1. The whole of village Khankhanapore originally appertained to Touzi No. 897 of the Faridpore Collectorate. The zemindar was Mahim Chandra Roy. Ultimately at devolved upon his two grandsons Upendra Narayan Roy and Suprasonna Roy being the sons of Bepin Behary Roy. At a partition between them the said zemindary was allotted to the share of Upendra. It was sold in execution of a mortgage decree obtained against him to the Roys of Bhaggyakul. Admittedly a portion of the said village was acquired in 1897, by Government under the Land Acquisition Act and is now in the possession of the Bengal and Assam Railway as being part of the Railway track, of the station and its yard. There was another acquisition under the Land Acquisition Act in 1887 for the use of the said railway but the location of that piece of land is one of the questions raised before the lower Courts and has also been mooted before us.
2. At one time the river Padma was to the immediate east of the said village. It has now moved far away leaving a small silted up khal, or closed kole, which is now the eastern boundary of the village. The khal has no perennial connection with river and becomes dry or almost dry from Augrahayan to Jaistha. In the rainy season only it maintains connection with the river Padma and so becomes navigable by boats. To the immediate south of the railway land and to the west of a portion of the said khal and abutting thereon there is old market place. The hat sits twice a week, but the bazar is held daily. The market place is also called a Bandar as it abutted at one time on the river Padma and now abuts on a khal which in the rainy season (Assar to Kartic) is used as a boat passage for bringing merchandise for sale in the market place. The market place is called Fultala Hat-Bazar of Fultola Hat Bazar Bandar. The place is of importance, because it is a mart where merchants buy jute from the Beparis in large quantities. It is admitted that jute is brought there by boats during the rainy season (Assar to Kartic) and by carts and on horse back during the dry season (Augrahayan to Jaistha). The boundaries of the Fultola Hat Bazar Bandar are-north railway land, south some houses of tenants within the village Khankhanapore, east the said khal, west a road running almost parallel to and at some distance to the east of the railway track. The khal runs along the entire length of the village Khankhanaporo and beyond it. The boundaries of village Khankhanapore are as follows: north-village Saidpore, Krishnapore, Dayalbanda and Kaligunga, south-village Dhuldi, east-Char Khankhanapore, which is on the other side of the said khal, west-village Kasimnagar.
3. Kamala Kanta Kundu. was the father of plaintiff 1 and grand-father of plaintiff 2. He held the Fultola Hat Bazar Bandar on successive meadi ijaras. After his death his sons held the same on meadi ijaras up to 1900. On 5th Assin 1307 (-September 1900) Bepin Behari Roy, the then zemindar of the said zemindary and who was at that time the owner of the rest of the lands of village Khankhanapore, other than the lands acquired for the use of the railway, granted a be-meadi (permanent) ijara to Dinanath Kundu, a son of Kamala Kanta Kundu. It is admitted that Dinanath took the said be-meadi ijara on behalf of all his brothers. The rights conferred by and the terms of the be-meadi (permanent) ijara are to be found in a Kabuliat (marked Ex. 8) which Dinanath Kundu executed in favour of Bepin Behary Roy on that date. The plaintiffs have brought this suit on the basis of this be-meadi ijara.
4. The defendant is a jute merchant. He buys large quantities of jute in Khankhanapore every year, presses then into bales, in his press house and exports them to Calcutta and other places, where he sells them. Up to the year 1342 he had his guddee and godown in the Fultala Hat Bazar and made his purchases at that guddee. In 1343 ho took a lease of a portion of the railway land, built his godown and press house there and shifted his guddee to that place.
5. The suit is for recovery of money which the plaintiffs claim to be payable to them on account of market tolls, which they say they are entitled to at a certain rate on jute which the Beparis had sold to the defendant from Assar 1343 to Bysack 1344 B.S. It was dismissed by the learned Subordinate Judge but has been decreed on appeal by the learned Additional District Judge for the sum of Rs. 2040.
6. In the plaint the plaintiffs alleged that when in the past the zemindars were in khas possession they levied not only rent in respect of the guddees, godowns and 0shops and stallage fees on stalls situated within the market place but also tolls from buyers and sellers on the sale of goods of all kinds effected not only within the said hat bazar bandar, or on the khal or the 'ghat,' but also on sales effected at any place within the village Khankhanapore and that the plaintiffs and their predecessors on the basis of the successive meadi ijaras, and thereafter on the basis of the be-meadi (permanent) ijara, which Dinanath Kundu took on behalf of himself and his three brothers, in the year 1307, have and had the right to collect and had been collecting rent and stallage fee in respect of guddis, godowns, shops and stalls situate within the market place as also tolls on the sale of goods effected not in the market place, and on the khal but also at any place within the said village. The plaintiffs further alleged that the buyers (Mahajans) agreed to collect tolls at a certain rate from the sellers of jute and to pay them over to them. The charging paragraphs are paras. 8 and 9. They state therein that the defendant purchased large quantities of jute, namely 1,25,000 maunds (raised to 1,31,023 maunds by amendment) in the 'hat, bazar and ghat' situate within village Khankhanapore and carried them to his godown on the railway land by using the bridge and road belonging to the plaintiffs. The liability of the defendant has thus been rested on the fact of his purchases being made in the Hat Baiar Bandar and Ghat of village Khankhanapore and not at any other place within that village. The defendant denied all and every allegation made in the plaint. In para. 13 of his written statement he pleaded that he had purchased during the period in claim all the jute at his godown situate within the land acquired for the railway, the sellers carrying the jute to that place over the Government acquired land, that he never went on any portion of the land of the village that belonged to the zemindar to effect his purchases and had occasions only to go to the 'railway ghat.' His case was that that portions of khal where the railway ghat was situated and strip of the land adjoining that portion of the khal are included in the land acquired for the railway under the Land Acquisition Act. Having regard to the last mentioned defence a commissioner was appointed for local investigation. He was asked to relay the acquisition plan of 1897 only. He found that the strip of land which included the bank of the khal and laying to the east of the defendant's godown on the admitted railway land, as also the portion of the khal to the immediate east thereof where the railway ghat is situate are not covered by the said plan. The defendant contended before the Court of first instance that though those lands and that portion of the khal had not been acquired in 1897, they had been acquired by the Government by an earlier land acquisition proceedings, namely of 1887. He produced two plans-the land acquisition plan of 1887 and a combined plan of both those acquisitions made by the railway department. The learned Subordinate Judge accepted his contention on this point and on the finding that the defendant had made all his purchases at such places of the village Khankhanapore which did not belong to the plaintiffs' lessor, namely the zemindar of the aforesaid revenue paying estate, dismissed the suit. On appeal the learned Additional District Judge reversed the judgment, and decree of the learned Subordinate Judge. The substance of his material findings is as follows:
(1) that the land and portion of the khal to the east of the lands acquired in 1897 had not been proved to have been acquired in 1887 under the Land Acquisition Act for the Railway. They still belong to the zemindar of the said revenue paying estate;
(2) that no purchase was made by the defendant on the site of Hat Bazar Bandar, but sales made on the railway land are treated by the plaintiffs as sales in the hat-bazar:
(3) that the defendant did make some but not all his purchases in his godown situate on the railway land;
(4) that the purchase made by him during the rainy season-Assar to Kartic 1343-could not be said to have been made in his godown, for the purchases may have been completed there but commenced on the khal which belonged to the zemindar and that moreover the defendant was liable, as the sellers used the khal for bringing the jute to the defendant's godown; (5) that the purchases made by the defendant in the dry season-Augrahayan 1343 to Bysack 1344-had been made in the defendant's godown on the railway land, but the sellers had used the bridge and the road of the plaintiffs; and.
(6) that the plaintiffs had established their right to levy tolls on jute sold within the village Khankhanapore, even if that portion of the village did not belong to the plaintiffs' lessor, the zemindar of the said revenue paying estate, if use had been made of the plaintiffs' khal or land.
7. He commented on the defendant's pleading and stated that the case pleaded in his written statement was not that he had made all the purchases at his godown on the railway land but that he had made some purchases at least on the 'railway ghat' and that portion of the khal which he had alleged to he the property of the railway but which he (the learned Additional District Judge) found to be otherwise. We may at once say that the learned Additional District Judge has misconstrued para. 13 of the written statement. The definite case there pleaded is that he had made all the purchases at his godown on the railway land and nowhere else. We may also point out that the learned Additional District Judge has made a new case for the plaintiffs by saying that purchases made in the rainy season, when the khal was navigable by the boats could not be said to have been made at the defendant's godown on the ground that the sales had commenced at the landing places on the khal and completed at his godown. This part of the judgment is also subject to the further infirmity, namely there is no evidence in support of this finding of his. In fact even the plaintiffs' witnesses admitted that all the jute were brought by the sellers on the railway land and close to the site of the defendant's godown on the railway land, the jute was sorted there, the price was settled at the defendant's godown, the goods were weighed there and the price was paid there. The finding that the sales must be deemed to have been made in the hat bazar as the plaintiffs treated the railway land to be part of the market place is obviously wrong and has not been sought to be supported by the plaintiffs' advocate. That finding also proceeds on a new case made for the plaintiff and has no evidence to support it, for the circumstances mentioned by the learned Judge would not in law make the railway land a part of plaintiff's hat bazar. Their treatment would not be enough. As admittedly the defendant made no purchase on the site of the hat bazar or on any portion of the said village which belong either to the plaintiffs or their lessor, the plaintiffs can succeed only (a) if they can establish that they have the right to levy tolls, because the sellers in bringing the jute to the defendant's godown had used the road, khal or bridge which belong to the plaintiffs' lessor or (b) if they, the plaintiffs can establish that they have the right to levy tolls on the sales effected in any part of the village Khankhanapore irrespective of the ownership of that part of the village.
8. Before dealing with these two questions we would consider a point urged by the appellant's advocate. He urges that the learned Additional District Judge has not properly dealt with the finding of the learned Subordinate Judge on the question of the extent of the railway land. He says that at any rate the case should be remanded, so that the land acquisition plan of 1887 may be relaid by the Commissioner. We cannot accept any one of these contentions. The learned Additional District Judge gave cogent reasons for not accepting the finding of the trying Judge and we do not consider his judgment on this point not to be a proper judgment of reversal. We do not also think that at this stage we should direct the relaying of the aforesaid plans. The local investigation was ordered on 27th July 1937. At the time of the investigation by the Commissioner the defendant did not ask for relay of either the 'combined plan' or the land acquisition plan of 1887. The Commissioner submitted his report on 2nd March 1938. He the defendant, had secured copies of those plans on 20th July 1938, about nine months before the trial had commenced. The hearing in Court began on 27th March 1939. He filed the plans in Court only seven days before, namely on 20th March 1939, and even then did not ask the Court to direct the Commissioner to relay them. He had ample opportunity, and if he had asked the Court to direct the Commissioner to relay those plans immediately or soon after he got the copies, the relay by the Commissioner would have been done long before the case was taken up for hearing. In these circumstances we cannot accede to the appellant's prayer for a remand.
9. Although in their plaint the plaintiffs alleged that both the sellers and the buyers had to pay tolls, the case as presented by them at the hearing of the suit was that the liability to pay tolls on the jute sold was the liability of the sellers only and the buyers made themselves liable by reason of contracts with the plaintiffs by which they undertook to collect the tolls from the sellers and to pay them over to the plaintiffs. The Courts below have not adverted to the legal grounds on which the right to levy market tolls from the sellers can be rested. In Bengal there is no market franchise. The right to hold a market, hat or fair is an incident of ownership of the land Hem Chandra v. Kristo Chandra 7 A.I.R. 1920 Cal. 255 and Province of Bengal v. Hingun Kumari 33 A.I.R. 1946 Cal. 217.
10. A market toll has here as elsewhere for its foundation the use of the market, A market means the concourse of buyers and sellers in a defined place. Chat use by the sellers need not be occupation, much less exclusive occupation, of the soil of the market place As the right to hold a market, hat or fair does not in Bengal rest on franchise but Hows from the ownership of the site, the right to levy market tolls has for its origin and rests on implied contract (where there is no express contract) with the owner of the site, the implied contract being that the seller would pay tolls on the goods ho sells in consideration of the owner of the site allowing him the use of the market, that is to say, giving him the advantage of meeting the buyers who gather on the site of the market the market place-which belongs to him, In the case where the owner of the site has let out the market, hat or fair to an ijaradar, giving him no interest in the soil of the site, but only an exclusive licence to use the site, where there is the concourse of buyers and sellors, the same considerations would be applicable, for though he, the ijaradar, has no interest in the soil, the licence given to him by the owner of the soil of the market place gives him the right to exclude any prospective seller from the site, where the market, hat or fair is held. The permission given by the ijaradar to enter the site, thereby enabling the seller to have the privilege of meeting the large number of prospective buyers gathered there, would therefore be the consideration moving from the ijaradar of the market, hat or fair for the fees or toll that the seller has to pay on the sale of his wares, A market toll therefore can be levied in Bengal by the person who has some right in respect of the market place, a parson who has either such an interest in the soil of the market place which entitles him to have khas possession or a person who has an exclusive licence from the owner of the site to use the site. It is a loose way of speaking to say that the right to levy tolls in Bengal rests on custom. The practice of levying tolls would only be evidence of an implied contract, when no express contract is alleged.
11. Before the plaintiffs can recover monies from the defendant on account of tolls they must prove that the sellers were under a liability to pay them tolls, and then the defendant could be made liable on the footing that he had taken from. the sellers what was legally due to the plaintiffs. The view of the learned Judge that they were liable to pay tolls to the plaintiffs, because they used the khal, the road or the bridge in bringing the jute to the railway land cannot, in our judgment, be upheld, for the plaintiffs had not by their bemeadi lease, Ex. 3, acquired any right of property either in the khal or in the road or the bridge, or any license to exclude other from them, The other reason why we cannot uphold the view of the learned Additional District Judge is that the plaintiffs did not make the case in their plaint that the liability to pay tolls arose by reason of the sellers using the road, khal or the bridge. So far as the khal is concerned the Record of Rights prepared and published under chap. 10, Ben. Ten. Act, records it as the khas property of the plaintiffs' lessors, namely the zemindar of the said revenue paying estate, and that the public had a right of passage over it. No attempt was made by the plaintiffs to rebut the presumption of correctness which attaches to that entry under Section 103B, Ben. Ten. Act.
12. There remains for consideration the last ground on which the lower appellate Court has based its judgment. The plaintiffs have averred in their plaint that tolls are payable on sales effected at any place within village Khankhanapore and have led-evidence to that effect. The reasons which we have given for holding that there cannot in law be any right to levy tolls from the sellers, where the sellers had not made use of the plaintiffs' property would equally apply where the sales were effected not on the land owned by the plaintiffs' lessors, namely the zemindars but on the railway land, though the railway land was within village Khanldiariapore. But assuming that plaintiffs' lessors had the right to levy tolls on sale of jute effected in any part of the village, even if that part did not belong to them, the question is whether the said zemindar gave that right to the plaintiffs. To determine this question the bemeadi lease (Ex. 3) has to be looked into to find out what was demised to the plaintiffs' predecessor, Dinanath Kundu. The first parcel demised is the market place, the boundaries of which are described with precision in that document. The second parcel is described as the 'ghat' within the village Khankhanapore and within certain defined boundaries. Those boundaries are the boundaries of the entire village. The word 'ghat' means the landing place abutting on a river or water course. There is nothing in Ex. 3 to indicate that it was used in a different sense. In para. 2 of Ex. 3 the ijaradar is given the following rights namely (a) the right to realise rent (both Chadina and Katkina) from the shops, etc., situate within the market place; (b) the fees from the gohata, (cattle mart) and (c) concerning the ghat and in respect of the sale of paddy, rice, timber, etc., dalali (brokerage fee), kayali (weighman's fee) khutagari (fee for imbedding pegs for tying boats), kathamehal (fees desirable from fish cut on the bank of the khal and then exported) and guddi mera mati (fee for allowing boats to be repaired on the bank of the khal) etc. If the right to levy tolls on sales made within any place in the village was intended to be given nothing would have been easier than to give expression to that intention by mentioning the village Kbankhaua. pere itself instead of using the expression 'ghat within that village,' It seems to us that the boundaries of entire village were mentioned in defining the 'ghat' with the object of providing for the contingency of the khal shifting its site. It is well known that koles or khals which flow into or emerge from, such a shifting river as the Padma is, shift with the change of the river course. It would not be beyond the range of possibility of the river Padma coming upon the site of the existing khal, swallowing it and some parts of the whole site of the village besides, and then recording later on leaving a sota or Khal at a different site but within the village boundaries.
13. For the reasons given above we allow the appeal and restore the decree of the learned Subordinate Judge. The plaintiffs to pay to the defendent the costs of this Court as wall as the costs of the lower appellate Court.
14. We may notice two other points urged by the appellant's advocate, They are that the lower appellate Court way wrong in admitting additional evidence, and that one of the heirs of the original defendant, who had died during the pen-dency of the appeal in the lower appellate Court, nemaly his widow (the second wife had not been sehstituted and for that defect the lower appellate Court ought to have dismissed the appeal, In the view we have taken it is not neccssary to consider the questions in detail. On the facts we are unable to say that the lower appellate Court was not right in admitting the additional evidence. As Bejoy, the eldest son of the original defendant has been found by the learned Judge to be the karta of the joint family, he represents the estate of the deceased, and so there is no substantial defect in the substitution, and even if there is any defect, that in our opinion did not make the appeal incompetent. The most that could have been said is that the decree of the lower appellate Court would not have bound the legal representative so left out, namely the widow of the original defendant, if it had been affirmed by us. The cross objection is not pressed, it is dismissed without costs.