Damodar Prasad vs Mt. Wakilunissa and others

Fazl Ali, J.—This is an appeal from the decision of the Additional District Judge of Monghyr reversing the decision of the Munsif in a suit instituted by the plaintiff-respondent to recover possession of an estate which has been sold for arrears of revenue. The first question to be determined in this appeal is whether the Collector had Jurisdiction to sell the estate on 6th June 1927 on which date it was sold and purchased by the appellant. The learned District Judge has held that the Collector''s sale was without jurisdiction inasmuch as under the Revenue Sales Act the mauza in question was not liable to be sold before 28th March 1928. It appears from the plaint that the revenue of the mauza was Rs. 5-3-0 out of which the share of plaintiff 1 was Rs. 4 and the remaining Rs. 1-3-0 was the share of the other plaintiffs. The whole of this amount according to the terms of the kabuliyat under which the mauza was held was payable only once a year and that was on 23th March. This fact is definitely stated in the plaint and not expressly denied in the written statement. Now, S. 2 of Act 11 of 1859 enacts that:

if the whole or a portion of a kist or instalment of any month of the era according to which the settlement and kistbandi of any mahal have been regulated be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered as an arrear of revenue.

Thus the sum unpaid did not become an arrear until 1st April and as in the present case the latest date of payment fixed by the Board of Revenue under S. 3 of the Act coincided with the kistbandi date, the estate was not liable to be sold until 28th March of the following year. This is clear from S. 3 of the Act, but if any further authority in support of this view is necessary it is to be found in Haji Baksh Elahi v. Durlav Chandra Kar, (1912) 39 Cal 381 = 16 IC 821 = 39 IA 177 (PC), Mt. Sarswati Bahuria v. Surajnarain Chaudhuri, 1931 PC 57 = 130 IC 676 = 10 Pat 496 = 12 PLT 357 (PC), Krishna Chandra Bhoumik v. Pabna Dhanabhandar Co, 1932 PC 61 = 59 IA 68 = 136 IC 410 = 59 Cal 1034 (PC). It is true that these decisions have been explained by the Full Bench of this Court in Jadumandan Singh v. Savitri Devi, 1933 Pat 236 = 143 IC 869 = 12 Pat 750 = 14 PLT 247 (SB). But as in the present case the kistbandi date was feed by the kabuliyat under which the estate is held and it is a mere coincidence that the kistbandi date and the date fixed by the Board of Revenue as the latest date of payment happen to be the same, this case cannot be distinguished from Haji Baksh Elahi v. Durlav Chandra Kar, (1912) 39 Cal 381 = 16 IC 821 = 39 IA 177 (PC) and must be held to be governed by the decision of the Judicial Committee in that case. It was conceded in Mt. Sarswati Bahuria v. Surajnarain Chaudhuri, 1931 PC 57 = 130 IC 676 = 10 Pat 496 = 12 PLT 357 (PC) that those cases in which the kistbandi dates were fixed on agreement with the Collector are cases of an exceptional nature and as such would not be covered by the decision in that case, even though the kistbandi date coincided with the latest date of payment fixed by the Board of Revenue. The second point argued on behalf of the appellant is that the civil Court had no jurisdiction to set aside the sale, because in the present case there was no appeal before the Commissioner by the respondent under S. 33 of Act 11 of 1859 which provides that a sale cannot be set aside by a Civil Court, unless the grounds upon which it is sought to be set aside are specifically taken in an appeal to the Commissioner presented under that section. This point has been dealt with by the learned District Judge who has expressed the view that the sale by the Collector being without jurisdiction, it was not necessary for the aggrieved party to prefer an appeal to the Commissioner against the order of the Collector before instituting a suit in the Civil Court for recovery of possession.

Mr. S.N. Bose who appears on behalf of the appellant disputes the correctness of this view and contends that in the preterit case the Collector had the power to sell the estate as soon as there was an arrear and therefore the sale, though irregular, cannot be said to be without jurisdiction, In support of this contention he relies upon two decisions, one of the Judicial Committee in Govind Lal Roy v. Ramjanam Misser, (1894) 21 Cal 70 = 20 IA 165 (PC) and the other of this Court in Jagadishwar Narayan v. Muhammad Haziq Hussain, 1924 Pat 537 = 77 IC 851 = 5 PLT 473. Both these decisions, however, have been considered and fully explained by Wort and Khaja Mohammad Noor, JJ., in Pirthwi Chand Lal v. Kirtyanand Singh, 1932 Pat 21 = 134 IC 149 = 10 Pat 757 = 12 PLT 401. Noor, J., in dealing with the matter observed:

It is clear that the liability of the estate to be sold arises not on the estate being in arrears but on the arrears remaining unpaid on the latest date fixed .... The power of the Collector therefore to proceed to sell commences after the latest date of payment and not upon the accrual of the arrears.... S. 3 is the only section which makes an estate liable to sale and does so if the arrears raining unpaid after the latest date fixed .... It may be argued that Govind Lal Roy v. Ramjanam Misser, (1894) 21 Cal 70 = 20 IA 165 (PC) by implication holds otherwise. S. 17 of the Act prohibits the sale under certain circumstances and their Lordships have held that disregard of this prohibition does not affect jurisdiction .... Want of jurisdiction is one thing and disregard of prohibition after the commencement of jurisdiction is another and I have already said that the jurisdiction commences after the arrears romain unpaid on the latest date of payment.

As at present advised I am not prepared to differ from the views expressed by Noor, J., particularly as they seem to be supported by the decision of the Judicial Committee in Haji Baksh Elahi v. Durlav Chandra Kar, (1912) 39 Cal 381 = 16 IC 821 = 39 IA 177 (PC) P.C. That decision seems to be in point because in that case though an appeal had been preferred to the Commissioner, it was barred by time and as Noor, J., has pointed out in Pirthwi Chand Lal v. Kirtyanand Singh, 1932 Pat 21 = 134 IC 149 = 10 Pat 757 = 12 PLT 401 an appeal which is presented to the Commissioner beyond the date of limitation is no appeal in the eye of the law. Further, as was pointed out in Pirthwi Chand Lal v. Kirtyanand Singh, 1932 Pat 21 = 134 IC 149 = 10 Pat 757 = 12 PLT 401, the observations made by Das, J,, in Jagadishwar Narayan v. Muhammad Haziq Hussain, 1924 Pat 537 = 77 IC 851 = 5 PLT 473 as to the applicability of S. 33 in cases where the sale takes place before the last date of payment were strictly speaking obiter dicta and in any event the Judicial Committee refrained from expressing any opinion with regard to the soundness of those observations when the case went up in appeal before them.

In my judgment therefore the learned District Judge was right in holding that the Civil Court had jurisdiction to grant a decree for possession in this case.

The last point urged on behalf of the appellant is that there is no proof on the record that the arrears for which the estate was sold were the arrears of 1927 and not of 1926. It appears to me, however, to be clear that both the parties fought the case on the footing that the estate had been sold for arrears of 1927 and the matter seems to admit of no controversy in view of the following statement of facts to be found in the judgment of the learned District Judge:

The revenue payable in respect of the share of the appellant amounted to Rs. 4 only. It appears that this amount was paid for the March kist of 1927 on behalf of the lady but wrongly credited as cess and not revenue as should have been done. There is another chalan to show that the revenue had been paid for the March kist of 1926.

It is said that the learned District Judge has made an error of record and reliance was placed on a remark made by the Munsif that:

No chalan has been filed in this case to show that the entire sum was paid in the March kist of 1926 as well.

As I have however already stated, it is clear from the pleadings of the parties that it was neither party''s case that the sale took place for the arrears of 1926 and it was therefore not open to the Munsif to set up a new case against the plaintiff without giving them an opportunity to meet it. I may mention however that the plaintiff-respondents offered to tender in evidence in this Court a copy of the Collector''s ledger to show that there was in fact no arrear in respect of the revenue payable in 1026 but we did not consider it necessary to admit any fresh evidence at the present stage.

As in my judgment all the contentions raised on behalf of the appellant fail, I would dismiss the appeal with costs.