in these papers, but in this suit he contends that he is not liable to pay road cess at that rate any longer, in consequence of the valuation roll not having been published under Section 35 of the Cess Act, and that he is liable to pay according to the previous valuation' of 1889.
3. The Subordinate Judge has found in favour of the defendant, being of opinion that the publication of the valuation rolls under Section 35 of the Cess Act is a condition precedent to any liability attaching to the defendant to pay road cess in accordance with these valuation rolls. The plaintiff now appeals to this Court. We are of opinion that the learned Subordinate Judge is incorrect in the view which he takes of the law. He relies upon the ruling in the case of Ashanullah Khan v. Trilochan Bagchi (1886) I.L.R. 13 Cal. 197 in which it was held that when under the Act certain things are required to be done before any liability attaches to any person in respect of any right or obligation, it is for the person who alleges that liability has been incurred to prove that the things prescribed in the Act have been actually done, and he appears to think that this ruling lays down the general principle that the publication of the valuation rolls under the Cess Act is a condition precedent to the attaching of any liability to pay road cess. We are, however, of opinion that this ruling [(1886) I.L.R. 13 Cal. 197] is no authority for the defendant being held not liable to pay the road cess in the case. The ruling cited by the learned Subordinate Judge refers to the publication of valuation rolls under Section 52 of the Cess Act, which relates to payment of road cess for rent-free lands; and it appears from Section 56 of the Act that owners of rent-free land are not bound to pay road cess before the publication of the valuation rolls under Section 52. The present case, however, does not relate to the road cess of rent-free lands; it relates to road cess of rent-paying lands, and the publication of the valuation rolls of such lands has to be made, not under Section 52, but under Section 35 of the Act. Then, there is no provision in the Act relating to rent-paying lands corresponding to Section 56 of the Act. On the contrary, it would appear from the provisions of Sections 36 and 41 of the Act that the publication of valuation rolls is not a condition precedent to the attaching of liability to pay road cess for rent-paying lands. Section 36prescribes that 'except as otherwise in this part' (that is Part II) expressly provided, 'every valuation and revaluation made under this chapter shall remain in force for the term of five years; 'and Section 41 lays down that' except as otherwise in this Act provided, every holder of a tenure shall yearly pay road cess to the holder of the estate or tenure within which the land held by him is included.' There is, therefore, no provision prescribing that the publication of the valuation rolls is necessary before any liability attaches to the tenure-holder. On the contrary, it would seem that ' except as otherwise provided,' he is bound to pay the road cess on the preparation of the valuation rolls, and there is no provision in the Act which exempts him from, or limits his, liability.
4. For these reasons we think the view taken under Section 35 by the learned Subordinate Judge is incorrect, and we accordingly decree the appeal with costs in this Court and with proportionate costs in the Court below.