1. This appeal is preferred by the plaintiffs in a suit against the Secretary of State and relates to a charge described as peshkosh which the Collector has levied from the plaintiffs in execution of a certificate issued under the Public Demands Recovery Act (Bengal Act I of 1895). The plaintiffs sue for a declaration that the levy of peshkosh is illegal and they further pray for the cancellation of the certificate, for the refund of the amount levied thereunder and for a perpetual injunction restraining the Secretary of State from levying peshkosh in future.
2. It appears that there are two estates, known as Jalamutha and Majnamutha in the District of Midnapore, the history of which is adverted to in the judgments of the Courts below.
3. At the time of the Permanent Settlement the proprietors refused to accept the settlements offered to them and the estates have ever since been temporarily settled. Their situation renders them liable to inundation and grambheries or village embankments are maintained to protect the cultivable lands. It is asserted for the Secretary of State that peshkosh is a fixed annual sum payable by the nisphidars (holders of resumed lakheraj lands) and lakherajdars of these estates as a contribution towards the not inconsiderable expense which has to be incurred every year by the proprietors for the time being in repairing the embankments. As the estates are at the present time under direct management that expense is now met by the Government.
4. Both the Courts below have found as a fact that the practice of levying and paying peshkosh has existed from a very long time. The learned Munsif in the trial Court says that the proprietors from time out of memory have been realising peshkosh from lakherajdars and nisphidars and in some oases from the tenants of lakherajdars and nisphidars. The learned District Judge in the lower Appellate Court says similarly: There can be no doubt from the oral and documentary evidence adduced for the defendant that peshkosh, although its actual origin is unknown, was being realised by the proprietors of the two estates from lakherajdars (whether their title was valid or not) and from mal tenants from 1207 (1800 A. D.) and that it was taken as a contribution by the aid of which the proprietors were to repair the village embankments within the estate.' The inference which the District Judge has drawn from the evidence is that the practice has existed for so long that it must be referred to some legal origin, and he holds that there must at sometime have been an agreement between the proprietors of the two estates and those who hold land therein that the former should maintain and repair the grambheries in the estates with the aid of funds contributed by the latter. He refers to Mr. Bayley's report on the Settlement of Majnamutha in 1844 as authority for the statement that prior to that year, probably in 1827, in the case of mal tenants or tenants of rent paying lands, peshkosh was amalgamated with rent. In the case of the lakherajdars no such amalgamation could take place and when some of the lakheraj lands were afterwards resumed the nisphidars continued to pay under a separate head and apart from their rent the sum which they had previously paid on this account as lakherajdars.
5. The annual payment for which the plaintiffs have been found liable was fixed in 1844 or before at Rs. 13-1-8 gandas. The main contention of the learned Pleader for the plaintiffs is that peshkosh is an abwab and as such is prohibited by the tenancy law in this country. If that contention has any substance it is somewhat surprising that the fact was not discovered before this. The collection of abwabs has now been prohibited for a great number of years. So far as we are aware the objection taken on this ground has only once been taken before and then unsuccessfully in a case to which I shall shortly refer. We are satisfied that peshkosh cannot be regarded as an imposition in the nature of an abwab within the meaning of the various provisions which have been enacted from time to time on that subject. The plaintiffs' own kabuliyat of 1844 shows that the amount due on account of peshkosh was deducted from the assets of the land and that rent was assessed only on. the balance of the assets after this deduction had been made. That indicates that the payment comes out of the land and that the right to it is an interest in the land to which a title may be made by prescription.
6. The peculiar situation and character of the land and the antiquity and purpose of the payment all point to its having a legitimate contractual foundation. If the statutory law governing the relations of landlord and tenant must be applied, the modern analogue is to be found, not in Section 74 of the Bengal Tenancy Act relating to illegal cesses, but rather in the provisions of that Act relating to improvements [Chapter IX and Section 30 (c)].
7. We are supported in the view we take by an unreported decision of Sir Lawrence Jenkins, C.J., and Holmwood, J., (Second Appeal No. 44 of 1912 decided on 30th July 1915). Sir Lawrence Jenkins, referring to a claim for peshkosh in the Majnamutha estate, said that the basis of the claim was long-continued payment beyond the memory of man, which was in itself a title in favour of the recipient of the payment. He referred to Sambhoo Lal v. Collector of Surat 8 M.I.A. 1 at p. 40 : 4 W.R.P.C. 65 : 1 Suth. P.C.J. 387 : 1 Sar. P.C.J. 7l3 : 19 E.R. 431 where the payment in question might have had a vicious origin and added that there was no vice in the origin of peshkosh, the consideration for which on the contrary was most beneficent work.
8. It was suggested in the argument that in the case of the plaintiffs it has not been shown that they have regularly paid peshkosh. It is in evidence, however, that peshkosh was levied from them under the certificate procedure in the year 1904 and peshkosh is mentioned in their kabuliyat of 1844. We are satisfied that there are materials on the record upon which the Court below was entitled to come to the conclusion that peshkosh is payable in respect of the land held by the plaintiffs.
9. The learned Pleader for the appellant has not pressed the point taken in the Court below that the Public Demands Recovery Act was not applicable for the purpose of enforcing the payment. The terms of the Act of 1895 are sufficient to meet the point and it could not have been urged with success.
10. The appeal must accordingly be dismissed with costs.