Badri Narain Sahu and Another vs Beni Madho Prasad and Another

Chatterji, J.—This is an appeal by some of the defendants first party in a suit to set aside a revenue sale. The property in question is Tauzi No. 3308/16, that is to say, separate Account No. 16 of Tauzi No. 8308, of the Saran Collectorate. This separate account belonged, as to eight annas share, to the plaintiffs, and as to the remaining eight annas, to defendant 2, called the defendant second party. The defendant second party having defaulted in payment of his share of the revenue, the separate account was sold under Act 11 of 1859 on 2lst March 1938, and it was purchased by original defendant 1, since deceased, for Rs. 2225. There was an appeal by the plaintiffs to the Divisional Commissioner which was dismissed. Thereupon, the sale was confirmed and the sale certificate was granted to the auction-purchaser on 23rd November 1938. The present suit was brought on 22nd August 1939 under the provisions of Section 33 of Act 11 of 1859. The sale was impeached substantially on the ground that the notices under Sections 5, 6 and 7 of Act 11 of 1859 were not proclaimed or served in the manner required by law, and that in consequence of the material irregularities in publishing and conducting the sale, the property yielding an annual gross income of more than Rs. 3000 was sold for Rs. 2225 only.

After the institution of the suit original defendant l died and he was substituted by four persons who were made defendants 1, l(a), 1(b) and 1(c), called defendants first party. The suit was contested by defendants 1(b) and l(c) on the ground that the notices required by Act 11 of 1859 were duly served and the disputed property which was heavily encumbered was sold for an adequate price, and that, therefore, the plaintiffs did not sustain substantial injury. The learned Subordinate Judge who tried the suit held that the notices u/s 5 that were required to be served at the kutchery of the proprietor of the estate or at some conspicuous place upon the estate and also at the police station were not served. He also held that the service of notice u/s 7 was not properly proved. Thus he held that the sale was held contrary to the provisions of the Act. He further held that the property was sold for an inadequate price. He accordingly decreed the suit. Hence this appeal by defendants l(b) and 1(c).

The first point raised by Mr. S. N. Dutta for the appellants is that the sale being impeached only on the ground of non-service of notices under Sections 5, 6 and 7 of Act 11 of 1859, the suit is barred under the provisions of Section 8 of Act 7 of 1868(B.c). This point was not taken in the Court below, but as it is a pure question of law, it can be raised in appeal. Section 8 of Act 7 of 1868 runs as follows:

Every certificate of title which may be given to any purchaser under the provisions of Section 28 of the said Act 11 of 1859, or of Section 11 of this Act shall be conclusive evidence, in favour of such purchaser and of every person claiming under him, that all notices in or by this Act, or by the said Act 11 of 1859, required to be served or posted have been duly served and posted:

And the title of any person who may have obtained any such certificate shall not be impeached or affected by reason of any omission, informality, or irregularity as regards the serving or posting of any notice in the proceedings under which the sale was had at which such person may have pur chased.

It is clear from this section that after the sale certificate has been granted, the title of the auction-purchaser cannot be impeached on the ground of non-service of the notices pres cribed by Act 11 of 1859; and the Courtis precluded from entering into the question whether the notices were duly served or not. In the present case the sale certificate had al ready been granted before the institution of the suit. The sale is impeached on the ground of non-service of the notices under Sections 5, 6 and 7 of Act 11 of 1859. The suit is, therefore, clearly barred u/s 8 of Act 7 of 1868 (B. c). This view is supported by the decision of the Calcutta High Court in Bhawani Koer v. Afzal Hussain (07) 34 Cal. 381 and also the unreported decision of this Court in, Sakaldip Singh v. Sheonarain Sahu Second Appeal No. 892 of 1941, decided by Harries C. J. and Manohar Lall J. on 30th September 1942.

It has been argued by Mr. B. C. De on behalf of the respondents that Section 8 of Act 7 of 1868 (B.C.) must be read subject to Section 33 of Act il of 1859 which provides for suits to set aside revenue sales on the ground of their "having been made contrary to the provisions of this Act." It is said that where a sale is held without due service of the notices under Sections 5, 6 and 7 of Act 11 of 1859, it is undoubtedly a sale held contrary to the provisions of the Act, and if a suit to set aside such sale is held to be barred u/s 8 of Act 7 of 1868, the provisions of s.33 of Act 11 of 1859 will be defeated. But both these sections must be given their full effect. The combined effect of these two sections is that after the sale certificate has been granted, the sale is liable to be impeached by suit, if it has been held contrary to the provisions of Act 11 of 1859, provided that the irregularity complained of is not of the kind mentioned in Section 8 of ACt 7 of 1868. It seems that the Legislature in enacting the latter section intended to secure the title of purchasers at revenue sale, who had already obtained the sale certificate, against attack on the ground that the requisite notices had not been duly served. In support of his argument reliance has been placed by Mr. B. C. De on the Full Bench decision of the Calcutta High Court in Lala Mobaruck Lal v. Secretary of State (85) 11 Cal. 200 in which it was held by the majority that

A non-compliance with the provisions of Section 6 of Act 11 of 1859 is not a mere irregularity, and is not one of those errors in procedure which are intended to be cured by Section 8, Bengal Act, 7 of 1868.

In that case the substantial ground on which the sale was impeached was that the provision of Section 6 that the day fixed for the sale shall not be less than 30 clear days from the date of affixing the notification in the office was not complied with. This was certainly not one of those errors in procedure which are intended to be cured by Section 8 of Act 7 of 1868. The decision itself suggests that if there had been a mere irregularity of the nature indicated in S.8, it could be cured by reason of its provisions. It may be observed that so far as the decision lays down that where there has been non-compliance with the provisions of Section 6 of Act 11 of 1859, the sale is null and void, as not being a sale under the provisions of Act 11 of 1859, it is opposed to the Privy Council decision in Rajah Gobind LalRoy Ramjanam Misser (94) 21 Cal. 70.

It has been also argued that Section 8 of Act 7 of 1868 refers to service of "notices" and does not therefore apply to "notification" required by Section 5 or Section 6 of Act 11 of 1859, because the latter Act makes a distinction between "notification" which is not addressed to any individual, as in those sections, and "notice" which is addressed to an individual, as in Section 7 of the Act. The distinction thus sought to be drawn between the words "notification" and "notice" is wholly unfounded. A notification which is intended for the public is none the less a notice. In Section I3 of the Act 11 of 1859 we find the word "notice" in the following passage:

In all such cases notice of the intention of excluding the share or shares from which no arrear is due shall be given in the advertisement of sale prescribed in Section 6 of this Act.

Here "notice" is not addressed to any individual but is to be given in the advertisement of sale prescribed in Section 6 itself. In the Act "notice" addressed to some individual is to be found only in Section 7 which provides for notice to ''raiyat. It is well-settled that non-service of notice u/s 7 is no ground for setting aside a sale. If therefore the suggested distinction were to be accepted, the provisions of Section 8 of Act 7 of 1868 would be nugatory, so far as it relates to notices prescribed in Act 11 of 1859. No doubt, Section 5 of Act 7 of 1868 says:

Every notice in and by this Act, or by the said Act 11 of 1859, directed to be served, shall be served by delivering to the person to whom it may be directed.

But this section merely prescribes the mode of serving notices which are directed to some person. It does not mean that a notification prescribed in Act 11 of 1859 which is not directed to any individual is not a notice within the meaning of Section 8 of Act 7 of 1868. It will be noticed that this section uses the words "required to be served or posted", and not merely "required to be served."'' It is to be observed that Section 1 of Act 7 of 1868 which is a definition section says nothing about "notice". In the-view I take, the questions whether the notifications under Sections 5 and 6 of Act 11 of 1859-were duly published and whether the plaintiffs sustained substantial injury by reason of the alleged non-publication do not arise. But as these points have been argued, it will be-better to record my findings.

Section 5 provides that the notification mentioned therein shall be affixed in five places, (1) in the office of the Collector, (2) in the Court of the Judge, (3) in the Munsif''s Court, (4) in the police thana and (5) at the kutchery of the owner of the estate or at some conspicuous place upon the estate. The learned Subordinate Judge has found that the notification was not published in places (4) and (5). This finding has been attacked on behalf of the appellants. His finding with regard to the publication of the notification in the other three places has not been challenged before us. I shall first deal with the publication of the notification at the kutchery of the owner or at some conspicuous place upon the estate. The service report Ex. A (8) shows that this, notification was hung up on the dochara of one Nathuni Singh in village Bishunpur Pratap and that he attested the report, (After considering the evidence his Lordship proceeded.) The learned Subordinate Judge after considering all the evidence came to the conclusion:

Thus I have grave doubt about the correctness of the report Ex. A. (8). Even if it be correct and it was served at the doehara of Nathuni Singh which lies in tauzi No. 3306, it is no compliance of the provisions of Section 5 of Act 11 of 1859, and, therefore, such a service is not valid.

Upon the materials on the record, I find it difficult to hold that this conclusion is not correct. As regards the publication of tha notification u/s 5 at the police-station, the defendants produced a certified copy Ex. G of the notification which was sent to the police-station for publication. The service report on it is in'' these words "Sir, Published, M.O.S. (Sd.) Illegible." There is also the seal of Parsa P. S., Saran. This report, however, has not been proved. Nor has any evidence been given that the notification was published at the police-station. The learned Subordinate Judge says,

such document requires formal proof in order to be taken in evidence. I, therefore, reject the certified copy of the report of the police officer3 about the service of the notice at police-station. Thus there is no evidence that notice was served at the police-station as required by Section 5 of the Act.

But the question is, have the plaintiffs-proved that the notification was not published? It appears that in the evidence adduced on behalf of the plaintiffs there is even no specific denial that the notification was published at the police-station. Therefore, assuming that the report of the Police Officer on Ex. G is not admissible in evidence without formal proof, the position is that there is no evidence on either side about the publication. In order to succeed in the suit, the plaintiffs must prove that the sale was held contrary to the provisions of the Act. The plaintiffs must, therefore, fail, so far as the publication of the notification u/s 5 at the police-station is concerned.

Coming to Section 6, it provides that the notification shall be affixed in two places, (1) in the office of the Collector and (2) in the Court of the Judge of the district. The learned Subordinate Judge has found that the notification was not affixed in the proper place in the Court of the District Judge. (His Lordship then considered the evidence and proceeded.) The learned Subordinate Judge says:

The evidence adduced by the defendants shows that the District Judge has a notice-board where it was not served but it was served at the notice board near the office of the Nazir. I, therefore, find that the service of this notice is not in proper compliance of Section 6 of the Act.

This finding is undoubtedly erroneous. The Nazarat is unquestionably a part of the Court of the District Judge and the proper place for affixing notification such as is prescribed in Section 6 of Act 11 of 1859 is the notice board near the Nazarat and not the notice-board near the District Judge''s ijlas which is meant for notices relating to ease-work. It must, there fore, be held that the notification u/s 6 Tvas duly published in the Court of the District Judge. The publication of this notification in the office of the Collector is not challenged before us. The next question is whether the plaintiffs have sustained substantial injury by reason of the non-publication of the notification u/s 5 at the kutchery of the owner or at some conspicuous place upon the estate. (After going through the evidence his Lordship proceeded.) I would have been inclined to re mand the case to the Court below for recording a, proper finding on the point after giving both parties an opportunity to adduce evidence. But it is unnecessary to do so as the appeal can be disposed of on the ground I have already indicated. For reasons I have already given, I would allow the appeal and dismiss the suit. But as the appeal succeeds on a point which was not taken in the Court below, I would make no order for costs in this Court. The appellants, however, will be entitled to their costs in the Court below as calculated in the decree of that Court.

Shearer, J.

I agree.