Dindayal Singh and Others vs Raj Keshwar Narayan and Others

Dawson-Miller, C.J.—This is an appeal under the Letters Patent from a decision of Mr. Justice Adami, overruling the decree of the lower appellate Court.

The suit was brought by the appellants who were the tenants of mauza Rampur Uber against their landlords claiming a declaration that a decree passed u/s 69 of the Bengal Tenancy Act, dated the 12th January 1920 in favour of the Defendants Nos. 1 to 3 by the Sub-Divisional Officer of Jahanabad was quite fraudulent, and fit to be set aside and that the defendant had no right to realize the amount covered by such a fraudulent decree. The decree which is complained of in the plaint is one passed u/s 70 of the Bengal Tenancy Act and not u/s 69 as stated in the plaint. Both these sections however have reference to the same subject-matter and relate to appraisement of produce rents at the instance of either the landlord or the tenant in certain cases. I may say at the outset that the case of fraud set up by the plaintiffs was not established and their evidence in this respect was not accepted by either the trial Court or the Subordinate Judge in appeal. The case however upon which they succeeded in the trial Court and in the Court of appeal was that no notice had been served upon the plaintiffs who constitute some of the tenants in the Village under the provisions of Section 70 of the Bengal Tenancy Act. That section provides in effect that the Collector may appoint an officer giving him certain directions as to the making of an appraisement referred to in Section 69 of the Act, and Sub-section (2). Section 70 says that if:

the officer shall before making an appraisement or division give notice to the landlord and tenant of the time and place at which the appraisement or division will be made: but if either the landlord or the tenant fails to attend either personally or by agent, he may proceed ex parte.

Then under the remaining provisions of the section the officer having made his appraisement must submit it to the Collector and by Sub-section (4) the Collector shall consider the report and after giving the parties an opportunity of being heard and making such enquiry (if any) as he may think necessary, shall pass such order thereon as he thinks just.

The case apparently set up by the plaintiffs before the trial Court was that they or some of them had not been personally served with any notice under the provisions of Sub-section (2), Section 70. The facts found by the Munsif in the trial Court were that in some cases the notice had been served personally; in other cases the tenants had refused to accept the notice and in some cases the tenants could not be found personally; but where they were not personally served the notices were affixed at their houses which is a well-known form of service when persons cannot be found. It was also found that some of the tenants who were apparently either the jeth raiyats or important tenants in the village appointed a man called Jit Narain to be their salis and look after the interests of the tenants in the appraisement.

The Munsif finally came to this conclusion: that he thought that the plaintiffs had full knowledge of the proceedings; in other words, he considered that they had been served either personally or by affixing the notices upon their houses and that in fact they had full knowledge of the proceedings. He considered however that although proper notice was given within the meaning of Sub-section (2) nevertheless under Sub-section (4) they were not given any notice so as to give them an opportunity of being heard upon the amin''s report. The reason why the Munsif arrived at the conclusion that the plaintiffs had not been given an opportunity of being heard before the Collector in objection to the amin''s report appears to have been that there was nothing in the order-sheet to show that any notice had been served upon them to appear before the Collector and take objection, if they thought fit, to the amin''s report. What the Collector in fact did was, after receiving the report he kept his final order pending for a week to enable the parties, if they had any objection, to come forward and represent it before him, and in my opinion this being, I think, a mixed question of fact and law it seems to me that was quite sufficient compliance with the provisions of Section 70, Sub-section (4), because, assuming that proper notice is given under Sub-section (2), then the parties know exactly what has been done by the amin when he made his report. They do in practice appoint a person to represent them known as a salis. He and the amin together between them discuss, and possibly dispute as to the amount of the produce in each of the fields and between them they eventually arrive at the proper amount of produce. At all events the tenants have that opportunity of knowing exactly what is contained in the amin''s report long before it goes to the Collector. Therefore if they have any objection to make and if sufficient time is given before the Collector passes his final orders to enable them to come forward and make their objections, that is, in my opinion, a proper compliance with the provisions of Sub-section (4) and no further notice is required upon the tenants to enable them to come and make their objections.

When the case went to the Subordinate Judge on appeal he did not in terms find any facts contrary to those found by the Munsif. He seems to have been of opinion that the service of notice under Sub-section (2) in the manner in which I have just described was not a proper compliance with that Sub-section, and that in the cases where personal-service was not made the plaintiffs were entitled to have the decree set aside. This appears to me to be taking a highly technical view of the meaning of Sub-section (2). I may point out that there is nothing in Sub-section (2) about serving notice personally upon the parties and although to comply with that section it is I think essential that the parties should in one manner or another be given notice of the fact that the amin is about to make an appraisement, still no method of serving notice is prescribed in the Act, and the words used in the Act are not "serve" notice but "give" notice and it seems to me that if the amin comes to the village and gives notice to all and sundry either by informing them personally or by leaving notices at their houses then that is prima facie a compliance with the section. If that is done, then I think it lies upon those who are complaining that the section is not complied with to come forward and give evidence that they in fact had no notice. That was not done in this case. The plaintiffs seem to have thought that the defendants would have some difficulty in proving personal service on each of the plaintiffs and one of the most important of the tenants at all events although he appears to have been in Court was not called as a witness. The others in so far as they stated that they had no notice, were not believed by the Munsif who came, to the conclusion that they had full knowledge of the proceedings.

The learned Subordinate Judge having arrived at the conclusion that the serving of notice in the manner which I have described was not a proper compliance with Sub-section (2) further went on and said:

There was therefore no opportunity given to these persons to object to the report of the amin, and in my opinion this makes the decree against them void u/s 70, Clause (4) as interpreted in the ruling cited by the lower Court.

If in fact the plaintiffs had no notice under Sub-section (2) and nothing more was done, I quits agree with the learned Subordinate Judge that they had no opportunity of objecting to the Collector''s report under Sub-section (4), but if, on the other hand, the mode of giving the notices as found by the Munsif in this case was a proper mode, then it seems clear that the parties had an opportunity under Sub-section (4) because the Collector postponed the final orders passed by him for a week and that could only be for the purpose of giving the parties an opportunity of coming forward and making their objections,

When the case came on second appeal to the learned Judge of this Court he came to the conclusion that there was service of notice even if it be granted that it was irregular as against some of the plaintiffs. He then went on and said that the Court below also found that an opportunity was given to the plaintiffs u/s 70, Sub-section (4) of the Bengal Tenancy Act, but in that respect either he had an imperfect copy of the judgment before him or there is some slip, because the actual finding of the Subordinate Judge was not that an opportunity was given under Sub-section (4), but that no opportunity was given. That however is not a matter of any importance in the view I take of this case for although this is a question of fact, still the question whether certain facts found amounted to giving notice within the meaning of the section or not is a question of law. We know what the facts found ware and upon those facts it seems to me that proper notice was given within the meaning of Sub-section (2), Section 70 and in these circumstances all was done that was necessary to make the Collector''s decree final and binding.

This appeal must be dismissed with costs.

Foster, J.

I agree.