AI Structured Summary
Not yet generated for this judgment
Judgment
Macpherson, J.—On 7th June 1929 a remand to the trial Court was ordered to determine the question whether the defendant is in respect of the tenancy in suit a person cultivating land within the meaning of the definition of cultivating raiyat in S. 4, Cess Act of 1880.
The finding is that of the tenancy of 24.12 acres; the defendants are in cultivating possession of 14-42 acres while the remaining 9-70 acres are in possession of their tenants. It appears that the entry in the Record-of-Rights was malguzar or thikadar and the khas cultivation was shown as bakasht thikadar, whilst the tenants of 9.70 acres, three in number are recorded as settled raiyats. The learned Munsiff considers that as the respondents are in possession of the major portion of the lands of the disputed tenancy they came within the definition of "cultivating raiyats" and being persons cultivating land and paying rent there for not exceeding Rs, 100 per annum. Now the decision in Abdul Hasan and Others Vs. Asghar Ali and Others, where Adami, J., said :
The defendants in this case pay a rent under Rs. 100 and, if they cultivate the land themselves, they will be liable only to pay cess at the rate of half an anna per rupee,
and then directed a remand to determine whether the defendants "actually cultivated the lands themselves," would support the view that to come under the definition of cultivating raiyat in the cess Act, there must be actual personal cultivation that is, by the tenant himself or through his family or hired servants or at most in part by persons who would be mere under raiyats. To my mind it cannot be said in the circumstances of the present case, that the defendants cultivate the lands themselves. It is not sufficient that the tenancy should be a mixture of personal cultivation, as above suggested, and of rent collecting. Accordingly I hold that the tenancy under discussion is not that of a cultivating raiyat and therefore the road cess payable to the landlord is not half an anna but one anna in the rupee.
I therefore decree the appeal and restore the decision of the Munsiff in respect of cess and damages at 12 1/2 per cent with costs in this Court and the lower appellate Court. The plaintiffs as already held is, not entitled to the kist of Jait 1315.
The respondents are permitted to appeal if so advised.