Shaikh Ultaf Hussain and Another vs Kali Ram Dokania and Others

Manohar Lall, J.—In this appeal by the plaintiffs the question for decision is whether the learned Subordinate Judge was right in refusing to set aside the revenue sale upon the allegation that the sale was without jurisdiction as there was no arrear in fact for which the sale wag held.

The material facts are not in dispute. Mahal Matha Dih bore Tauzi No. 3411 on the tauzi ledger at a revenue of Rs. 132-5-0. On 18th June 1867 there was a collectorate partition of the mahal as the result of which nine annas and six pies of the parent estate was carved into village Narayanpur bearing Tauzi No. 4038 at a revenue of Rs. 16-6-0 which was made payable in two instalments, Rs. 8 in April and Rs. 8-6-0 in December (see Ex. 8). The remaining portion of the mahal was converted into Tauzi No. 4039 representing three annas of the mahal and Tauzi No. 4040 representing the remaining three annas and six pies of the mahal. We are not concerned in this case with the last two tauzis.

In 1920-21 as the result of an application by a cosharer of three annas four gandas and one cowrie of Narayanpore, Tauzi No. 4038, a separate account for Tauzi No. 4038/1 was opened and the revenue fixed was Rs. 2-2-0 payable in April and Rs. 2-6-0 in December. The residuary share or the ijmali share of 12 annas 15 gandas and 8 cowries retained Tauzi No. 40S8 at a revenue of Rs. 11-14-0 which was payable in two instalments i.e. Rs. 5 14-0 in April and in December Rs. 6. On 9th May 1939 the Collector issued a notification u/s 7 of Act 11 [XI] of 1869 (the Revenue Sale Law)--hereinafter to be called the Act--forbidding "the raiyats to pay rent, and in that notification it was stated that Rs. 2-8-6 on account of arrears of land revenue in respect of Tauzi No. 4038/ijmali having a sadar jama of Rs. 16-6 0 was found due u/s 2 of the Act and 28th March 1939 was fixed u/s 3 of the Act for payment of the same and whereas this was not paid by 28th March 1939, the ijmali share would be sold by public auction on 5th June 1939.

In accordance with this notification, the sale was held on 5th June 1939 and purchased by the defendant for Rs. 630. Ulfat Hussain, plaintiff 1, alleges that he purchased various shares in this tauzi by several transactions of the years 1930, 1931, 1932 and 1933 for a sum of Rs. 12,000. The remaining share in the tauzi is alleged to have belonged to the pro forma defendants. Plaintiffs 1 and 2 filed separate appeals on 2nd August 1939, before the Commissioner of Bhagalpur to have the sale set aside, but the appeals were rejected. They also failed to get any relief from the Board of Revenue. Accordingly the present suit was instituted on 4th June 1940, by plaintiffs 1 and 2, in which they joined the pro forma defendants as defendants second party, upon the allegation that the sale held on 5th June 1939 was without jurisdiction as the tauzi was not in arrears in fact on the date of the sale, and in any case even if there was any arrear, the sale could not have been held on that date before the expiry of the period of grace in January 1940. It was also alleged that notices required by Sections 6 and 7 of the Act had not been served in the manner required by law with the result that a property worth about Rs. 14,000 has been sold for a grossly inadequate sum of Rs. 630. It was also alleged that defendant 2 was the real purchaser who purchased the property benami in the name of his creature, defendant 1.

Kali Ram, defendant 1, alone contested the suit, and he urged that he was the real purchaser that the suit of the plaintiffs was barred by limitation by Section 33 of the Act as they did not urge the principal ground of attack to the sale in the appeal before the Commissioner. It was pleaded that the kist bandi for the tauzi in suit was not payable in April and December from the time of the Permanent Settlement and even if it is proved that the kists were so fixed in April and December by subsequent kabuliyats, this was wholy unauthorised and not binding upon the Collector. On the question of fact it was pleaded that the arrear for which the sale took place was actually due in March 1939. It was denied that'' there was any defect in the notices under Sections 6 and 7 of the Act or there was any illegality or fraud in publishing or conducting the sale. It was denied that the plaintiffs have suffered any loss on account of any inadequacy in the price fetched.

The learned Subordinate Judge has come to these conclusions :

(1) There is serious doubt if the Batwara officer was under the law empowered to change the original kistbandi dates for payments of land revenue fixed with the proprietors of the mahal at the time of permanent settlement and fix new kistbandi dates for the separated tauzi (tauzi No. 4038) of the mahal.

(2) Even if it be supposed that April and December as mentioned in the agreement, Ex. 3, were the kistbandi dates within the meaning of Section 2, Revenue Sale Law for payment of land revenue, he is satisfied on, the evidence that the tauzi was in arrear to the extent of Bs. 2-6-0 on 28th March 1939 which was the latest day for payment of the same fixed by the Board of Revenue u/s 3 of the Act.

(3) There is no inaccyracy of share of the estate in the notices issued by the Collector under Sections 6 and 7 of the Act and these notices were duly served in acoordanoe with law.

(4) In view of Section 33 of the Act the plaintiffs are not entitled to take any ground for setting aside the sale which was not taken by them before the Commisioner.

(5) The plaintiffs are precluded from impeaching the title of the auction-purchasers by reason of any omission, informality or irregularity as regards serving or posting of the various notices required by the Act. Accordingly he dismissed the suit. [Hence the appeal to this Court.

The substantial point argued by Mr. S.C. Mazumdar is that the learned Subordinate Judge is in error in giving the first two findings quoted above.

Exhibit 3 is the kistbandi dated 8-1-1868, for payment of Government revenue in respect of 9 annas and 6 pies share in Narayanpur, taluqa Mahta dih. It states:

The partition of the said mahal was confirmed by the Revenue Commissioner (in order) No. 42, dated 18-6-1867. We do therefore execute this kistbandi and declare that we shall pay the Government revenue as per instalments given below.

Rs. a.p.

16-5-61

0-0-5 1/4 Increase

16-6-0

April Rs. 8/-

December Rs. 8/6/.

Dated 8-1-1868.

This document is found attached to the batwara nathi and is executed by Ahmad AH Mandar and others by the pen of Jhumak Lai Mokhtarkar--these persons were the then proprietors of the separated tauzi 4038. This kistbandi was executed in accordance with Section 94, Estates Partition Act, which provides that when the partition is confirmed and the Collector gives possession to the proprietors of the separated estate, he must call upon the proprietors to enter into a separate engagement for the payment of such land revenue. Mr. Jha contended that the Collector had no jurisdiction to fix dates for payment of the revenue other than those fixed at the time of the Permanent Settlement. But I am unable to agree with this contention in view of the clear provisions of Section 94. I do not understand how the learned Subordinate Judge felt any doubt as to whether the Batwara Officer was empowered under the law to change the original kistbandi dates fixed for-the payment of the land revenue at the time of the Permanent Settlement. His attention does not appear to have been drawn to the clear provisions of Section 94. Accordingly, I do not agree with the first finding of the Subordinate Judge and would hold that the instalment fixed for the payment of the land revenue for the residuary share in question was validly fixed and which was in April and December each year.

The next question is: when did the estate fall into arrears in 1938 or in 1939. It in important to draw a distinction between Section 2 and Section 3 of the Act. Section 2 provides 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 an arrear of revenue. I have already found that the instalments of the revenue for the tauzi in suit were payable in April and in December. Therefore, by the application of Section 2 the revenue which is not paid in April in each year would be considered an arrear of revenue on the 1st of May following. Similarly, the instalment which was payable in December each year would, if unpaid, be considered an arrear of revenue on 1st January following. Section 3 then provides that the Board of Revenue shall determine upon what dates all arrears of revenue shall be paid up in each district, in default of which payment the estates in arrear in those districts shall be sold at public auction. For the district within which the estate in suit is situated the Board of Revenue have fixed 12fch January and 28th March as the latest dates fixed for the payment of arrears of revenue--see column 3 p. 144 of the Board''s Tauzi Manual, 1924 edition the estate pays an annual revenue exceeding Rs. 10 but not exceeding Rs. 60.

This being the position, the problem to be solved is whether the estate in suit was in arrear and on what date. The extracts from the tauzi ledger for 1936-37, 1937-38, 1938-39 are on the record and explain the position clearly.

(After examining the entries in the tauzi ledger his Lordship proceeded thus I, therefore, fail to understand how from the books of the Collector it can be even suggested that there was an arrear at the end of December 1938. The Collector is bound by these books of account which show that in January 1939, there was an advance payment. Mr. Jha faintly suggested that the books of the Collector are wrong and that he being an independent purchaser is not bound by any mistake in the calculation in the books of the Collector. In my opinion, it is unnecessary to consider this argument because I find that the books of the Collector are not wrong in fact. These books had never been altered and no suggestion had been made to any of the witnesses of the Collector or anyone else that these figures in the books of the Collector are wrong.

For these reasons, I am of opinion that the learned Subordinate Judge should have held that this estate was not in arrears in December 1938 and, therefore, was not in arrear on 1-1.1939. This estate on the other hand was in excess on 31-11939. The instalments payable for the revenue in 1939 were April and December according to the kistbandi, but according to the date fixed by the Board of Revenue it is the non-payment of the arrear of these two instalments which would have rendered the estate liable. As a result of non-payment of April 1939 instalment in full the estate would be deemed to be in arrear on 1-5-1939. The latest date for the payment of this arrear could not be earlier than January 1940. The sale of the estate, therefore, on 5-6-1939, was wholly without jurisdiction. It is now well settled that the Collector has no jurisdiction to sell any estate if there are no arrears in fact.

Mr. Jha contended that this particular point was not taken u/s 33 of the Act in the appeal before the Commissioner. The answer to this contention is to be found in the well-known ease of the Privy Council Bal Kishen Das v. Simpson (1998) 25 I.A. 151. The head-note states:

Act XI of 1839 does not sanotion, and by plain implication forbids, the sale of any estate which is not at the time in arrear of Government revenue.

And it was held that the Collector had no jurisdiction to sell and that the suit was not excluded from the cognizance of the civil Court u/s 33 by reason of the Commissioner not having adjudicated on the objections to the sale. Lord Watson in delivering the judgment of the Board observed at p. 158:

The enactments of 1859 and of 1868 are obviously intended to apply to oases in which, if the irregularity or illegality of the sale proceedings alleged by tire objector be negatived, the sale will remain valid. But the chief and substantial objection upon which the appellants'' plaint is based is that, at the time when their 5 annas share of the village Shahazadpore Anderkilla was sold, there were no arrears of revenue due by them in respect of it. It does not appear to their Lordships to admit of dispute that the objection is founded in fact. In their opinion a stupid blunder made by the Collector or his staff in his own books cannot deprive the appellants of their right to claim, and have effect given to, the permanent abatement which was allowed by the Board of Revenue in March 1884. The result is that the whole proceedings of the Collector, with a view to the sale of the 5 annas share, were beyond his jurisdiction, and are not entitled to the protection given him by the Act in cases where sale is authorised. Although it may be attended with some irregularity or illegality. Their Lordships are accordingly of opinion that it was rightly held by the Subordinate Judge that he had jurisdiction to entertain the objection to the sale to which he gave effect, although the point had not been considered and disposed of by the Commissioner.

Mr. Mazumdar argued that the learned Subordinate Judge was wrong in holding that notices under Sections 6 and 7 of the Act were valid and in accordance with law or were served in accordance with law. Having perused the evidence and seeing the notices we are satisfied that the findings of the learned Subordinate Judge on these two questions are well founded and must be affirmed. Mr. Mazumdar, however, is entitled to relief upon my finding that there was no arrear in fact on the date of the sale.

The result is that the appeal is allowed, the decision of the learned Subordinate Judge is set aside, and the suit of the plaintiffs is dismissed, but in the circumstances each party will bear his own costs in this Court and in the Court below.

Ramaswami J.

I agree.