1. This is an appeal from a decision of the Additional Subordinate Judge of Burdwan, dated the 24th of June 1898.
2. The suit is one for arrears of dak cess amounting to Rs. 56 2 annas 9 pies; and the only question is whether under the terms of the contract which was entered into between the plaintiff and the defendant's predecessor, the defendant is liable to pay dak cess at all.
3. The defendant does not deny that when he purchased the putni at one of the half-yearly sales under Regulation VIII of 1819 he was aware of the provisions contained in the kabuliat which his predecessor had given for this putni, and that he gob the putni subject to these provisions.
4. The only contention raised before us by the learned Counsel for the defendant-appellant is as bo the construction to be pub upon the terms of the kabuliat. The clause in the kabuliat relating to the payment of dak cess is as follows: 'in whatever places and stations in the mofussil there are and may hereafter be dak chowki houses and practice of running dak by the order of the magistrate, I will have the power to appoint amlas of those dak chowkis of different stations, to pay their salary and expenses and to superintendent them, and you will have no connection therewith. If I fail to pay the same and you pay it, I will repay the whole amount with interest. If I fail to pay, you will realize from me the said amount with interest by suit.'
5. Now, we think there can be no doubt that the meaning of this clause is that, under the system of zemindari dak then prevalent, the putnidar was to pay the charges due for dak runners and so forth, and if he failed to do so the zemindar was entitled to recover by suit the amount which he would have to pay in place of the putnidar.
6. Learned counsel for the appellant however contends that now-a-days that system of zemindari dak has been done away with; that a new system has taken its place, and that the provisions of the clause in the kabuliat just cited do not apply to the system of zemindari dak now in vogue. But we think that there can be no doubt that this clause imposed upon the putnidar the liability of paying dak charges; and although the system has been changed it does not appear to us that the liability of paying such charges no longer exists. And we are fortified in this view by the case of Saroda Soondary Debea v. Wooma Churam Sircar (1865) 3 W. R. S.C.C. Ref. 17. The clause in the putnidar's kabuliat in that case was very similar to the clause in the kabuliat in the present case; and the Judge who decided that case came to the conclusion that the terms of the contract made while Section 10, Regulation XX of 1817, was in force between the zemindar and the putni lessees having imposed upon the latter the charge of the maintenance of the zemindari dak, this liability was not affected by the subsequent repeal of the Regulation by Act VIII of 1862, B.C.
7. The result of that case was that the plaintiff, as zemindar, was held entitled to recover dak, although the system of the zemindari dak had changed and the clause in question was no longer directly applicable.
8. Then, in the case of Bissonath Sircar v. Shurno Moyee (1865) 4 W.R. 6 it was held that Act VIII of 1862 (B.C.) did not relieve putnidars from their liability under an old lease of paying the zemindari dak charges.
9. Learned counsel for the appellant contends that this last mentioned case has been practically overruled by the ruling in the case of Rakhal Dass Mookerjee v. Shurno Moyee (1866) 6 W.R. 100 where it was laid down that where the terms of a putni lease did make the putnidar liable for the maintenance of the zemindari dak, the putnidar was not liable for a tax which was imposed on the zemindar by Act VIII of 1862 (B.C.)
10. We are not prepared to agree that this ruling has overruled the previous one in the case of Bissonath Sircar v. Shurno Moyee (1865) 4 W.R. 6. But in the present case it would seem to have no application, for the provisions of the defendant's putni lease do make the putnidar liable. In any case there remains the case of Saroda Soondury Debea v. Wooma Churn Sircar (1865) 3 W.R.S.C.C. Ref. 17 from which we see no reason to dissent, but with which we fully agree, and for these reasons we must follow it in this case.
11. The appeal is dismissed with costs