1. The plaintiff in the suits in which these appeals have arisen prayed for cancellation of certificates issued under the Public Demands Recovery Act, and for the recovery of the amounts realised from him by the Government. On the pleadings of the parties the question for consideration in the cases before the Court was, whether the plaintiff was liable for the costs of the settlement operations, and was the defendant, the Secretary of State for India in Council, legally entitled to recover the said costs from the plaintiff The costs of settlement operations in a mahal were apportioned between the zemindar and the putnidars under Section 114, Bengal Tenancy Act, on assessment of the same after the termination of settlement proceedings. The zemindari was purchased by the plaintiff at a sale for arrears of revenue, after certificates under the Public Demands Recovery Act had been issued for recovery of the expenses incurred in carrying out the settlement operations, so far as the share of these expenses payable by some of the putnidars was concerned. The plaintiff after his purchase at the sale for arrears of revenue, annulled the putnis in respect of which certificates had been issued; and the certificates were transferred to the name of the plaintiff. The objection raised by the plaintiff to the recovery of the amounts covered by the certificates issued against the putnidars, having been disallowed, the amounts covered by the certificates originally issued against the putnidars were realised from the plaintiff. The suits giving rise to these appeals were for the cancellation of the certificaters transferred to the name of the plaintiff, and for the refund of the money paid by him.
2. The Court of first instance dismissed the suit instituted by the plaintiff, basing its decision on Section 114, Bengal Tenancy Act, and Section 114 of the Bengal Survey and settlement Manual, 1917. The decision of the trial Court was reversed on appeal by the learned District Judge, Murshidabad, and decrees granting reliefs prayed for in the suits were passed in favour of the plaintiff. In accordance with the provisions contained in Section 114, Bengal Tenancy Act, expenses incurred in carrying out settlement operations under Chap. X of the Act, in any Estate or tenure are to be defeayrd by the landlords, tenants and occupants of land in that Estate or tenure, in such proportion as the Government, having regard to all the circumstances, may determine. Asserssment of costs is not upon land but upon the landlord, tenants and occupants. The assessment is, however, in respect of the land: Bejoy Singh v. Hem Chander 33 C.L.J. 349 : 62 Ind. Cas. 925 : A.I.R. 1921 Cal. 520. The method of recovery, so far as we are concerned with that, in the cases before us, is provided by Section 414 of the Bengal Survey and Settlement Manual, 1917, and the rule provides for this: If before the amounts are collected, a landlord or tenant dies or transfers or abandons his estate or tenancy or any part thereof, recovery may be made from the person in possession of the former holder's interest. On the provision contained in the Bengal Tenancy Act in which occupants of the land have been specially mentioned, and in accordance with the rule providing for collection in the case of death, transfer, or abandonment of an Estate or a tenancy from the person in possession of the former holder's interest, the conclusion is resistible, that the plaintiff in the case before us, having obtained possession of the lands appertaining to putnis which were annulled, by his purchase at a sale for arrears of revenue was the person from whom the costs of the settlement operations were recoverable.
3. The putnis were annulled after certificates under the Public Demands Recovery Act had been issued against the putnidars and the amounts covered by the certificates were recoverable from the plaintiff who obtained possession of the lands which at the date of the certificates appertained to the putnis, in respect of which there was assessment of costs incurred in settlement operations. The costs were recoverable from the person in possession, the plaintiff, in respect of the lands in respect of which costs were payable. The learned District Judge in the Court of Appeal below is eight in observing that the plaintiff was not in possession of the tenure interest; but in our judgment there can be no question that he was in possession of the lands in respect of which costs incurred in settlement operations were payable. The rule providing for realization of such costs, speaks of transfer or abandonment of the Estate by tenant and the plaintiff in the suits out of which these appeals have arisen could not be in a better position than a landlord in possession of lands appertaining to a tenancy abandoned by a tenant. In the above view of the question arising for consideration in these appeals, the decision arrived at by the Judge in the Court of Appeal below cannot be affirmed. In our judgment, the conclusions arrived at by the learned Subordinate Judge in the trial Court, giving effect to the contention of the defendant in the suit that the plaintiff being in possession of the lands of the putnis in respect of which settlement costs were assessed was liable for the same.
4. It was urged in support of the decision of the Court of Appeal below that Section 31, Revenue Sale Law, laying down rules for the application of the purchase money, at a sale for arras of revenue, supported the case for the plaintiff. We are unable to appreciate the position thus taken up, seeing that the duers in respect of lands appertaining to a putni tenure within the ambit of a revenue-paying Estate, could not be taken into account in connection with application of purchase money realised at a sale of the Estate for arrears of revenue. The liability for costs incurred in settlement operations in respect of lands appertaining to a putni could not be included within the arrears and outstanding demands mentioned in Section 31 of the Revenue Sale Law to the liquidation of which any part of the purchase money at the sale of an Estate for areas of Revenue was to be applied. The passages contained in the judgment of their Lordships of the Judicial Committee of the Privy Council, in Surja Kanta v. Sarat Chander Roy Choudhuey 18 C.W.N. 1281 : 25 Ind. Cas. 309 : A.I.R. 19147 P.C. 82 : 16 M.L.T. 290 : 27 C.L.J. 365 : 1 L.W. 807 : (1914) M.W.N. 757 : 16 Bom. L.R. 925 : 20 C.L.J. 563 (P.C.) to the following effect, were relied upon by the learned Advocate for the plaintiff respondent, in support of the position that no liability attached to the purchase at a sale for arrears of revenue, so far as costs for settlement operations payable by a putnidar was concerned. On the failure of an owner to pay the Government assessment his Estate or interest in the land is forfeited, or rather determined, and under such a sale as that what is sold was not the interests of the defaulting owner, but, the interest of the Crown.
5. The position indicated above is beyond the pale of controversy and cannot be disputed. We are, however, unable to see what bearing that has on the questions arising in the appeals before us. The plaintiff, as the purchase at a sale for arrears of revenue, was in possession of lands appertaining to certain putnis which stood annulled by the sale; there was, under the law liability in the matter of costs for settlement operations in respect of those lands, and the person in possession was required to discharge that liability. As has been indicated already, the determination of the question arising for consideration does not depend upon any provision of the law other than those contained in Section 114, Bengal Tenancy Act, and Section 414 of the Bengal Survey and Settlement Rules, to which a detailed reference has been made in the previous part of the judgment. The possession of the plaintiff was by virtue of a sale for arrears of revenue, was not for the purpose of the case before us, the possession of the interest of the defaulting proprietor but that of the lands appertaining to a tenure in respect of which there was a liability to be discharged by the person in possession by operation of a special provision of the law made in that behalf. The result of the conclusion we have arrived at, as mentioned above, is that the appeals are allowed. The decision of the Court of Appeal below and the decriers passed by it in favour of the plaintiff in the suits in which these appeals have arisen, are set aside, and the decision and decrees of the Court of first instance dismissing the suits are restored. The defendant appellant is entitled to get his costs from the plaintiff respondent in all the Courts.