1. This appeal arises out of a suit for recovery of cess. The plaintiff is a proprietor of a revenue paying estate, while the defendants are interested in certain rent-free lands lying within the ambit of that estate. These rent-free lands are said to constitute holding No. 5/1531 in towji no. 3989-A of the Howrah Collectorate. It appears that besides the two defendants there are certain other persons also interested in this holding. The procedure for assessment 'of rent-free lands to cess is laid down in Ch. 4, Bengal Cess Act, 1880 (Bengal Act 9 of 1880). Section 50, with which this chapter opens, lays down that all such lands shall be deemed to form a part of the estate or tenure within the local boundaries of which they are contained. Section 51 requires that the holder of the estate or tenure, when he submits a return under Section 14 of the Act, shall be bound to enter in such return all such rent-free lands. The form of the return is given in Schedule A of the Act, and will be found to contain a separate part, in Part 4, for the inclusion of such lands. The valuation roll which is prepared by the Collector under Section 34 of the Act will necessarily include the rent-free lands incorporated under Section 51. Under the rules framed by the Local Government, it appears that rent-free lands so included are shown in the valuation roll just after the entry of the estate within which they are included, and it further appears that in this roll the net value of all rent-free lands of which cess is payable by the proprietor of the estate to the Collector is to be shown in a lump sum: see Rule 95, Clauses (i), (iv) and (viii).
2. After the valuation roll of any estate or tenure has been published including therein all such rent-free lands, the Collector is required to publish a notice in a form which is prescribed in Schedule D of the Act, annexing thereto such extracts from the valuation roll as relate to such lands. This notice is directed to the owners and holders of such lands, and calls upon them to prefer any objections which they may desire to prefer to the Collector regarding the amount at which their lands had been valued. The form of the notice is printed in Schedule D, and it provides as follows:
If no such objection is made, the owners and holders of lands will be bound to pay year by year to the holder of the estate or tenure in which his land has been entered, the amount of road cess and public works cess calculated on the annual value of such land as entered in these extracts at the full rate which may be fixed for the year in the district.
3. I may pause here for a second to wonder to whom the compliment is to be paid for the use of the singular pronoun 'his' for denoting persons in the plural number. I take it, with due deference to the draftsman, that the word 'his' which I have underlined (here italicized) means 'their', and 'his lands' refer to the lands held by the 'owners and holders' of lands mentioned before. This liability of the owner or holder of rent-free lands to pay cess to the holder of the estate or tenure on the basis of the annual valuation is really created by Section 56 of the Act. In addition to the notice under Section 52, another notice is required to be published by the holder of the estate or tenure under Section 51. This notice is for the information of all concerned, of the rate which has been fixed for the levy of the cesses, and requires every owner and holder of rent-free lands to pay the amount of the cesses specified in such notice as it falls due. The particulars which the notice is to contain are all set out in detail in the section. It is clear on the wording of Section 56, and is now firmly established on the authorities, that the liability of any owner or holder of rent free lands to pay any cess to the owner of any estate or tenure under this chapter cannot arise unless there has been a due publication of both the notices under Section 52 and Section 54. The issue of such notices is indeed a condition precedent to the accrual of such liability.
4. The question next arises as to the manner of enforcing this liability. The provisions of 8s. 47 to 64-A are pertinent in this respect. Section 47 says that every holder of an estate or tenure to whom any sum is payable under the provisions of this Act may recover the same in the same manner and under the same penalties as if the same were arrears of rent due to him. Section 64-A is in these terms:
All sums due to the holder of any estate or tenure under the provisions of this chapter (Oh. 4), in respect of any land held rent-free may be recovered by such holder from any owner or holder of such rent-free land, or from any occupier of the same, by any means and any process by which the amount might be recovered if it were due on account of rent of a transferable tenure or holding, and subject to the same rules as to limitation.
5. It seems to me to be clear that this Section 64-A creates joint and several liability in all persons who may be jointly interested in any rent-free land in respect of the cesses payable for it. Such being the provisions of the Act, so far as it is necessary to consider the same in the present case, let us now turn to facts of the case. As I have already said, the plaintiff seeks in this suit to recover the amount of cesses which was assessed in respect of certain rent-free lands constituting the holding no. 5/1531. The assessment was made upon a total valuation of Rs. 513-8-0 and the amount of cesses calculated thereon was Rs. 32-1.6 per year. The claim was in respect of four years, 1335 to 1338 B. S. The suit was contested only by defendant 1, Kamal Krishna Kundu Chowdhury, and his main defence was first, that the notices under Sections 52 and 54 had not been served; secondly, that be was not liable except in respect of the lands in the niskar tenure of which he was actually in possession either in khas or through tenants; and thirdly, that in any case he could not be made liable in respect of the entire lands of the niskar tenure in the absence of the other co-sharers interested therein. The learned Munsif passed a decree in full in favour of the plaintiff against both defendants, and this was affirmed by the learned Subordinate Judge on appeal which was by defendant 1 alone. As regards the service of notice, the concurrent findings of both the Courts below are against defendant 1, appellant. Mr. Bagchi with all his ingenuity was unable to repel this finding in so far as the notice under Section 52 was concerned, and concentrated his attack on the notice under Section 54. His point was that the copy of the notice had not been put in, and that in the absence of such copy, it was not permissible to give oral evidence of the contents of the notice. He further maintained that there was no evidence of service of such notice in the manner indicated by Section 55. I am afraid I cannot accept his arguments. There is the finding of service of notice under Section 54 of the Cess Act, and the Court is entitled to presume, unless the contrary is shown, that this referred to service of a notice framed in accordance with law. If a copy of the notice were available, it might have been a great help on the merits of the case, but mere non-production of it cannot be regarded as in any way militating against the presumption of correctness of form or as vitiating the dear finding of the Courts below.
6. Turning now to the second point, which is really the point of substance in this appeal, the question arises as to whether or not defendant 1 could be made liable in respect of all the lands of the niskar, though it was not shown that he was in possession of all but a portion merely because the lands constituted one single holding. At one stage of the argument I was inclined to take the view that the unit of assessment under Oh. 4 of the Act was a holding, so that if there was one single holding, Section 64. A could create joint and several liability on the part of all who owned or held that holding irrespective of the actual quantities of land in their possession, but on further consideration it became clear that such a view could not be maintained. As a matter of fact, putting aside the case of estates and tenures, it is apparent that the test of liability for cess is actual possession of land. Even a cultivating raiyat is made liable under this Act in respect of the land actually held by him : see Sections 24 and 41(3) In Ch. 4 reference is made to 'rent-free lands' and not to 'holding', which shows that the assessment is to be made in respect of the lands, whether they constitute together a distinct holding, or are parts of one holding. Much light is also thrown on this point by the fact that the Act makes the 'annual value' the basis of assessment and it will be seen that this expression 'annual value' is used in the Act in respect of 'land, estate or tenure' and not with reference to any holding, estate or tenure. An estate or tenure is easily understood to he an independent unit of assessment under the Act; and if the only other unit was intended to be a holding, the Legislature would undoubtedly have used the word 'holding' instead of 'land' in juxtaposition with 'estate or tenure' in Section 4.
7. Looking at the scheme of the Act as a whole, it seems to me that the Act not only permits but requires the inclusion of rent-free lands in a revenue paying estate under Section 51, to be carried to the further point possible, so as to involve the splitting up of a holding in respect of which separate ownership exists, into as many parts as there are separate owners, provided of course, and to my mind this is an indispensable condition, that the separate owners or groups of owners are in separate possession of the respective parts into which the holding is split up. If I am right in this view, it follows that defendant 1 could be made liable for the cess assessed in respect of the entire land in the niskar only if it could be shown that there was unity of possession in respect thereof between him and the cosharers, or in other words, if it could be shown that defendant 1 and the other cosharers were together in joint possession of all the lands comprised in the niskar. That however is not the case here. The niskar lands concerned in the present suit undoubtedly constitute one single holding as recorded in the valuation rolls produced by either party (Ex. 3 or Ex A), but not only does it not appear that these lands were held jointly by a number of cosharers including defendant 1 as one of them, but these papers show that defendant 1 and the other cosharers were each in separate possession of specified quantity of land within the niskar either in khas or through tenants. It may be, as was the case here, that the valuation statement which was prepared, and on the basis of which the valuation roll under Section 34 was published, showed the value of all the different parcels of land in this niskar in the possession of the respective cosharers in a lump sum, but that does not take away the fact that different quantities of land were separately held by the different cosharers. In my opinion the position consequently is that each such cosharer will be liable in respect of the land held or owned by him, and the principle of joint and several liability embodied in Section 64-A cannot be extended to make a cosharer in possession of a separate piece of land liable for the lands separately held by another cosharer.
8. Now, as I have pointed out before, the plaintiff has sought to recover arrears of cesses from the defendants on the basis of an annual valuation of Rs. 5138.0, this representing the total annual valuation of all the lands in the niskar holding. From the extracts of the valuation roll which are on record, it appears however that this annual value is distributed amongst a number of cosharers as follows:
Khas Annual Tenanted Annual Total Total land value land value land amount valueB.K. Ch. Rs. A. P. B. K. Ch. Rs. A. P. B. K. Ch. Rs. A. P.Defendant 1 20 1 1 143 10 0 85 10 0 66 0 0 55 11 0 209 10 0' 2 6 0 0 57 8 0 Nil Nil 6 0 0 57 8 0
9. In addition to these defendants, there were other cosharers in respect of whom apparently no return had been filed; therefore the areas in their possession were treated as deficit areas and assessed by the authorities on their own information, and in the best manner they thought fit under Section 21 of the Act. The total of such deficit areas was 47 bighas and 17 cottas, and the total valuation thereof was Rs. 246.6-0. It will be seen that the aggregate of the annual values of the lands held by the two defendants and of the deficit areas gives a total of Rs. 513-8 0, on which the plaintiff has based his claim. On the view which I have taken of the relevant sections of the Cess Act, I do not think however that the plaintiff's claim is sustainable against defendant 1, except only to the extent of an annual value of Rs. 209-10.0, being the annual value of the lands actually held by him. In this view of the matter, the third question raised by the appellant does not arise. As against defendant 1, therefore, there will be a decree for arrears of cesses for the years in claim calculated on an annual value of Rs. 209-10-0 only instead of on an annual value of Rs. 513-8-0. The decree against defendant 2 will stand on the basis of the full amount of Rs. 513-8-0, no appeal having been preferred by him either in this Court or in the Court of Appeal below. The result is that this appeal is allowed in part. The decree of the lower Appellate Court in so far as it affirmed the decree of the Court of first instance making defendant 1 jointly and severally liable for the entire amount claimed is set aside and in lieu thereof the plaintiff will get a decree against defendant 1 as aforesaid, and against defendant 2 on the basis of an annual value of Rupees 513-8-0 as allowed by the Courts below. The plaintiff is entitled to two-fifths of the costs in the trial Court from defendant 1. The appellant in this Court will get three-fifths of the costs in this Court as well as in the Court of Appeal below.