1. This is an appeal by the plaintiffs in a suit for cancellation of a certificate made under the Public Demands Recovery Act, 1913, for recovery of the sum paid in satisfaction thereof and for an injunction to restrain the Secretary of State for India in Council from making and enforcing similar certificates in furture.
2. The case for the plaintiffs is that on the 7th March 1917, a certificate was made against them for Rs. 40-3 on account of peshkush in respect of land situated in Mouza Mouhati, Hudda Sham Chok, Peruana Koormal, within the jurisdiction of the Court at Contai. The plaintiffs preferred an objection before the Revenue Authorities on the 30th May 1917, which was summarily rejected without investigation. Thereupon the plaintiff were constrained to pay the sum claimed on the 5th July 1917, when their goods were attached in execution of the certificate. The substance of the contention of the plaintiffs is that the sum claimed as peshkush is not legally recoverable from them. On behalf of the Secretary of State for India in Council, a written statement was filed in which the following allegations were made: 'The plaintiffs are liable, to pay peshkush for the lands of Nankar Mahal situated if village Dihi Franoha in Fergana Koormal Taraf Francha, that the peshkush payable in respect of the above lands is annexed to the mal assets of the estate Jallamutha and the plaintiffs are, therefore, liable to pay peshkush to the proprietors of the estate Jallamutha, that is, to the Secretary of State for India in Council, who is in possession of the estate ; that there is no mal land of Jallamutha in village Dihi Franoha; the peshkush in question which is a mal asset of Jallamutha estate used to be collected for the sake of convenience with the mal rent of village Mouhati in estate Jallamutha which is close to it.'
3. The Courts below have dismissed the suit on the ground that peshkush is payable for the upkeep of the embankment by which the lands of the village are benefited. In support of this view reliance has been placed upon the decisions in Udoy Narain Jana v. Secretary of State 47 Ind. Cas. 297 : 22 C.W.N. 823 and Lakshmi Narain Boy v. Secretary of State 44 Ind. Cas. 497 : 45 C. 866 : 28 C.L.J. 285 : 22 C.W.N. 824 The decision of the Subordinate Judge has been challenged before us on the ground that the oases mentioned have no application to the circumstances of the present litigation.
4. In the case of Udoy Narain v. Secretary of State 47 Ind. Cas. 297 : 22 C.W.N. 823 it was ruled that an annual sum levied by Government for the upkeep of embankment is not an abwab and that, consequently, when it is established that there has been a long continued payment from time immemorial, that itself constitutes a title in the recipient and is a good and sufficient basis of the claim. That was a suit instituted by the Secretary of State not as landlord but as representing the Government and claiming payment of that which was payable to the Government in respect of certain embankments, the upkeep of which was necessary for the preservation of lands including that to which the defendant was entitled. The claim consequently did not rest in any sense on the relation of landlord and tenant. There was, further, the evidence of long continued payment beyond the memory of man. In these circumstances, it was held, on the analogy of the decision of the Judicial Committee in Sumb-hoolall Girdhurlall v. Collector of Surat 8 M.I.A. 1 : 4 W.R. 55 : 1 Sar. P.C.J. 713 : 1 Sut. P.C.J. 387, that a legal origin for the demand must be assumed. In the case of LahMnaragan Boy v. Secretary of State 44 Ind. Cas. 497 : 45 C. 866 : 28 C.L.J. 285 : 22 C.W.N. 824 it was ruled that peshkush was a fixed annual sum levied by Government from lakirajdars and nishpish-dars of estates under direct management of Government, for the maintenance of village embankments and was not an imposition in the nature of an abwab. In that case also, there was evidence to show that proprietors had from time out of memory realised peshkush from lakhirajdars and nishpishdars, an in some instances from the tenants of the lakhirajdars and nishpishdars. The inference which the Court drew from the evidence was that the practice had existed for so long that it must be referred to some legal origin; in other words, that there was an indication that at some time there was an agreement between the proprietors of the two estates and those who held land therein that the former should maintain and repair the embankments in the estates with the aid of funds contributed by the latter.
5. It is plain that the circumstances of the case before us are entirely of a different description. The plaintiff's are the holders of a permanently settled estate under the Government. The demand which is now made upon them is in addition to the revenue payable by them in respect of their estate. Such an additional demand can be recoverable if there is a special liability either statutory or contractual. It is conceded that there is no statutory liability on the plaintiffs to make the payment of peshkush. Is there then a contractual liability? There is no evidence on the record to show when the liability was first imposed; a liability for the maintenance of a village embankment which protects the land from inundation. There is no indication as to the time when these embankments were erected. If the embankments were in existence at the time when the estate claimed by the plaintiffs was permanently settled with them, the inference would be legitimate that the sum payable in respect of the maintenance of the embankment was included in the revenue assessed. On the other hand, if the embankments were erected after the creation of the permanently settled estate, it is conceivable that there was an agreement between the Government on one hand and the proprietor on the other, for payment by the latter of a contribution towards the maintenance of the embankment. There is, further, no evidence to show how this sum was assessed and on what basis the figure was calculated; nor is there evidence to show that this sum has been realized by the Government from the proprietor from time out of memory. No doubt, Revenue papers have been produced which go back to the year 1838 and contain mention of the liability of holders of nankar lands to pay peshkush. That statement appears to have been reproduced in subsequent documents of the years 1843,1874,1875, and 1876. These do not, however, support the claim of the Government to levy peshkush. There is no evidence that the sum was actually realized; on the other hand, it is curious that the collection papers have all disappeared. It is difficult to believe that the collection papers have so completely disappeared that no evidence can be traced of realization of this sum at any time except once in 1904. An amount was then levied under the Public Demands Recovery Act; but the proprietors protested against the demand levied as an illegal exaction. We must further bear in mind that, even though peshkush may be leviable on nankar lands, it has still to be established that, when the nankar lands have been resumed and have been transformed into a permanently settled estate, there is still a liability on the proprietor to make the payment in addition to the revenue assessed. There is thus no escape from the conclusion that the Claim put forward on behalf of the Government has not been established. We have anxiously considered what direction should be given in these circumstances. We have arrived at the conclusion that the right course to follow would be to allow the appeal, set aside the decrees of the Courts below and to remand the case to the Court of first instance in order that the suit may be re-tried and opportunity afforded to the Government to establish that the claim put forward is well founded. There may be papers with the Revenue Authorities which may elucidate the history of this demand, when it originated, whether it has ever been enforced and on what basis it rests.
6. The result is that this appeal is allowed, the decree of the Court below set aside and the case remanded to the Court of first instance for re-trial. The appellants will be entitled to their costs both here and before the lower Appellate Court. The costs in the Court of first instance will abide the result of the retrial.