Raja P.C. Lal Chaudhury vs Haji Majidur Rahman and Others

Wort, J.—This is the defendant''s appeal in an action brought by the plaintiffs to set aside a patni sale held under Regulation 8 of 1819. The plaintiffs were the dar-patnidars and sepatnidars, the defendants second party being the patnidars. The defendant first party is azmindar of the 16 annas of pargana Haveli and was in possession by realising rent from the patnidars.

The contention by the plaintiffs was that the defendants 2 and 3 in collusion with defendant 1 caused the patni known as Jalkar-Asja and Kamat Sarsouni to be sold by auction on 16th May 1927, fraudulently; the processes were not being served in compliance with Regulation 8 of 1819. The learned Subordinate Judge has decided the case in favour of the plaintiffs.

He has held, however, that the notices were posted at the Collectorate and also at the Zamindar''s kacherry but he has come to the conclusion that there was no publication on the spot within the terms of the Regulation. In the first place although he has not come to any very definite conclusion on the point, he has decided that there had not been a strict compliance with the Regulation in that the zamindar did not include in his petition to the Collector an account of all the Talukdars under the zamindar who had defaulted in paying the patni rent. By that it was understood to mean that the zamindar had not included the defaulters in all the estates of which he may have been in possession as well as the patni in question.

He has relied upon the decision in the case of Raja Bhupendra Narain Singh Bahdur and Others Vs. Madar Bux Sheikh and Others, and a reference in the judgment by Mookerjee, J., is made to Section 8, Clause (2) of the Regulation. The learned Judge in the course of that judgment stated.

This leaves no room for doubt that the notice to be stuck up in the cutcherry of the Collector, like the petition, must contain specification of the balances that may be due to the zamindar concerned from all the patnidars under him, etc.

In my opinion that judgment does not support the conclusion at which the learned Subordinate Judge has arrived. The wording of the clause is:

the specification of any balances that may be due to him on account of the expired year from all or any talukdars or other holders of an interest of the nature described in the preceding clause of the section.

This can have reference only to the particular patni which is the subject-matter of the sale and it would be a ridiculous construction to place upon the clause to suggest that the notice and petition had to include not only the patni in question but any other patni in whatever part of the country it may have been situated which may have belonged to the zamindar. In so far as the judgment of the learned Subordinate Judge depends upon the decision on this point, in my opinion it cannot be supported. The substantial question however which he had to decide was that it was not published on the spot. This question has been dealt with in the judgment under two main heads. The first was that the village at which the notice is alleged to have been published was not the principal village of this patni mahal.

In the plaint this patni is described as Jalkar-Asja and Kamat Sarsouni. In the Kabuliyat, the original grant of 3rd May 1854, it was described as the entire Kamat Sarsouni and mauza Jalkar-Asja, pargana Haveli. (His Lordship then discussed the evidence on the point and reversing the lower Court''s judgment held). The defendants allege that they served the notice in Jalkar-Asja and in doing this I am satisfied that they served it in the principal village of the patni.

The learned Subordinate Judge then proceeds to discuss the question of whether the notices in fact were served at Jalkar, assuming Jalkar is the principal village and not Sarsouni. He decides that they were not. Of the four attesting witnesses to the document which certified the service three were called by the defendants.

The first was Jhakesu Thakur, the second was Khub Lal and the third Holi Chaukidar. The learned Subordinate Judge''s criticisms of these witnesses appear to be as follows: Jhakesu Thakur, the first, he holds was not a resident of the village although it is admitted that he was a man of substance within the meaning of the Regulation. Khub Lal, on the other hand, he finds was residing in the village although he holds that he was not a man of substance. Holi Chaukidar, he decides, was not a resident of the village and that he was not a substantial man.

Therefore as regards the first condition of the Regulation stating the qualifications of the persons as attesting witnesses, the learned Subordinate Judge finds that the condition was complied with only in one case. He has construed the word "neighbourhood" in Clause 4, Sub-section (2), Section 8, Regn. 8, as meaning a village and he appears to have relied on Clause 6 to help him to come to that conclusion. The Clause 6 is as follows:

In case the people of the village should object or refuse to sign their names in attestation, the peon shall go to the cutcherry of the nearest Munsif, etc.

And Sir Ali Imam supports the judgment of the Subordinate Judge on that ground. It is clear in the first place that Clause 6 contemplates an entirely different set of circumstances. It is only in those cases in which the people of the village object or refuse to sign the receipt that the publication of the notice is made in the principal place.

This question of the construction of Clause 4, Sub-section 2, Section 8, Regn. 8, was decided in 1864. The case ultimately went up to the Privy Council, being the case of Mohinee Dassee v. Juggodamba Dossee [1864] WR 381. The question there was whether the witnesses were men of respectability of the neighbourhood and had attested the notice. It was contended that no person of the village had attested. The learned Judges pointed out that the Regulation does not make it imperative that the attesting witnesses shall be residents of the village, the words used being "residing in the neighbourhood." This decision has been acted upon throughout.

The case came up ultimately before the Judicial Committee ten years later and it is to be noticed that no question was raised on that point before the Judicial Committee. Jhakesu Thakur was admittedly residing in Khamhaila which is contiguous to Jalkar. The second witness, as I have stated, was admittedly residing in Jalkar itself and the Chaukidar although living at some distance away was the Chaukidar of the village. It has always been held that a Chaukidar is an official whose attestation is considered as best possible in all matters connected with service of processes--see the judgment in the same case above referred to before the Judicial Committee: the case of Ram Sabuk Bose v. Monmohini Dossee [1874] 2 IA 71.

So far as the substantial character of these witnesses is concerned, the Chaukidar, as I have stated, has always been relied upon as a person as one of the best possible for the purposes of attesting services of notices. Sir Sultan Ahmad in this connection relies on the case above quoted. The matter there had been heard by the Principal Saddar Ameen and had gone on appeal to the Judge of the 24-Parganas; the Judge, being also the Judge of fact and law, had come to the conclusion that the Chaukidar was a substantial man. The case came on appeal to the High Court in Fort William and the Judicial Committee quoted the judgment of the High Court to the effect that the Chaukidar was an official whose attestation is always considered to be as the best possible in all matters connected with the service of notice.

The judgment of the Judicial Committee went on to discuss the course which the case pursued after it had first come before the High Court. An application had been made in review and the learned Judges of the Divisional Bench proceeded to set aside their former judgment. The Judicial Committee reversing the second judgment in the High Court stated that the judgment of the Judge of first instance and the Judge of the 24-Paraganas might have properly come to the conclusion that the witness (being the chaukidar) was a substantial man. They therefore came to the conclusion that the first judgment of the High Court was right. The case is not necessarily an authority for the proposition that the chaukidar of a village must always be considered as a substantial man, but it does make reference with approval to the first judgment of the High Court when the High Court stated that the chaukidar was a person whose attestation was always considered as the best possible in all matters connected with the service of notice.

The first witness Jhakesu Thakur is admittedly a man of substance. The learned Subordinate Judge, however, has decided that Khub Lal was not a man of substance on the ground that he was paying rent only of Rs. 3 or Rs. 4, but the Subordinate Judge seems to have entirely ignored the fact that he was a man who had some 20 or 30 bighas of land and that the reference to the rent which he paid was for his homestead land and not for cultivated land. In so far as the case depended upon whether the three witnesses who were called were residents in the neighbourhood and were substantial men, in my judgment the decision of the learned Subordinate Judge must be set aside.

The learned Subordinate Judge having disposed of these questions states that although there was non-compliance with the Regulation as regards the witnesses yet it would be immaterial if in fact the service had been shown to have been made. He refers to the fact that the plaintiffs called eight witnesses to prove that no notice had been served. The witnesses examined by the defendants, however, are slated by the learned Subordinate Judge to be either tenants or creatures of the defendants. Exactly what this means it is difficult to appreciate. That they may have been connected with the defendants in some way or other is not seriously disputed.

But I have yet to learn that merely because of that fact the witnesses evidence must be disbelieved. If the evidence was all shaken in cross-examination or if there was anything inherently improbable in the evidence given the fact that they were in some way connected with the party on whose behalf they were speaking might entitle the learned Subordinate Judge to conclude that their evidence was not reliable. I am not forgetting the fact that the decision of a Judge who has had the witnesses before him and whose demeanour he has observed is to be respected, but there is no reason advanced by the learned Subordinate Judge which, in my judgment, would entitle him to discredit this evidence. The argument which he appears to support is a common one before this Court: it is contended that the witnesses are interested witnesses and therefore should not be believed. On the other hand, if they are witnesses who are not in some way connected with the party on whose behalf they were giving evidence, they are described as chance witnesses and therefore it is said, they should not be believed.

It is true that the plaintiffs called a number of witnesses to prove that no notice had been served but an examination of their evidence does not disclose that there is anything which would show that their testimony should be received in preference to that of the defendants'' witnesses. Their evidence has been criticised by Sir Sultan Ahmed on behalf of the appellants, more particularly the two witnesses who were fishermen who although residing in the neighbourhood, would not necessarily have their attention called to the notice served in the village. But in dealing with this question of whether the notices were in fact served some regard must be paid to the case made out by the plaintiffs in their plaint. It was a case of fraud and collusion.

It is a remarkable thing that the only suggestion in support of that case on the findings of the Subordinate Judge is that the notices were not attested by the substantial men of the village. Apart from this there is no evidence in the case whatever. It has been proved conclusively that the notices were posted at the Collectorate and at the Zemindar''s katchery. I would hold that the notice was in fact served and that it was witnessed by substantial men of the neighbourhood within the meaning of the Regulation. For these reasons I would allow the appeal with costs here and in the Court below and dismiss the plaintiffs'' suit.

Scroope, J.

This is an appeal from the decision of the Subordinate Judge of Purnea decreeing the suit of the plaintiffs for setting aside a sale of a patni taluk for arrears of rent. Defendant 1 is the zemindar and defendants 2 and 3 are the patnidars; plaintiffs are dar-patnidars and se-patnidars of a portion of the patni and used to pay rent to defendants 2 and 3; and their case was that defendants 2 and 3 fraudulently and collusively with defendant No. 1 got the patni sold on 16th May, 1927, suppressing all the processes and notices which are required to be served before an estate can be sold under the Patni Regulation 8 of 1819. Defendant 1, the zemindar, contested the suit and his case was that the sale was bona fide and that all necessary processes and notices had been duly served.

The following are the findings of the learned Subordinate Judge. He held that Clause 2, Section 8, Patni Regulation, which requires that:

the zamindar shall present a petition to the Collector containing a specification of any balances that may be due to him on account of the expired year from all or any talukdars or other holders of an interest described

in the 1st. CL, Section 8, had not been complied with as the accounts of Haveli pargana only had been filed and no petition had been put in in respect of other tauzis. He then went on to find that there had been due publication of the notices in the Collectorate and in the zamindar''s kutchery. As regards the publication of the notice on the spot, he held that assuming that the notice was published it was not published in village Sarsouni but in mauza Jalkar, whereas the law requires that it should be published in the principal village and Sarsouni was the principal village and not Jalkar.

He next discussed how the proclamation was served and he came to the conclusion that assuming there was service, the witnesses required by Section 8, Clause (2), Patni Regulation, were not witnesses of the neighbourhood; and he also held that the witnesses were not substantial persons as required by the law. Finally he held that there had in fact been no service at all on the land of the defaulter; on this point he accepted the evidence of the eight witnesses produced by the plaintiff who testified that no proclamation had been served in Jalkar in preference to the defendant''s witnesses.

It may be noticed that in the plaint absolutely no facts are alleged to as establishing fraud beyond failure to get the processes served and in spite of the findings of the learned Subordinate Judge that there was fraud he has to find that there was service in the Collectorates and in the zamindar''s katchery; if the defendant zemindar wanted to perpetrate a fraud of this nature he would suppress all processes; but the finding is otherwise and there is moreover the fact that the zemindar paid Rs. 12,000 for the patni and that there is no suggestion that he bought it at an inadequate price.

So what he gained by fraud, I am unable to understand, because it was not disputed that the rent was in arrears and that the defendants were persistent defaulters. (His Lordship then considered the evidence on the point whether Jalkar or Sarsouni was the principal village and proceeded.) Having regard to the three points mentioned above, namely, that Jalkar carries much the higher rent, that the rent is attested against Jalkar and that Jalkar contains fisheries which were the subject of litigation in the Calcutta High Court, I see no reason not to hold that the requirement of Section 8 of the Patni Regulation that the notices should be served at the principal village upon the land of the defaulter has been observed.

The position shortly is this: a village and certain specific lands in another village are being sold and the defendant got the notices published in the village which was being sold, not in the village where the specific lands only are being sold; and in my opinion he has complied with the requisites of the section on that point apart from the question of their relative importance, which I have found in favour of Jalkar.

The next point that arises is on the finding that assuming there was service, the witnesses were not witnesses of the neighbourhood as required by Section 8, Clause (2), Patni Regulation. (His Lordship considered the evidence on the point and proceeded.) I would also hold that witness Jhaksoo of Khamela is a man of the neighbourhood and I further see no objection to Holi chaukidar on that score.

He is the chaukidar of village Jalkar though he resides at Chhatrail. The chaukidar is the only official in this locality; his official position in such a matter has been described by the Calcutta High Court as an official whose attestation is always considered as the best possible in all matters connected with service of notices, vide Mohinee Dasse v. Juggodumba Dossee [1864] WR 381 and this view of the Calcutta High Court was approved by the Judicial Committee in Ram Sabuk Bose v. Montnohini Dossee [1874] 2 IA 71. So far then as the chaukidar Holi is concerned no objection can be taken to him either on the ground that he is not a man of the neighbourhood or is not a substantial witness. (The judgment after holding that the witnesses were substantial men, proceeded.) As regards the actual service of notice, I cannot see what better evidence, with one exception, the defendant could have produced in this case than the persons who purport according to the notice served to have witnessed its service in April, 1927.

The exception is Enait Hussain, the landlord''s tahsildar who went to serve the notice. He has not been examined; the explanation is that he is no longer in the employ of defendant 1.

The learned Subordinate Judge preferred the plaintiff''s witnesses. I quite recognise that the opinion of the first court is entitled to the greatest weight on such points; but here there are unpleasant and exceptional circumstances which cannot be referred to in the judgment but which are well-known to the learned Advocates on both sides in this case, which must diminish in this case the respect one always pays to the decision of the judge of facts.

To accept the plaintiffs'' case would require us to believe that defendant 1 and defendant 2 along with the witnesses Jhaksu, Khublal and Holi perpetrated a complete fraud; but there is absolutely no evidence of collusion between them. Now on this point all that I can find from the judgment of the court below is this: the Subordinate Judge states that these witnesses are tenants and creatures of the defendant; but that is purely a speculative argument which must apply where any zemindar has to use persons residing within his zamindari to prove the service of notice. (The judgment then discussed the evidence and proceeded.

There is one point remaining: the learned Subordinate Judge held that that portion of the Regulation, namely, Section 8 (second) which requires that the zamindar shall present the petition to the Collector containing a specification of any balances that may be due to him on account of the expired year from all or any talukdars or other holders of an interest of the nature described in the preceding clause of the section had not been complied with.

Now it is not disputed that the petition filed in the Collectorate contained the necessary information so far as this particular patni is concerned and that is all that is required; the section does not mean that if a zamindar wants to sell one particular patni he must present to the Collector a petition showing the entire number of defaulters in every single patni within the zamindari whether he is going to sell them up or not.

There is no suggestion that there were any other patnis sold at the time; in fact we get it from the defendant''s tahsildar Kanhai Lal. "On that day only this Mahal of Haveli was sold and no other."

The ruling relied on by the learned Subordinate Judge, viz., Raja Bhupendra Narain Singh Bahdur and Others Vs. Madar Bux Sheikh and Others, , has no application because in that case there were about forty other astern cases in which the zamindar was interested. In my opinion the petition (Ex. A) complied fully with the law.

The learned Subordinate Judge has quite misunderstood the position. Indeed this portion of his finding was not supported by the learned Counsel for the respondent at all. In my opinion then the requirements of Regn. 8 of 1819 were duly and honestly complied with by the defendant; and I would therefore set aside the judgment of the Subordinate Judge decreeing the suit and I would direct that it be dismissed with costs throughout.