Rampini and Pratt, JJ.
1. This is an appeal against a decision of the Subordinate Judge of Burdwan, dated the 23rd of June 1898.
2. The suit is one for arrears of road and public works cesses. The plaintiff states that the amount of cesses due per annum from the defendants is Rs. 28. The defendants say that the sum they are liable to pay on this account is Rs. 5-9 1/2 annas only.
3. The Subordinate Judge has given effect to the contention of the defendants. He says that in two previous suits the plaintiff had recovered cesses from the defendants at the rate of Rs. 5-9 1/2 annas, and that, therefore, the plaintiff is not entitled to recover cesses at a higher rate than Rs. 5-9 1/2 annas which has hitherto been decreed and realized on behalf of the plaintiffs.
4. In addition to these previous decrees there is a valuation roll, Exhibit I, produced as evidence in the case, upon which the Court of first instance relied, and according to which the Munsif says the plaintiff is entitled to Rs. 28 as cess. The Subordinate Judge, however, rejected this valuation roll as of no effect, because it ' was not duly served as required by law ' and that ' it purports to be served by the serving peon of the Collectorate in the presence of one chowkidar only, whereas the law provides otherwise under Section 35 of the Cess Act. ' The learned pleader for the appellant urges (i) that the Subordinate Judge is wrong in the view which he takes of the effect of the previous decisions, and (ii) that he is wrong in rejecting the valuation roll (Exhibit I), as of no effect, in this case.
5. In our opinion there is great force in these pleas.
6. The amount of road-cess payable by landlords and tenants is not fixed for all time. It is a variable quantity changing from year to year, according to the valuation of the estate made by the Collector and the rates fixed by him for the levy of cesses for the year. Therefore, because the plaintiff obtained decrees for cesses at the rate of Rs. 5-9 1/2 annas on two previous occasions, it does not follow that he is to get cesses at that rate for ever. No doubt these decrees are admissible in evidence in this case, and there is a presumption in favour of the defendants that they are liable to pay cesses at the rate of Rs. 5-9 1/2 annas. But these decrees go no further. They do not have the effect of res judicata, and the Subordinate Judge is in error in saying that these decrees show that the plaintiff is not entitled to recover at a higher rate.
7. Then, the Subordinate Judge appears to be wrong in saying that the valuation roll (Exhibit I) is of no effect, because it was not duly served. Liability to pay road-cess, so far at least as rent-paying lands are concerned, does not depend upon the publication of the valuation roll. This may be the case as regards rent-free lands, as was held in the case of Ashanuullah Khan Bahadur v. Trilochan Bagchi (1896) I.L.R. 13 Cal. 197 but this is not the rule with regard to rent-paying lands,' as has been held in the case of Bhugwati Kuweri Chowdhrani v. Chutterput Singh (1898) I.L.R. 25 Cal. 725, in which it is said that having regard to 'the provisions of Sections 36 and 41 of the Road Cess Act, the publication of a valuation roll is not a condition precedent to the attaching of liability to pay road-cess for rent-paying lands.'
8. The pleader for the respondent urges that the valuation roll (Exhibit I) relates to the year 1885, and that, therefore, it existed and was produced in the previous suits between the parties. That may he so; but that does not render it valueless now. 'We are not informed for what reason the Judge who disposed of the previous suit did not give effect to the valuation roll. It might not have been properly put in evidence in those cases. But whatever the reason may have been which led the Court in the previous suits not to rely upon that roll, there is no reason why it should not he relied upon in the present case, if it is admissible in evidence and properly put before the Court, and is not shown to be superseded by any later valuation roll.
9. For these reasons we set aside the decision of the Subordinate Judge, and remand the case to him for a fresh decision with regard to these observations.
10. The cost will abide the result.