Mahomed Sulaiman vs Kumar Birendra Chandra Singh (deceased) and others

Sir John Edge, J.

These two consolidated appeals from two decrees, dated the 25th May, 1920, of the High Court at Calcutta, which reversed two decrees, dated the 31st January, 1918, of the Subordinate Judge (Second Court) of the 24th Parganahs. The decrees from which these consolidated appeals have been brought were respectively made in suits numbered 19 and 20 of 1917. In each of these suits the present appellant was the plaintiff, and some of the present respondents were the defendants in one of the suits and others of the present respondents were the defendants in the other of the suits. The suits were tried together, as were the appeals to the High Court. The suits are by an auction purchaser, under Act XI of 1859, of lands for ejectment of undertenants and for mesne profits.

The lands to which the suits relate are situate within the Collectorate of the 24 Parganahs, a permanently settled District of Bengal, to which Act XI of 1859 applies. On the 14th April 1915, the Collector of the District issued notice and proclamation under Act XI of 1859 that the holding number 20A, which is the land now in question, would be sold under Act XI of 1859 for the realization of Rs. 6,10 annas and 5 pies revenue in arrears for the year 1320 B.S. The holding was sold by auction on the 17th May, 1915, and was purchased by the plaintiff'', who subsequently received a sale certificate. The Government revenue for the arrears of which the holding was sold was the revenue for 1320 B.S. The defendants were at the date of the auction sale undertenants of lands in the holding sold, and the plaintiff claims to be entitled to eject them.

The plaint and the written statement of Kumar Birendra Chandra Singh, a defendant in suit No. 19 of 1917, and the plaint and written statement in suit No. 20 of 1917, are in the printed record.

In his plaints the plaintiff alleged that the Collector of the District, on the 17th May 1915, put the holding No. 20A up for sale by auction under the provisions of Act XI of 1859 for arrears of the Government revenue, and that he (the plaintiff), having purchased it at the sale and having obtained the sale certificate, had, under section 37 of Act XI of 1859, acquired it free of all encumbrances, and had become entitled to annul all the subordinate rights, and to recover Khas possession of the holding by ejecting the tenants holding any subordinate right, and claimed a decree for ejectment and mesne profits.

The defence, so far as it is now material, was that there was no arrear of the Government revenue to recover which the Collector was entitled to sell the holding, and that in any case the defendants were within the exceptions of section 83 of Bengal Act VII of 1868 ; that section 37 of Act XI of 1859 did not apply ; and that the plaintiff was not entitled to eject the defendants. The Subordinate Judge fixed five issues, of which issues (2) and (3) are now alone material. Issue (2) was as follows :

Is the sale valid and operative, and has the plaintiff acquired any title under the same by his purchase ? "

Issue (3) was : '''' Are the under-tenancies of defendants protected under section 12 of Act VII of 1868, and whether they can be annulled ? "

Their Lordships will later have some observation to make as to issue (3). The judgment then stated how the sub-judge decreed the suits and the High Court dismissed them and continued as follows. The first issue which their Lordships have to consider is, was there an arrear of the Government revenue for 1320 B. 8. which entitled the Collector to sell the estate ? That is an issue which depends upon the evidence in these suits and not upon the decision of the Board on the facts as found by the Board in Haji Buksh Elahi v. Durlav Chandra Kar 39 IA 177 as the High Court apparently thought it did.

There was no evidence as to when the holding, of which the estate sold by the Collector in 1915 formed part, was granted, but there is evidence that one Syed Abdul Ali, who had purchased the holding No. 20-1 in Mauza Paikpara from Srimati Dellorus Banu Begum on the 17th day of Bhadra 1269 B.S. appointed on the 15th September, 1862, Mokhtars to apply on his behalf to the revenue authorities for mutation of names in his favour and that on 10th November, 1862, he gave to the Deputy Collector the following acknowledgment of having received a pottah :- "Holding No. 21-1, Bounded as on the map and on the Pottah.

" I, Syed Abdul Ali, do hereby acknowledge to have received a pottah for (17-5 4-2) of ground found by survey to be contained in the above Holding and assessed at the rent of Company''s Rs. 20-12-4 per annum and I give this document as my kabuliyat, consenting to pay the above annual jumma. Dated the 10th day of November 1862.

"Syed Abdul Ali,

" Through the pen of

" Bipradas Bose,

" Moktar. "

The pottah was evidence of his title to possession. In exchange for the pottah Syed Abdul Ali gave to the Deputy Collector on the 10th November, 1862, a kabuliyat which so far as is material was as follows :-

"Holding No. 20-1, Boundaries as shown on the pottah and map.

" This deed of kabuliyat is executed by Syed Abdul Ali to the following effect :-

" That I have got a permanent mourasi pottah in respect of lands measuring 15 bighas 5 cottahs 4ch and 10 gundahs the particulars of which are stated above, acknowledging as yearly rent thereof at Company''s Rs. 20, 12 annas, 4 pies. I shall pay the rent year by year. Accordingly on receiving a pottah I execute this kabuliyat. Finis. The 10th November 1862. "

Apparently, Syed Abdul Ali held direct from the Crown and not as an undertenant, but whether his holding was recognised by the Government as an " estate " their Lordships do not know. Admittedly and obviously the holding of Syed Abdul Ali of 1862 was subsequently partitioned and after that partition the yearly revenue of the partitioned part which was sold by the Collector was Rs. 6, 10 annas, 5 pies.

By Section 2 of Act XI of 1859, it is enacted that :-

" If the whole or a portion of a Kist or instalment of any months of the era, according to which the settlement and Kistbundee 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 an arrear of revenue. "

By Section 3 of that Act it is enacted so far as is material as follows :-

" Upon the promulgation of this Act, the Board of Revenue at Calcutta shall determine upon what dates all arrears of revenue and all demands which by the Regulations and Acts in force are directed to be realized in the same manner as arrears of revenue, shall be paid up in each district under their jurisdiction, in default of which payment the estates in arrear in those districts, except as hereinafter provided, shall be sold at public auction to the highest bidder."

According to the notification of the Board of Revenue, in force at the date of the sale here in question, the 28th June, 1914, was the day when the arrears of revenue which had become due for 1320 B. S. should have been paid.

The Kabuliyat given by Syed Abdul Ali in 1862 does not expressly state when the yearly revenue should be paid. The learned Subordinate Judge came to the conclusion that the letting was for the Bengali year, and having regard to Act XI of 1859 and the notification of the Board of Revenue which was applicable at the time of the sale, he found that one year''s revenue, Rs. 6,10 annas and 5 pies, was due on the 1st May, 1914 and was in arrear on the 17th May, 1915, and that the sale was consequently a valid sale.

The learned Judges of the High Court construed Syed Abdul Ali''s kabuliyat of 1862 as a letting by which the yearly rent should be payable not at the end of the Bengali year but on the 10th November during the tenancy, and finding that in that view of the case there was no revenue in arrear at the date of the sale, for which the estates could be sold, they held that the sale was invalid and dismissed the suit.

In their Lordships'' opinion the learned Judges of the High Court misconstrued the kabuliyat of 1862 in holding that by it the letting was a yearly letting from the 10th of November and not, for the Bengali year and incorrectly found that at the date of the sale there was no arrear of revenue for which the Collector could sell the estate. The 10th November, 1862, was merely the date when Syed Abdul Ali signed the kabuliyat; he had in September, 1862, taken over a then existing tenancy of the estate. It appears from the accounts in the Collector''s office that the tenancy was for the Bengali year. Although the accounts relating to this estate which were kept in the Collector''s office may not be in some matters easily understood by those who are not familiar with the system of keeping accounts in Collector''s offices in that part of India, it has not been proved that they were not correctly kept by the native clerk in the office who was under the supervision of the Collector, who would understand what those accounts showed, and their Lordships are entitled to presume, and do presume under Section 114, Illustrations (e) and (f), of the Indian Evidence Act of 1872, that they were correctly kept, and that there was a Government Revenue of Rs. 6, 10 annas and 5 pies in arrear for 1320 B.S. to realize which the estate might have been, and was, in fact, sold on the 17th May, 1915, by the Collector.

There remains to be considered the issue as to whether the defendants were or were not protected by the exceptions of section 37 of Act XI of 1859, or by the exceptions of section 12 of Bengal Act VII of 1868. The judgment then discussed whether the exceptions of S. 37 of Act XI of 1859 applied to the plaintiff''s case and remarked that the Courts below had not considered the point though in the view their Lordships took of the case, it was immaterial and then proceeded as follows :- Before concluding this judgment, their Lordships must allude to the fact that the learned judges of the High Court, before whom the appeal to their Court was heard, did not express any opinion as to whether the defendants or any of them were protected from ejectment by any of the exceptions of section 37 of Act XI of 1859, or of section 12, Bengal Act VII of 1868. The issue on that subject was before them and they should have considered it and found upon it.

Their Lordships will quote for the information of those learned judges what Lord Justice Turner in delivering the judgment of the Board in Tara Kant Banerjee v. Puddo Money Dossee (1865) 10 MIA 476 : 5 WR 63 : 1 Suther 631 : 2 Sar, 184 (PC) said as to the duty of High Court Judges to pronounce their opinions on all important issues in cases before them. The Lord Justice said :-

The cause has not been decided in either Court'' on the principal point, whether the lands formed part of the jote tenure or of the Talook. Their Lordships are unfortunately unable to decide this appeal finally by reason of this defect. The Courts below, in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the Courts below, should, as far as may be practicable, pronounce their opinions on all the important points."

Their Lordships will humbly advise His Majesty that these consolidated appeals should be allowed with costs, the decrees of the High Court should be set aside with costs and the decrees of the Subordinate Judge should be restored.