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Raja Rishi Kesh (Rishi Case in Vakalatnamah) Law Vs. Sons and Heirs of Shamsher Kahn and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal736,92Ind.Cas.48
AppellantRaja Rishi Kesh (Rishi Case in Vakalatnamah) Law
RespondentSons and Heirs of Shamsher Kahn and ors.
Cases ReferredAshanulla Khan Bahadur v. Trilochan Bagchi
Excerpt:
bengal cess (amendment) act (iv of 1910), sections 52, 52a - notice that tenure has been included within zemindari, publication of, proof of--notice published before passing of amendiag act of 1910, whether can be proved by certificate granted subsequently--cess, liability to pay. - .....the defendants became liable to pay the cesses to the plaintiff. the defendants in the suit denied the publication of the notification, under section 52. it appears from the case of ashanulla khan bahadur v. trilochan bagchi 13 c. 197 : ind. (n.s.) 630 that the publication of such notice should be strictly proved before the liablity of the defendants can arise. to obviate the difficulty of proving such notification act iv of 1910 (b.c.) added section 52a to the cess act which runs as follows: 'whenever any notice has been duly published under section 52, the collector shall sign a certificate to that effect, and such certificate shall be conclusive proof that the publication has been duly made.' it appears that in compliance with this section the collector of midnapore signed.....
Judgment:

Chakravarti, J.

1. This is an appeal by the plaintiff and arises out of suit for recovery of cesses from the holders of a rent-free tenure. The plaintiff's case was that he was made liable for the payment of cesses for the rent-free tenure held by the defendants and had paid the same, that he now brought the suit for the recovery of the amount so paid, that the inclusion of this rent-free tenure within the zemindari of the plaintiff was duly published by the Collector under Section 52 of the Cess Act on the 29th of June, 1908, and that after the publication of the notification the defendants became liable to pay the cesses to the plaintiff. The defendants in the suit denied the publication of the notification, under Section 52. It appears from the case of Ashanulla Khan Bahadur v. Trilochan Bagchi 13 C. 197 : Ind. (N.S.) 630 that the publication of such notice should be strictly proved before the liablity of the defendants can arise. To obviate the difficulty of proving such Notification Act IV of 1910 (B.C.) added Section 52A to the Cess Act which runs as follows: 'Whenever any notice has been duly published under Section 52, the Collector shall sign a certificate to that effect, and such certificate shall be conclusive proof that the publication has been duly made.' It appears that in compliance with this Section the Collector of Midnapore signed a certificate on the 28th of November 1921. The plaintiff in order to prove the due publication of the notification under Section 52 produced the certificate so signed by the Collector and contended that this certificate should be accepted as the conclusive proof of the fact that the notification under Section 52 was published on the 29th of June 1908.

2. The Courts below have held that this certificate by the Collector is not sufficient in law for proving the publication of the notification under Section 52 because the publication was made before the amending Act came into operation. As there was no other independent evidence in proof of the fact of the publication the plaintiff's suit was dismissed by both the Courts below.

3. The learned Advocate for the appellant has contended that this was not the case of giving any retrospective effect to any enactment. Under Section 52A the Collector may sign a certificate at any time after the publication of the certification under Section 52 of the Cess Act. The certificate produced in the case proves that notice under Section 52 was published on the 29th of June 1908. The amending Act only provides the method of proving the publication made; it creates no new right nor does it affect any existing right. There is nothing in Section 52A which prevents the Collector from signing a certificate at any time after the publication has been made. When such a certificate is given according to Section 52A such a certificate will prove conclusively that the publication was made. This certificate proves conclusively the publication on the 29th of June 1908. The liability of the defendants is established when such a publication is proved and the certificate proves that publication.

4. I think, therefore, the contention of the appellant must prevail and it should be held that the plaintiff has conclusively proved by the production of the certificate that the notification under Section 52 was published on the 29th of June, 1908.

5. The judgments of the Courts below are set aside and the case is sent back to the Court of first instance for the trial of the suit on the merits. The plaintiff will get the costs of this appeal. Costs of the lower Courts will abide the result.


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