- (1.) In execution of a certificate for arrears of rent and cesses, a sum of Rs. 3,111-7-0 was realised from Rai Dhirendra Nath Choudhuri, predecessor of some of the Appellants, and Rai Harendra Nath Choudhuri, in Certificate Case No. 12-P.W. of 1941-42 of the Alipore Collectorate. This suit was first instituted by Rai Dhirendra Nath Choudhuri alone with Rai Harendra Nath Choudhuri impleaded as a pro forma Defendant. Later Rai Harendra Nath Choudhuri was transposed to the category of the Plaintiff, and Rai Dhirendra Nath Choudhuri having died his son and widow were substituted in his place. The case of the Plaintiffs is that nothing was payable at all for the rents and cesses alleged to be in arrears-nothing was payable as rent as the tenure with a rent of Rs. 51-9-3 in respect of which rent was claimed had no existence at all and nothing was payable as cess as the Chingrighata Hat for which cess was said to be in arrears was not in the Defendant's estate, but was within the estate of which Sen Babus were the proprietors. The Plaintiffs asked for a declaration that the tenure did not exist and that no cess of Rs. 357-13-3 was payable by the Plaintiffs to the Defendant and for refund of the amount of Rs. 3.111-7-0 realised in the certificate proceedings.
(2.) We, are no longer concerned with the case that there was no tenure for which the rent claimed to be in arrears was said to be payable as the decision of the Court below rejecting this part of the Plaintiffs' case is not challenged before us at the time of hearing of the appeal. The Court below also rejected the Plaintiffs' case that they were not liable to pay to the Defendant, the cess of Rs. 357-13-3. As regards this part of the Plaintiffs' case, the trial court held that the valuation-roll as prepared by the Collector remained in force and that the liability to pay cess on the basis of the valuation-roll remains until the roll has been decided to be ultra vires by a competent court. On appeal the learned District Judge also held the valuation-roll to be binding on the Plaintiffs. He further pointed out that the Plaintiffs had not availed themselves of the provisions in the Cess Act itself against the incorrect entry. He thought further that the Plaintiffs had no reasonable grievance as all that had taken place was that instead of paying to the Sen Babus, which he would have to if the Collector had not made the mistake, he paid the equivalent sum to the Respondents.
(3.) As regards this last point which impressed the learned District Judge, I am clearly of opinion that the Court cannot refuse to give the Plaintiffs relief merely because they had not to pay anything more than what they would have to pay, if the Collector had prepared the valuation-roll correctly. If there was no liability to pay to the Respondents, the Plaintiffs are entitled to have that declaration and such other relief that follows from that legal position.;