1. The plaintiff sued to recover arrears of drainage cess for the years 1334 to 1337, and for damages. He is the proprietor of estate No. 376 of the 24-Parganas Collectorate and has to pay drainage cess to Government. The Record of Rights shows the drainage cess as recoverable by plaintiff from defendant.
2. The defence is that defendant claims to hold the lands as nishkar lands appertaining to lakheraj No. 386-B and that defendant pays drainage cess direct to Government and not to the plaintiff. The Munsiff referred to the entry in the Record of Rights and said that the question was whether it had been rebutted. He went into the question whether on the evidence it was shown that the holding in suit belonged to lakheraj No. 386-B, and he finds that it does and that Government has the preferential right to the drainage cess. On appeal before the Subordinate Judge it was contended that no appeal lay under Section 153, Ben. Ten. Act, because no question had been decided relating to title to land or to any interest in land as between parties having conflicting claims thereto, and the Court upheld that contention.
3. As against this the appellant relies on the principle of Sita Nath Pal v. Kartick Gharmi (1904) 8 CWN 434, where it was held that an appeal did lie in a case where plaintiff and defendant both claimed under the same landlord, and the plaintiff alleged that defendant was his sub-tenant; it was therefore a case of an interest in land between parties having conflicting claims thereto. In the present case I think no such question can be said properly to arise. The defendant was admittedly the lakherajdar; his title in that respect is not denied. The only question for determination was whether the cess should be paid direct to Government or through the plaintiff. This can hardly be said to raise a question between the parties of the nature referred to in the section. The rule is discharged with costs, one gold mohur.