NASIM ALI, J. - (1.) THESE two appeals arise out of a suit for recovery of road cess, mine cess and income tax charged on the royalty payable for a certain colliery under the terms of a registered indenture of lease. The trial Judge decreed the suit. On appeal by the Defendants to the lower Appellate Court the learned District Judge has affirmed the decree of the trial Judge for road cess and mine cess but has dismissed the Plaintiff's claim for income tax. Hence these two second appeals one (S.A. No. 856) by the defendants, and the other (S.A. No. 1003) by the Plaintiffs.
(2.) THE point for determination in the two appeals is whether under the terms of the lease the Plaintiffs are entitled to recover (a) Road cess, (b) Mine cess, (c) Income tax, paid by them on the royalties reserved in the lease. The relevant clauses in the lease are these : "(a) . . . . . . . . . . The lessee shall pay the royalties reserved in the lease at the time and manner appointed in that behalf and shall also pay and discharge all taxes, rates, assessments and imposition whatever, being in the nature of public demand which shall from time to time be charged, assessed or imposed upon the said mines or any part thereof by the authority of Government of India or the said local Government except demand of land revenue . . . . . .". It is contended on behalf of the lessee that the object of the covenant to pay taxes, rates, assessments and impositions was not to throw upon the lessee the burden of the assessments payable by the lessor under the statutes, but only to state the liability of the lessee to pay his share of the assessment under the statute laws. The words "all taxes, etc.," indicate that the lessee was made liable by the covenant for the whole of the impositions upon the demised mines payable by the lessor and the lessee and not simply for the portion payable by the lessee only. If the object of the covenant was to make the tenant liable for his share of the assessments only, there was no necessity for inserting it in the lease-because the liability was already fixed by the statutes. The covenant was not intended to be a mere surplusage but was framed with the object of throwing on the tenant the burden of obligations which, in the absence of such a covenant, might have fallen on the landlord.
(3.) THE question is whether the burden of the obligations in the present case namely, road cess, mine cess and income tax which was on the plaintiffs has been thrown on the defendant by the operation of the covenants in the lease.;