B.K. Mukherjea, J.
1. This is an appeal on behalf of the plaintiff, and the suit was one for recovery of a sum of money paid by the plaintiff as cesses in respect of a colliery, described in Schedule A to the plaint, and which according to the plaintiff are payable by the defendant. The facts lie within a narrow compass and are for the most part undisputed. The predecessors of the defendant took a coal mining lease of the property described in the plaint from the plaintiff company on 25th September 1903 and on that day a potta was executed by the latter which was registered in due course. The potta provides for payment of a minimum royalty of Rupees 12,000 by monthly instalments of Rs. 1000 and also commissions at certain rates on all coals raised and despatched. The plaintiff's case is that under the terms of the said potta, the lessee is further liable to pay all road cess and Public Works cess payable in respect of the colliery. It is said that the plaintiff was assessed by Government with sums of Rs. 600-1-0, Rs. 563.14-0, Bupees 578-2.0 and Rs. 540-4-0 as road cess and Public Works cess in respect of the said colliery for the years 1931-35 and they had to pay these amounts, though the liability to pay all cesses rested on the defendant lessee under the terms of the lease. The plaintiff therefore seeks to recover these sums with interest from the defendant.
2. The defence in substance was that the ceases paid by the plaintiff were assessed on the landlord's share of the profits and were justly payable by them and the defendant also had been paying the cesses due in respect of his share of the profits. It is said that all along ceases have been levied on the landlord's profits separately and the defendant cannot be compelled to pay anything in excess of -what is due on the lessee's share of the profits. The trial Judge on a consideration of the potta came to the conclusion that the entire cesses and not so much of them as are proportionate to the profits made by the defendant were payable by the latter, and in that view of the case it decreed the suit. On appeal by the defendant the District Judge of Burdwan reversed the decision of the trial Court. According to the District Judge, Clause (13) of the potta made the lessee liable for the lessee's share of the cesses only and did not amount to a stipulation to reimburse the lessor for cesses imposed by Government on the lessor's property or profits. It is against this decision that the present second appeal has been preferred. The only point in controversy in this appeal is as to whether the interpretation put upon the potta by the District Judge is correct. Clause 13 of the potta on the construction of which the decision in the appeal hinges reads as follows:
That the lessees shall pay all road cess, Public Works cess and all other Government cesses and taxes payable in respect of the said underground rights or on the profits of the lessees arising therefrom.
3. The District Judge laid stress on the last portion of the clause and his view was that the lessees were liable to pay only what they were bound to pay under law, viz. the cesses levied on their own profits out of the mine. Now, it is not disputed before us by the Advocate-General who appears for the defendant respondent that road cess and Public Works cess are not levied on the lessee's share of the profits. Under Section 6, cess Act, they are assessed on the net annual profit from mines, quarries, etc. and as was held by the Judicial Committee in Manindra Chandra nandi v. Secretary of State (1911) 38 Cal. 372 the expression 'net annual profit' has reference to the property and not to the individual and the royalty that is received by the lessor from the occupier of the mines, is as much a part of the annual profits as the earnings of the occupier himself.
4. It is true that in this case the Collector has issued separate notices under Section 72, cess Act, upon the lessors as well as the lessee, and he has assessed the lessors on the average royalties received by them and the lessee on the net profits left in his hands after payment of royalties to the landlord. This procedure seemed to have been followed also in Manindra Chandra Nandi v. Secretary of State (1911) 38 Cal. 372 which went up to the Judicial Committee, and the propriety of it is certainly doubtful vide the observations of Mukherji J. in Manindra Chandra Nandi v. Secretary of State (1907) 34 Cal. 257. It may be said however that if the Collector has received just what he is en-titled to receive under law, it is immaterial as to whether it is realized from both parties or one. Under Section 81 the burden of cess is equally distributed between the owner and the occupier, and if either party has been compelled to pay more than his dues he can certainly recover it from the other by a contribution suit. This much is clear therefore that there is no provision in the Cess Act, under which the lessee has got to pay cesses in proportion to the profits which he derives from the colliery and the learned Advocate-General therefore rightly concedes that the words 'on the profits of the lessees arising therefrom' occurring at the end of the paragraph are altogether irrelevant for our present purposes. They are in no way connected with the road cess and Public Works cess though they might be connected with other taxes-which Government might impose in future. The Advocate-General however lays stress on the words 'payable in respect of the said underground right' which come after cesses and taxes. His contention is that these words connote the leasehold interest which is created by the potta and the clause according to him would mean that the defendant was bound to pay what was payable by him as a lessee under law.
5. Two things may be pointed out in answer to this contention. In the first place the expression in the clause is 'payable in respect of the said underground rights' and not payable by the lessees under law' and it is not disputed that cesses are levied on the mice as a whole and not upon any particular interest in it. In the second place if the clause means no more than this, that the lessee would pay what is payable by him in law, it would be altogether superfluous. It seems to me therefore that under the clause as it stands the lessee takes upon himself the liability to pay all road cess and Public Works cess that are imposed upon the colliery. The word 'all' in the beginning of the paragraph makes it clear that the whole of the impositions would be borne by the lessees, and the words 'payable in respect of the said underground right' only indicate that the taxes are in respect of the demised mines. The case in Bengal Coal Co. v. Janardan kishore Lal is very similar to the present case, and the observation made by Sir George Rankin in that case would, in my opinion, very well apply to the present facts. The result is that in my opinion this appeal should be allowed. The judgment and decree of the lower Appellate Court are set aside and those of the trial Court restored. The plaintiff will have his costs throughout.
Latifur Rahman, J.
6. I agree.