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Najib Mohammad and anr. Vs. Rahman Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 120 of 1948
Judge
Reported inAIR1952Ori131
ActsBengal and Revenue and Sales Act, 1859 - Sections 13, 14 and 33; Presumption under Evidence Act, 1872 - Sections 114; Bengal Land Registration Act, 1876 - Sections 50, 70, 72 and 74A
AppellantNajib Mohammad and anr.
RespondentRahman Khan and ors.
Appellant AdvocateA.B. Roy, Adv.
Respondent AdvocateM.S. Rao, Adv.
DispositionAppeal allowed
Cases ReferredMahomed Nawaz Khan v. Bhagata Nand
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....panigrahi, j. 1. the suit culminating in this appeal was instituted by respondents 1 to 4 for a declaration that appellants 1 and 2 have acquired no title to the suit property by virtue of their purchase of the same, from the auction, purchasers at a revenue sale, and for confirmation, of possession, or, in alternative, for recovery of possession. the salient facts are simple and are undisputed. touzi no. 4011 in mouza berhampur, in cuttack district, bearing a sadar jema of rs. 3/9/0, was recorded in the name of one salim khan and seven others in the collector's registers. the plaintiffs' predecessors-in-title were some of the joint proprietors title under section 11, bengal revenue sales act, 1859, (arecorded in respect of a share of 5 annas in the touzi. salim khan himself owned 0-5-4.....
Judgment:

Panigrahi, J.

1. The suit culminating in this appeal was instituted by respondents 1 to 4 for a declaration that appellants 1 and 2 have acquired no title to the suit property by virtue of their purchase of the same, from the auction, purchasers at a revenue sale, and for confirmation, of possession, or, in alternative, for recovery of possession. The salient facts are simple and are undisputed. Touzi No. 4011 in Mouza Berhampur, in Cuttack District, bearing a Sadar Jema of Rs. 3/9/0, was recorded in the name of one Salim Khan and seven others in the Collector's registers. The plaintiffs' predecessors-in-title were some of the joint proprietors title under Section 11, Bengal Revenue Sales Act, 1859, (Arecorded in respect of a share of 5 annas in the touzi. Salim Khan himself owned 0-5-4 share, Sujat Khan 0-0-4 share, and Naliman Bibi and Mazahar Khan together 0-5-4 share. In the year 1932, a separate account was opened in the name of the plaintiffs' predecessors-in-ct XI of 1859), and the revenue of the touzi was distributed over two separate touzis, namely touzi No. 4011/1 allotted to the plaintiffs' predecessors-in-title, and Touzi No. 4011/R allotted to the rest of the joint proprietors whose successors-in-interest are the pro forma defendants 3 and 4. In the year 1939, the separate account was closed by the Collector and thereafter the touzi stood recorded, as before, jointly in the names of several proprietors as touzi No. 4011. On 10-4-1943 the estate was sold in public auction for arrears of land-revenue for the November Kist of 1942 and was purchased by one Gopinath Mohanty. Gopinath Mohanty sold the property a few months later to one Radhakrushna Kedia by a registered sale-deed, dated 16-6-1943 (Ex. B.). In 1945, defendant No. 1 purchased the same property from Radhakrushna Kedia, and a few months later he sold eight annas interest out of the same to defendant No. 2. Defendants 1 and 2 have thus, through mesne conveyances, acquired 16 annas interest in the estate and are in possession. A few months after the purchase by defendant No. 2, the plaintiffs raised the present suit for a declaration that defendants 1 and 2 have acquired no interest in the estate through their purchases, and that the revenue sale held by the Collector was illegal as there was, in fact, no arrear of rent due, and as the requisite notices were not served on the plaintiffs. They also averred that they had no notice of the closure of the separate accounts by the Collector in the year 1939 and that, consequently, the Collector had no jurisdiction to close the said accounts' without their knowledge. The contesting defendants traversed these allegations and pleaded that the plaintiffs were aware of the closure of the separate accounts, as well as of the revenue sale held by the Collector. The trial Court dismissed the plaintiffs' suit holding that the notices under the Act were duly served, that the revenue sale was not vitiated by any illegality or irregularity and that, consequently, the Civil Court had no jurisdiction to try the suit. Against this judgment the plaintiffs appealed to the Subordinate Judge. The learned Subordinate Judge upheld their contentions and allowed the appeal, reversing the decree of the trial Court. The purchaser defendants 1 and 2 have, therefore, come up in second appeal to this Court.

2. At the outset I should like to point out that there is an utter economy of material on the side of the plaintiffs in support of the allegations made by them. The first plaintiff was the sale witness examined on behalf of the plaintiffs. A few documents were also filed which, however, do not throw much light. The trial Court, as well as the lower appellate Court had, therefore, to rely upon presumptions, and upon certain general principles of law in determining the issues raised by the parties. We have ourselves felt, in this Court, that the plaintiffs' case suffers from paucity of material and tried, to obtain relevant information from the records available in the Collectorate. Unfortunately, on a reference to the Collectorate we were told that no papers relating to the closing of the separate accounts or of the revenue sale, are now in existence as they had been destroyed under the rules. Another point that I should like to mention is that the contentions now urged before us were not raised by the plaintiffs in the pleadings though it is possible that they were raised in the lower Courts during the stage of arguments.

3. The main contention urged on behalf of the plaintiffs through their learned counsel, Mr. M.S. Rao, is that the Collector who directed the closure of the separate accounts had no jurisdiction to do so, as the facts which would have given him jurisdiction to close the accounts did not exist at the time. Secondly, it is urged that it was upon the party who relied upon the auction sale to prove that those facts which would give the Collector jurisdiction did exist, and since the defendants have failed in this respect the plaintiffs were entitled to a decree as prayed for. The latter contention appears to have prevailed with the learned Subordinate Judge.

4. Before, however, I proceed to examine the correctness of the above propositions it is necessary to see whether it would be relevant to consider the propriety of the Collector's action in closing the accounts -- unless we could set aside the revenue sale ourselves. The revenue sale in question was held under the provisions of Act XI of 1859 which is an Act laying down the law relating to the sale of land for arrears of revenue. Section 33 of the Act bars the jurisdiction of the Civil Courts in suits to annul sales. It says

'No sale for arrears of revenue........shall beannulled by a Court of Justice, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; and no such sale shall be annulled upon such ground, unless such ground shall have been declared and specified in an appeal made to the Commissioner, under Rule 2 of the Bengal Land Revenue Sales Act of 1868; and no suit to annula sale made under this Act shall be received by any Court of Justice, unless it shall be instituted within one year from the date of the sale becoming final and conclusive as provided in Section 27 of this Act.'

The proviso to this section confers on any person who considers himself wronged by an act or omission connected with a sale under this Act, a remedy by way of personal action for damages against the person by whose act or omission he considers himself to have been wronged. The Bengal Land Revenue Sales Act (Act VII of 1868) which is to be read with, and taken as a part of Act XI of 1859, further provides that very certificate of sale given to a purchaser at a revenue sale held under Act XI of 1859, shall be conclusive evidence in favour of such purchaser, and of every person claiming, under him, that all notices in or by this Act or by the said Act XI of 1859 required to be served or posted have been duly served and posted. That Act further provides that the title of the purchaser shall not be impeached or affected by reason of any infirmity or irregularity as regards the serving or posting of any notice in the proceedings under which the sale was held. It appears from Ex. F. a copy of the order in Revenue Appeal No. 90 of 1943-44, that an appeal was preferred complaining against the revenue sale and that it was dismissed by the Revenue Commissioner on the ground of its being barred by time. It does not appear that the ground, now taken before us, was declared and specified in the appeal made to the Revenue Commissioner as required under Section 33 of Act XI of 1859. The appeal was disposed of on 15-5-1944 and the present suit was instituted on 27-6-45, more than a year after the sale had become 'final and conclusive' as provided in Section 27 of the Act. The suit is, therefore, 'prima facie' incompetent and is liable to be dismissed on the ground of limitation as the Trial Court has held. The plaintiffs had this difficulty staring them in the face and have attempted to challenge the revenue sale on the ground that there was no arrear of revenue due, in fact, on the date of the sale. This is averred in paragraphs 9 and 10 of the plaint. Paragraph 10 reads as follows:

'That the Collector of Cuttack had no jurisdiction to close the separate accounts of touzi No. 4011 without the knowledge of the plaintiffs, and there being no arrears the said Collector had no jurisdiction to sell the disputed touzi No. 4011.'

But both the Courts below have found that there was, in fact, arrear of revenue due on the date of the sale and this finding has not been challenged before us. In these circumstances, if the Collector directed a sale, in order to realize arrear of revenue and after serving notices on the then recorded proprietors, that sale must be held good. Entries in the books of the Collectorate will be presumed to be correct under Section 114(e), Evidence Act, and such books must be examined in order to arrive at a finding as to whether there were arrears of revenue or not. See 'Radhagobind Deb v. Girija Prasanna', 35 Cal W N 912. Reference may also be made to the observations of the Judicial Committee in 'Mohammad Sulaiman v. Birendra', 50 Cal 243 to the effect that the onus of proving that there has been an irregularity or illegality in the service of notice or posting rests on the person who seeks to have a sale for arrears of revenue set aside. Even an omission to serve notice can hardly render a sale for arrears of revenue liable to be annulled under Section 33 of the Act especially after the issue of a certificate of title to the purchaser -- 'Shorattan v. Nethlal', 30 Cal 1. Notices are served in the -ordinary way through officers of the revenue Court and the presumption underSection 114(e), Evidence Act, would arise in respect of such notices until the contrary was proved. The non-payment of arrears might be due to the carelessness of the proprietors, but the civil Court has no power to interfere with a sale on the ground of hardship. In 'Sheik Mohammad v. Jadunandan', 10 Cal W N 137 it was held that the onus is on the person who seeks to nave the sale set aside, to establish that the requirements of the statute had not been compiled with by the Collector. It was further held, that it is not open to a Civil Court to examine the reasons of an order of a Collector, purporting to be made under the Revenue Sales Law, and to hold that the Collector ought to have made a different order. I would refer in this connection to the observations of the Judicial Committee in 'Gobindlal v. Ranjan Misra', 21 Cal 70.

'Sales for arrears of revenue are of constant occurrence; anything which impairs the security of purchasers at those sales tends to lower the price of the estates put up for sale. It is therefore of the utmost importance in the interest of the revenue-paying population of India that all questions that can arise as to the validity of a sale for arrears of revenue should be determined speedily, and that when the sale has once been confirmed by the Commissioner, the purchaser should not be exposed to the danger of having his sale set aside on new grounds.'

The plaintiffs have failed to satisfy me that the grounds taken by them in paragraphs 9 and 10 of the plaint were 'specifically declared' in the appeal petition to the Revenue Commissioner. A perusal of Ex. F gives me the impression that the only ground taken there was that the appellant could not get leave to look after the affairs of his property as he was in military service. The plaintiffs have not attempted to substantiate any of the allegations made by them in attacking the validity of the revenue sale and it must, therefore, be held that it was a valid sale.

5. If the sale is to stand under the provisions of Act XI of 1859, can it be said that it may be open to attack on grounds other than those mentioned in that Act? Section 33 lays down emphatically and categorically that

'No sale shall be annulled by a Court of Justice, except upon the ground of its having been made contrary to the provisions of 'this' Act.'

The plaintiffs' complaint that the closure of the separate account was without jurisdiction is not covered by the provisions of Act XI of 1859 and there is therefore no question of the sale having been contrary to the provisions of Act XI of 1859. The complaint relates to Registration of Estates which is regulated by another Act, namely the Land Registration Act (Act VII of 1876). That Act provides for the preparation and maintenance of registers for revenue-paying estates, and for the proprietors and managers thereof, and does not regulate the sale of estates. Part II of the Act lays down what registers are to be kept by the Collector. Part III prescribes rules for the preparation and maintenance of such registers. Section 28 vests power upon the Collector to make changes from time to time, after making such enquiries as may be necessary. Section 30-D lays an obligation on every proprietor and manager of an estate to furnish information required by the Collector for the purpose of making, preparing, or correcting any entry of the particulars specified in the Act. Section 31 provides a penalty for failure to furnish such information. Section 32 provides that a register may be altered when a Civil Court grants a decree confirming any transfer of proprietary right. Part IV of the Act deals with registrationand mutation of names of proprietors. Section 42 lays down that every person succeeding to any proprietary right in estates, whether by purchase, inheritance, gift, or otherwise, and every person assuming charge of any interest therein as manager, shall, within six months from the date of such transfer or assumption of charge, make an application to the Collector of the district for registration of his name and recording the extent of his interest as the proprietor or manager. The sectionswhich follow prescribe the procedure as to how the application is to be presented and registration is to be done. If the application is disputed by any person making a conflicting claim, the Collector may either summarily determine the right to possession of the same, or, if the dispute involves a question of title, refer the matter to a Civil Court. Part V of the Act deals with the opening of separate accounts in respect of shares. Section 69 lays down that no separate account shall be opened unless the share of the applicant corresponds with the character and extent of interest in the estate in I respect of which such applicant is recorded as proprietor or manager. Section 72 provides for the closing of separate accounts, and any proprietor or manager, may apply to the Collector for the closing of a separate account if such share no longer corresponds to the extent of the interest held by any recorded proprietor or jointly by two or more recorded proprietors. The Collector, after the publication of the application, may close the separate account if no objection is preferred. If however there is any objection, the Collector shall refer the parties to the Civil Court and shall suspend proceedings until the question at issue is judicially determined. But the Collector is not left at the mercy of the proprietors. By Section 74-A he is given the power to close a separate account otherwise than upon an application. That Section reads as follows:

'Notwithstanding anything contained in the foregoing sections, if the Collector becomes aware, otherwise than after receipt of an application under Section 72, that any separate account opened under Section 10 or Section 11 of the Bengal Land Revenue Sales Act of 1859 or under Section 70 or Section 72 of this Act, in respect of any estate does not represent existing facts, he may, after service of notice on the recorded proprietor in the manner prescribed by Section 50, and after hearing any objection which may be preferred, close the account.'

On behalf of the plaintiffs a reference has been made to this section and it is argued that the Collector would have jurisdiction to close a separate account if, and 'only if, that separate account does not represent 'existing facts'. As a corollary to this, it is further argued that the party who relies for his title upon the Collector's order should satisfy the Court that the separate account did not represent facts as they existed at the time the Collector took action. In the opinion of the trial Court it was for the Collector alone to decide whether the account represented existing facts or not,and not for the Civil Court; and that the Collector had the jurisdiction to decide, rightly or wrongly, about the correctness or otherwise of existing facts. The appellate Court took contrary view and held that, unless it be proved to the satisfaction of the Civil Court that the separate account did not represent existing facts, the Collector's action would suffer from an initial lack of jurisdiction.

6. In examining which of the above two rival interpretations is correct, it has to be remembered that the plaintiffs and the pro forma defendants are not the identical persons who were recorded in the Khewats. Exts. 4 and 4-A. (After examining the documentary and oral evidence his Lordshipconcluded:) In such circumstances, it is impossible for any Court to presume either that the plaintiffs must have been referred to in Ext. 2 or that a separate account was opened in their names. Having regard to this state of affairs, it will not be a violent presumption to make that the Collector has before him sufficient materials to satisfy himself that the existing facts in 1939 did not represent the conditions which led to the opening of the account. According to the evidence, Mr. Syed, father of plaintiff No. 2, died sometime in 1937 and the estate of his son. Mir Safiquddin was not represented in the Collector's registers through any guardian or manager. This fact alone, apart from any other facts, would be sufficient for a finding that the separate account did not represent existing facts in 1939.

7. Even if it were necessary to hold, as learned counsel for the respondents has urged, that the defendants should prove that the separate account did not represent the existing facts in order that the Collector may get jurisdiction under Section 74-A, I should hold that the defendants have discharged the onus in this case. But I do not think that that is the law. The plaintiffs who invoke the aid of law must prove their case and are bound to show, in the first instance, at least a prima facie case. If they leave it in a fog the Court will not assist them. All that Section 74-A requires is the awareness of the Collector that certain facts do not exist. If the Collector becomes cognisant or sensible of a change of conditions, he can immediately take action under Section 74-A 'suo motu'. He is not required to come to a decision or make an enquiry before taking action under Section 74-A. Without making any such enquiry or investigation, the Collector may become aware that an account does not represent existing facts in several ways. Chapter V of the rules framed by the Board of Revenue, under Section 88 of the Act, lays down the rules whereby the accuracy of the registration can be improved by executive action. Estates may be transferred by private negotiation in which case the sub-Registrars are required to submit to the Collector monthly lists of all such transfers. In cases where suits are filed for declaration of title and decrees obtained or a sale of estates takes place in Civil Courts, the Civil Courts are directed by High Court Circulars to give direct notice to the Collector. Rules 6 to 8 show how the Collector may get information of changes in the proprietorship of estates. Rule 9 provides for cases which are not covered by the foregoing rules. Such cases, according to Rule 9 'can only be met by vigorous executive action'. Again, the names of the actual proprietors of an estate can be ascertained by a reference to road cess returns, cess valuation returns, settlement proceedings, partition cases, and appeals under Act XI of 1859. The results obtained from these sources are to be compared with the entries in the register kept under the Land Registration Act. Besides these, the Subdivisional Officer, the Sub-Deputy Collector, and the Kanungo are required to report at once to the Collector the occurrence of any change in the proprietary condition of an estate. Rule 11 specifically lays down that 'it is a duty incumbent upon the Collectors to take vigorous and spontaneous action in all cases which come to their notice'. It is by these means that the Collector obtains information about the proprietors and the condition of their estates. To my mind, all that Section 74-A does is, more or less, to give legal sanction to the executive action that the Collector may take in closing a separate account. It does not lay down that he must set out the facts which induced his action, nor that he should give his reasons for so doing. It is his own responsibility that the registers should be kept uptodate, in order that the realization of Government revenue may be secure. I am therefore, unable to accede to this part of Mr. Rao's argument.

8. It was next contended that if the existing facts were in accordance with the separate account, the Collector would have no jurisdiction to close it. There appears to be some confusion of thinking in this connection. There is a well-marked distinction between the existence of jurisdiction and the exercise of that jurisdiction. The right of a tribunal of limited jurisdiction to exercise that jurisdiction may depend on certain conditions. Those conditions may be founded either on the character and constitution of the tribunal, or the nature of the subject-matter of the enquiry, or upon some proceedings which are essential preliminaries to the enquiry, or upon facts or a fact to be adjudicated upon in the course of an enquiry -- See 'Colonial Bank of Australasia v. Willan', (1874) L R 5 P. C. 417. Sir James Colvile pointed out the distinction as follows:

'Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that a Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that having general jurisdiction over the subject-matter he properly entered upon the enquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the functions of a Court of Appeal, and the power to re-try a question which the Judge was competent to decide.'

It often happens that the Legislature creates special tribunals vested with exclusive power relating to particular subject-matters, as for instance the rent Courts being incompetent to decide questions of title, or the civil Court being incompetent to try suits for rent. There may also be limitations imposed on a Court's jurisdiction to take cognisance of a dispute unless some preliminary proceedings are complied with like, for instance, a notice under Section 80, Civil P. C., before a particular class of suits can be entertained, or a sanction from a competent authority before a prosecution can be initiated. Section 74-A clearly does not impose any such limitations and brings it within the fourth category mentioned above. The Collector has to be aware of a certain fact and it is for him to be satisfied whether that fact represents the correctness of the register or not . It is not for a Court of Justice to sit in appeal and say whether he had materials before him or not to justify his act. If Section 74-A had said that 'the Collector could take action if the separate account.. .......... does not represent existing facts' Ishould be willing to concede that the respondents' contention would have some force. But the section, as it reads, does not prescribe any such prerequisite condition; a necessary preliminary to the Collector's jurisdiction is his own awareness, and that is a subjective test which no Court of Justice can examine. The words 'becomes aware' describe the provenance of the authority, not its accuracy in point of law. In other words, the real test is not the correctness of the information, but the awareness of the Collector. It was argued that the Collector cannot give himself jurisdiction by a wrong decision on the facts. That is a proposition which is good enough for certain purposes, but its application may often be misleading. I mayquota the observations of Lord Esher. M. R. in 'Queen v. Commissioners for Special Purposes of the Income-tax', (1888) 21 Q B D 313 at p. 319:

'The Legislature may, in effect, say that if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them whether there shall be any appeal from their decision, for otherwise there will be none'.

Under the first category come instances like those reported in 'Lakshman Singh v. Natha Singh', ILR (1941) 22 Lah 71 where the question was whether money due under an usufructuary mortgage was a 'debt' within the meaning of the Punjab Relief of indebtedness Act; 'Gauba v. The Punjab Cotton Press Co., Ltd.', AIR (28) 1941 Lah 234 were found to exceed the pecuniary limits of the Debt Conciliation Board; and 'S. K. Shaw & Bros. v. Brij Raj Krishna', AIR (36) 1949 Pat 474, where an irregular payment was held not to come within the term 'non-payment' which alone would give jurisdiction to the tribunal. An instance of an Act in contravention of the statute is afforded by the case of the Municipal Committee, Montgomery v. Master Sant Singh', AIR (27) 1940 Lah 377. Typical instances falling within the latter category are those reported in 'Malkarjan v. Narahari', 27 Ind App 216 and 'Hridayanath v. Ramchandra', 48 Cal 138. The present case is not one where there is an initial lack of jurisdiction, nor where the limit of the jurisdiction is indicated to extend only upto a certain point, nor is its exercise dependent on a pre-requisite condition. The Collector while acting under Section 74-A is not discharging any judicial or quasi-judicial function. He is directed to take executive action to safeguard the public revenue and his responsibility commences when he becomes aware of certain conditions. He is the only judge of whether the conditions justify the closing of the separate account. He may have acted wrongly, even rashly, but nonetheless within the limits of his power. The Civil Court cannot sit as a Court of Appeal against his order and give directions as to how the register should be kept. I am, therefore, unable to accede to the argument that the Collector did not have jurisdiction to order a closure of the separate account.

9. The next point that requires to be examined is whether it is for the defendants to show that the existing facts did not correspond with the separate account, assuming that the determination of this question alone would confer jurisdiction on the Collector. The appellants relied upon Ext. D, a copy of the order sheet in the miscellaneous case started by the Collector, to show that the provisions of Section 74-A were complied with. Mr. Rao invited our attention to certain cases in support of his proposition that there is no presumption under Section 114(e), Evidence Act, that the notice was duly served, and that Ext. D relied on by the defendants does not discharge the onus resting upon them. He relied upon a dictum of Das J.in the case reported in 'Hitnarain v. Rambarai', 7 Pat 733 that the order sheet filed in that case was 'merely a record of the opinion of the Collector which was not binding upon the Civil Court'. The point for decision in that case was whether a notice under Section 167 of the Bengal Tenancy Act had been validly served. As the learned Judge points out, the annulment of the incumbrance commences from the date when the notice is served upon the incumbrancer under Section 167, and not from the date on which the Collector issues the notice. It was, therefore, of the utmost importance, in a case like that, that the service of notice should be proved by tangible evidence. In such circumstances his Lordship was justified in observing that the order sheet filed in that case was merely a record of what transpired before the Collector, and did not prove the service of notice. The Calcutta cases referred in that judgment are all similar cases under Section 167, Bengal Tenancy Act, and those cases are distinguishable from the present case, because here Section 74-A provides that the notice is to be served in accordance with Section 50 of the Act. Section 50 prescribes that the notice may be served by delivering it at the usual place of abode of such person or to some adult male member of his family, or in case it cannot be so served, by posting such a copy upon a conspicuous part of the usual or last known place of abode of such person. Paragraph 2 of the section says that

'in case such notice cannot be served in any of the ways hereinbefore mentioned, it shall be served in such a way as the Collector issuing such notice may direct'.

I should like to point out that the same learned Judge in a later case 'Doma Bhagat v. Ramanand Singh', 8 Pat 95 at p. 102, relied upon the order sheet of the Collector in proof of compliance with the procedure indicated in Section 70, Land Registration Act. He observed:

'The order sheet of the Collector shows that the procedure indicated in Section 70 was, in fact, adopted by him'.

The presumption raised under Section 114(e), Evidence Act, is a presumption of fact which can be made in relation to the surrounding circumstances of each case. In none of the cases cited at the Bar was there delay of six years, as in this case, after the impugned official act took place. If the records have been destroyed and if no other evidence is available, I fail to see why, if other circumstances justify it, such a presumption cannot be made. In 'Rajah Muhesh Narain v. Kishanund', 9 Moo Ind App 324 at p. 339, the Judicial Committee had to deal with a case similar to the present. The observations made by their Lordships in that case may, with benefit, be quoted:

'Now, if it be taken that the burden of proof in respect of these notices can be properly cast on the respondent it certainly does not appear to their Lordships that in respect of all of them it is clearly made out that they were duly given; but they are of opinion that it cannot be so cast, considering how he claims, at what distance of time the objection is made, and the extreme difficulty, if not impossibility, of satisfactorily proving a fact of this nature under such circumstances as are before them. In this country, it is in many cases required by statute that notices should be affixed on the walls or doors of Courts, or in other specified places, and for certain specified times, in order to give jurisdiction to Magistrates to do certain acts which are speedily to follow. In such cases there is no injustice in calling upon the party, who moves the Magistrates to exercise their statutory jurisdiction, to prove that these requirements have been complied with. But it would be monstrous to make the title to land in a purchaser depend, years after it has accrued and possession has been enjoyed under it, on his proving the same affirmatively. In the nature of the thing all traces of the evidence may be expected, as to some of the particulars, to perish in a short time; in others, where the document ought in strictness to be filed, it is but too common for the officer, whose duty it will be to file it, to be neglectful'.

In that case also the respondent had acquired title from an auction-purchaser at a Court sale and the plaintiff sought a reversal of the sale on the ground of irregularity, nine years after the sale took place. Their Lordships observed:

'What safety could there be, except by the statute of Limitations, for any man's title, where a judicial sale had taken place, if he were bound to satisfy himself of the decree-holder's compliance with every one of the many formalities prescribed by law for the conduct of it?'

In 'Madhusudan v. Mt. Chandravati', 21 Cal W N p. 897: 1917 Mad W N 518 their Lordships held that when the records of the service of proclamation were destroyed by fire there was a prima facie presumption that the official acts were duly carried out. See also 'J.C. Galstaun v. Sayyid Mohammad Hussain', 36 Cal W N 242.

10. In discussing Section 74-A, it appears to me that the Collector is under no obligation to accept any objection that may be raised by any proprietor. The section lays down that he is to 'hear' the objection and close the account. The language of this section stands in sharp contrast to that employed in Section 74. In the case of an application to close the account made by one proprietor, the Collector is bound to refer the parties to the Civil Court if an objection is raised to the closing of the account, but he is under no such obligation while acting under Section 74-A; nor is he bound to hold any enquiry except to hear the objections. Here, again, the language used is different from that employed in Section 28 which says that the objections 'shall be duly 'considered'' before making a change in the register. The power to remove the name of a proprietor from the register is conferred by Section 29 and the language used here is closely similar to that in Section 74-A. Section 29 says:

'Whenever it shall 'appear' to the Collector, in the course of an enquiry...... the Collector mayorder the name of such person to be struck out'

Section 35 deals with revenue-free estates and the necessity of an 'enquiry' is laid down. If the Legislature had used an expression like 'consider', 'decide' or 'inquire', it may be reasonable to argue that he failed in his duty if he did not hear both sides and weigh the evidence. Where, for instance, the word 'adjudicate' is used in the Sea Customs Act and the officer does not give notice to the aggrieved party to decide a point against him, his action may be questioned in Court in 'Sooraj Mull Nagarmull v. Assistant Collector of Customs', 55 Cal W N 528. Section 74-A casts no such duty on the Collector. It therefore appears to me clear that in cases of removal of a proprietor's name or in closing a separate account, the Collector is given a free hand to effect any changes provided the realization of public revenue does not suffer. Against the order of the Collector in such cases the only provision made under the Act is an appeal to the Commissioner. The Act does not explicitly, or by necessary implication, confer any power on the Civil Court to order that a particular proprietor's name should be registered, or to direct the Collector to act in a particular way in maintaining his register. As laid down by the Judicial Committee in 'Chhattrapat Singh v. Maharaj Bahadur', 12 Cal W N 441:

'Civil Court is not competent to direct the action of the revenue authorities under the Land Registration Act, and a suit brought by the plaintiff with the object of obtaining an order from the Court which would bring about a reconsideration of the order passed by the revenue authorities so as to obtain the registration of the plaintiff's name, as a co-trustee, is not maintainable'.

It therefore appears to me that, even if the plaintiffs had been aware of the action taken by the Collector under Section 74-A, they would have had no relief in the Civil Court against the Collector's order directing the closure of the separate accounts. The case reported in 'Kirti Mohaldar v. Ramjan Mohaldur', 10 Cal 523, is authority for the position that a Civil Court has no power to set aside an order passed under the Land Registration Act. The plaintiffs could easily have ascertained how the Register stood after 1939, and prevented the estate from falling into arrears. Their title to property was not affected by the closing of the account and the order of the Collector cannot be the subject of judicial review at this stage. No doubt, under Section 89, a person who may be aggrieved may obtain a declaration of his title but there is no provision which would entitle the civil Court to direct the Collector to register a particular proprietor's name. In the present case, even if we are to hold that the suit is maintainable for a declaration simpliciter, the plaintiffs should nonetheless fail as they have lost title to property in dispute by reason of the revenue auction sale whose validity cannot be impugned for the reasons given by me; nor can possession be restored so long as the sale stands.

11. The last contention, though not of much importance, is that the notice contemplated under Section 74-A was irregularly served in this case. This contention is founded upon the entries in the order sheet. It appears from O. No. 5, dated 30-6-39, that notices were served upon all the proprietors except one as the guardian of the minor was reported tobe dead. The order says:

'It is reported by the peon that the minor lives with his step-brother, Mir Nazimuddin, who isnot recorded in the D-Register as his guardian'.

The matter was referred to the Collector who appointed the step-brother as the guardian and a notice was then taken out in the name of that guardian. Section 74-A requires service of notice on the recorded proprietor in the manner prescribed by Section 50. Mir Nazimuddin had not been recorded as the registered proprietor and the Collector was therefore competent to appoint him as the manager as laid down in Sub-section (6) of Section 3. Section 50, as I have already pointed out, empowers the Collector to prescribe the mode of service when the other modes laid down in the section have proved ineffective. The order sheet shows that the notice on the manager was duly published, it may well be that the Collector directed that the notice should be served by publication, either in the Collector's officer or in the officer of the Sub-divisionalOfficer. In any event, Section 51 of the Act would cure any such irregularity as is complained of.

12. In the result, I must hold that the plaintiffs have failed to prove that a separate account had been opened in their names or that the Collector acted without jurisdiction in closing the separate account. The revenue auction sale is not open to challenge at the instance of the plaintiffs, and their suit in so far as it seeks a reversal of that sale mist fail. Their prayer for declaration and possession also must be rejected so long as the sale stands. The appeal is accordingly allowed, the judgment of the learned Subordinate Judge is set aside and that of the learned Munsif is restored.The plaintiffs' suit shall stand dismissed with coststhroughout.

Jagannadhadas, J.

13. I agree with my learned brother that the appeal should be allowed and that the plaintiffs' suit stand dismissed with costs throughout but I would prefer to give my own reasons for the same.

14. It is unnecessary to recapitulate the facts which have been lucidly stated in my learned brother's judgment. The plaintiffs -- it is not disputed -- are entitled to a share in Touzi No. 4011 in mouza Berhampur, which at one time had a separate account opened for it, as Touzi No. 4011(1) and which has since been cancelled and closed. They bring this suit for a declaration that their ownership of that separated share of the Touzi is not in any way affected by the revenue sale of the entire Touzi No. 4011 on 10-4-43 as evidenced by the sale-certificate, Ext. A. This revenue sale was held on the footing that the separate account opened in respect of 4011/1 was validly cancelled and closed by the Collector in the year 1939. The case of the plaintiffs, therefore, involves an attack on the validity of the revenue sale of the entire Touzi on 10-4-43. But it is necessary to keep in mind that the distinction between the various grounds on which this sale is attacked. To the extent that the plaintiffs seek to attack the validity of the sale on the ground that the requisite notices in respect of that said were not served on the plaintiffs and that the plaintiffs had no knowledge of that sale, the objection is clearly barred under Section 33 of the Act 11 of 1859 (Bengal Land Revenue Sales Act). But the substance of the grievance of the plaintiffs is that the sale was without jurisdiction and not merely irregular for want of service of notices in the sale-proceedings. Their attack is on the two following grounds, Viz., (1) That there were no arrears of revenue due from them; (2) That the closure of the separate account by the Collector in 1939 was illegal. If these grounds can be substantiated, I have no doubt, that the plaintiffs would be perfectly entitled to maintain the suit and to get a declaration that the revenue sale, under which the contesting defendants claim, is void. I am not sure whether my learned brother in his judgment meant to lay down the contrary, but if it was so meant, I very respectfully disagree with that view. Section 33 is only a bar to 'annul' the sale on certain grounds. It is now well-settled that Section 33, Bengal Land Revenue Sales Act is no bar to a suit for declaration that a revenue sale is without jurisdiction and is a nullity, as this does not involve any relief by way of annulment. See 'Balkishen Das v. Simpson', 25 Cal 833. The only question in such cases is whether the grounds put forward as objections to the sale are such as to render the sale totally void.

15. The first of the above two grounds raising the question of the validity of the sale, Viz., that there were no arrears at the time and that therefore the sale is void, is a well established ground for invalidating a revenue-sale. But in the present case, it is without any substance. As I understand the plaintiffs' case, they do not suggest that there were no arrears of revenue in respect of the entire Touzi at the time of the sale thereof in 1943, and indeed ns pointed out by my learned brother, there is absolutely no proof of it. What all they seem to say is that so far as their own separated share is concerned, they have been paying up their share duly and regularly. But this would be irrelevant even if proved, provided that the cancellation of the separate account is valid.

16. Therefore the only substantial question in this case is whether the order of the Collectordated 6-9-39, closing the separate account of Touzi No. 4011/1 is valid and whether the sale now in question is valid, even if the closure of the separate account was illegal. Now a careful consideration of Sections 13 and 14, Bengal Land Revenue Sales Act, XI of 1859, shows that if the closure of the separate account is illegal, the sale in question would be void, and will not affect the plaintiffs' title to a share in the Touzi. Section 13 says:

'Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares, if the estate shall become liable to sale for arrears of revenue, the Collector or other officer as aforesaid 'in the first place shall put up to sale only that share' or those shares of the estate from which, according to the separate accounts, an arrear of revenue may be due.'

Section 14 provides the circumstances under which the entire estate may be sold notwithstanding that there is a separate account outstanding in the registers of the Collector and the arrear is only in respect of that separated share. These two sections, therefore, clearly make it imperative that where there is a separate account in respect of a share in the estate, that share of the estate must be put to sale, first, for the arrears thereof. The entire estate cannot be put up to sale in the first instance. If the circumstances authorising the sale of the entire Touzi exist, even then, the entire Touzi cannot be put to sale straightway, but the other sharers who are not in arrears must be given the right of purchase for the arrears, as prescribed in Section 14. Thus, not only had the plaintiffs while their separate account was outstanding, the right to have their share alone sold first for any arrears due by them, but what is more important, they had also the right of purchase of the entire Touzi for any arrears due by other sharers, before the Touzi could be brought to sale, if they were themselves not in default, but the sale was occasioned by the default of other co-sharers. If therefore, the separate account of the plaintiffs' share in the Touzi has been illegally closed, the revenue sale now in question would be contrary to Sections 13 and 14, Bengal Land Revenue Sales Act and would be illegal. It, therefore, follows that if the illegal closure of the separate account is established, it would be a valid ground for holding that the revenue sale in 1943 is invalid at least in so far as it affects the share of the plaintiffs. Thus the question has to be considered whether the closure of the separate account was illegal as the plaintiffs allege.

17. The attack on the legality of the closure has been based in the Courts below on two grounds: (1) There is no evidence to show that at the time when the Collector ordered the closure, the separate account as opened, in the books of the Collector had ceased to represent the existing facts; (2) That there was no service of notices on the plaintiffs in connection with the proceedings for the closure of the separate accounts as provided under Section 74-A, Land Registration Act, in exercise of the powers under which, the account is said to have been closed by the Collector.

18. The second of these grounds may be dealt with first. Section 74-A provides that before closing the separate account the Collector should serve notices on the recorded proprietor and hear his objections, if any, and it is further provided that notice is to be in the manner provided in Section 50 of that Act. Ex. D which is the order-sheet relating to the proceedings for closure of the account in this case, has been relied on by the contesting defendants to show that in fact notices have been served as prescribed by law. The learned Munsif accepted this contention relying on thepresumption arising under Section 114, Evidence Act. On appeal, however, the learned subordinate Judge was not prepared to accept the factum of service as having been established. He pointed out, relying on 'AIR (15) 1928 Pat 459, that the presumption under Section 114 applies only to the regularity of the service when the factum of service itself is made out, but that it does not supply proof as to the factum of service. With respect, I am not sure how far this distinction is correct. I am unable to see why a record of the factum of service in official proceedings properly made showing that there has been service of notices, cannot be treated as prima facie proof of the service itself, whereas in the present case, on account of lapse of time, direct proof of that service may not be available. See 'Manindra Chandra v. Gopi Ballav', 45 Cal W N 44 at p. 47, where an order dated 30-11-33 was held to be sufficient proof of service. The case in AIR (15) 192S Pat 459, is one relating to service of no aces in respect of annulment of encumbrances under Section 167, Bengal Tenancy Act, and the question as to the proof of factum of service appears to have arisen within a short time after the alleged service of notice. Different considerations may apply to such cases. However that may be and even on the footing that the order-sheet Ex. D is prima facie proof of the service of notices, there is no reason why the same order-sheet not be relied upon (if it so appears) as showing bad service notwithstanding the opinion of the Collector in the order-sheet, express or implied, that it was due service, As stated in 'AIR (15) 1928 Pat 459', the opinion of the Collector is not binding on the Civil Court. In the present case, a perusal of the order-sheet shows there has been no service on the minor concerned in the case through the guardian and that notices in the last stage were only published. Publication of the notices is not one of the modes of service prescribed by Section 50, Land Registration Act, but is a mode prescribed only, for closure of account, under Section 73, Land Registration Act, taken with Section 10 of Act XI of 1859. There is therefore room for the argument that the notices required under Section 74-A, Land Registration Act, have not been duly served, at least on one of the concerned persons at the time, a minor. That, however, is not shown to be sufficient to invalidate the order for cancellation of the separate account which was made under Section 74-A and to be anything more than an irregularity in the mode of service. As already pointed out the service of notice under Section 74-A is to be in the manner prescribed under Section 50 of the Act. Now Section 51 says as follows:

'No irregularity or omission in the publication or service of notice as required by the three preceding sections shall affect the validity of 'any proceedings under this Act', unless it is proved to the satisfaction of the Collector that some material injury was caused by such irregularity or omission'.

This appears to my mind, to be a complete answer to the plaintiffs' contention in this behalf. Assuming that there was some omission or irregularity in the service of notices required under Section 74-A, it has not been shown in this case and it is not the case of the plaintiffs that that irregularity or omission was directly responsible for the injury complained of in the case, viz., the sale of the Touzi in 1943, which has been impugned. I am, therefore, satisfied that the defect, if any, in this case as regards the service of notice relating to the closure proceedings is not made out to be such as would invalidate the order for closure.

19. The next ground of attack against the validity of the closure remains to be considered and it is this, viz., that there is nothing to show that there were facts at the time of the closure whichwould have given jurisdiction to the Collector to close the account. It may be mentioned that objection has been taken to the challenge of the Collector's order on this ground, since this ground has not been averred in the plaint. This, no doubt is so. But the matter has been fully gone into both in the trial Court and the appellate Court and the judgment of the trial Court shows that issues (1) and (3) have been taken to coyer this ground. No objection has been taken even in the memo of appeal to this Court that this ground is not open and that the appellants were prejudiced. To satisfy ourselves, however, we attempted to obtain the records relating to the closure of the accounts in this case, but we have been informed that they were destroyed long ago. There could, therefore, have been no prejudice to either side by allowing this question to be canvassed. It is therefore, necessary to consider the scope of Section 74-A and the application thereof to the facts of this case.

20. Section 74-A, Land Registration Act, runs as follows:

'Notwithstanding anything contained in the foregoing sections, if the Collector becomes aware, otherwise than, after receipt of an application under Section 72, that any separate account opened under Section 10 or Section 11 of the Bengal Land-Revenue Sales Act, 1859, or under Section 70 or Section 72 of this Act, in respect of any estate does not represent existing facts, he may, after service of a notice on the recorded proprietor in the manner prescribed by Section 50, and after hearing any objection which may be preferred, close the account.'

This section gives the Collector the power to close a separate account opened under the provisions of Bengal Land Revenue Sales Act, 1859, or the Land Registration Act, 1876. The provisions for the opening of a separate account in respect of a share in a Touzi are meant to provide for the facility of payment of the separate share of the Government revenue direct to the Government and for a limited protection provided under Sections 13 and 14, Land Revenue Sales Act, against the revenue-sale affecting the separated share so long as the portion of the revenue due on that share is being punctually paid. Section 10 provides for such a separate account where a recorded sharer holds his share in common tenancy with others. Section 11 provides for the opening of a separate account where the share of a recorded sharer in a joint estate consists of a specific portion of the land. Section 70, Land Registration Act, provides for such a separate account being opened in respect of an undivided interest of a co-sharer though it may be in a specific portion of the Land in the estate, but not extending over the whole estate. In respect of these three provisions for the opening of a separate account, it is provided by Section 69, Land Registration Act, that no separate account shall be opened otherwise than for a share corresponding with the character and extent of interest in the estate in respect of which such applicant is recorded as proprietor or manager. Thus, it is clear that a separate account can be opened only in the name of the very person whose name is recorded as a sharer or proprietor and that the account is to be for a share whose character and extent corresponds with that which has been recorded in the Collector's register. Correspondence therefore between the name of the applicant-Co-sharer and the character and extent of the interest constituting his share in the estate on the one hand in the separate account to be opened and the record in the register on the 9ther, is an essential feature of the system of opening and maintaining separate accounts for co-sharers as provided. It is accordingly provided in Section 72 of the LandRegistration Act, that whenever any share in respect of which a separate account has been opened, shall no longer correspond with the character and extent of interest held in the estate by any one proprietor or manager, or jointly by two or more proprietors or managers, an application for closing that separate account may be submitted by certain concerned persons as specified in that section. Section 74-A provides, as already above-mentioned, for the power of the Collector to close the account suo motu and without any application by any of the interested persons. Now, it has been pointed out in 'Surendra Nath v. Abdul Jalil', AIR (29) 1942 Cal 354, that the jurisdiction of the Collector to open a separate account is absolutely dependent on the existence of the circumstances mentioned in Sections 10 and 11, Bengal Land Revenue Sales Act (and of Section 70 of the Land Registration Act), and it was consequently held in that case that if it was found that the circumstances authorising the Collector to open a separate account did not as a matter of fact exist, his jurisdiction to open the account will thereby be affected and the account opened will be without jurisdiction. It would appear to follow by parity of reasoning that if the Collector closed the separate account, validly opened, without the requisite facts which authorised him to close the account, such an order off closure is prima facie invalid. This view also derives support from the decision in 8 Pat 95: 9 Pat L T 661, though on the facts of that case the Collector's order impugned, was over which the Civil Court was held not to have jurisdiction to interfere.

21. Learned Counsel for the appellants urges that the view taken in AIR (29) 1942 Cal 354, cannot apply to the case of a closure of separate account 'in exercise of the suo motu' power of the Collector under Section 74-A, though it may be correct so far as either the opening of the separate accounts are concerned or the closure thereof under Section 72, Land Registration Act, on the application of a concerned party. For this argument, learned Counsel draws our attention, to certain differences in the relevant provisions. He points out that if an application is made under Sections 10 and 11, Bengal Land Revenue Sales Act, for the opening of a separate account and if any objection is taken to it by the concerned person, the Collector, cannot open the separate account, but must refer the parties to the Civil Court under Section 12, which has to decide whether the facts requisite to entitle the applicant to open separate account exist. It has also been pointed out that a similar provision for referring an objection to the Civil Court exists under Section 74, Land Registration Act, where an application is made by an interested person for the closure of the separate account. But it is urged that so far as Section 74-A relating to suo motu power of the Collector is concerned, the Collector, when he receives an objection to the closure, is not, bound to refer it to the Civil Court, but is specifically given the power to hear the objection and close the account. It has, therefore, been argued that so far as the exercise of the power under Section 74-A is concerned, the proof of the existence of the facts requisite for the exercise of the power does not invalidate the order. For this argument, the well-known distinction as regards the validity of acts of authorities with limited jurisdiction pointed out in 'Rex v. Commissioner of Taxes', (1888) 21 Q B D 313, followed in 'The King v. Bloomsbury Income-tax Commrs.', (1915) 3 KB 768, has been relied upon. See also (1874) L R 5 P C, 417. It has been therein laid down that the legislature may entrust an authority with jurisdiction to do a certain act including the power to determine the preliminary set of facts requisite for theexercise of that jurisdiction or it may vest in the authority the jurisdiction to do a particular act only if certain set of facts exist. It has been argued that it is only in the latter class of cases that a collateral attack in a separate civil suit on the validity of the order on the ground that the requisite set of facts for the exercise of the power does not exist, is permissible. It is said that in the former case, the validity of the act cannot be questioned, since the power to do the act includes also the power to determine the facts requisite for the doing of the act and that a wrong determination of those facts would be nothing more than a mistake in the lawful exercise of the jurisdiction. It is argued therefore that having regard to the terms of Section 74-A which gives the Collector the power to hear the objection which implies the power to determine the facts which justify the closure, the existence or non-existence of those facts cannot be canvassed in separate proceedings and that the Collector's order challenged as being without jurisdiction on that ground. It has also been suggested that what is requisite to give jurisdiction to the Collector in the present case under Section 74-A is not the existence or non-existence of certain facts, but his becoming aware that the separate account already opened in respect of any estate does not represent existing facts and that this awareness is a subjective factor which cannot properly be an issue for investigation in a separate civil suit.

22. So far as this last argument is concerned, I am inclined, with respect, to think that it is not correct. Awareness or knowledge is not such an exclusively subjective factor as not to be capable of investigation by the Civil Court in a separate proceeding unlike, for instance, the belief or the state of feeling of an individual. Existence or non-existence of the awareness or knowledge must obviously be based on some information or, perception, and the information or perception are purely objective factors. I do not, therefore, see any reason why the awareness of the Collector cannot be tried by a Civil Court in a separate suit. But I quite agree that there is considerable room for the argument that since the Collector having been given the power to decide the objectives, i.e., the existence of facts which would justify the closure of the account, his act cannot be challenged on the ground that the requisite facts do not exist. I am, however, inclined to think that the mere fact of his having the power under Section 74-A to decide the preliminary facts which give him jurisdiction is not necessarily conclusive to show that the validity of his order cannot be challenged on the ground of non-existence of those facts. This must depend on the scope and construction of Section 74-A in relation to the rest of the ACT. There is also a further well-known distinction, viz., whether the power to decide the preliminary facts which constitute the foundation of jurisdiction given to such an authority, is in the nature of an exclusive jurisdiction to decide those facts or merely the power to decide the facts in a summary manner and for the limited purpose of carrying on his function at the time. In the latter case, the validity of the act may still be open to challenge in a Civil Court. See in this connection the cases in 'Mahomed Nawaz Khan v. Bhagata Nand', AIR (25) 1938 P C 219 and AIR (38) 1949 Pat 474, which throw some light on the relevant considerations in considering those questions. This question has not been fully argued before us and I do not therefore propose to express any final opinion on the questions raised as to the construction of Section 74-A. All that I need say at the present moment is that with great respect, I have not been persuaded by the line of reasoning adopted in mylearned brother's judgment on this aspect of the case. I am prepared therefore, to proceed in this case on the assumption that if the facts requisite for giving the Collector the power to close the account are proved in a Civil Court not to exist, his order closing the account may be pronounced void. At this stage, I may notice that it has been contended that the power of the Collector to close the account suo motu can be exercised on facts different from those which give him the power to close the account under Section 72 on the application of an interested person. It has been pointed out that the wording of Section 72 required as a pre-requisite for the closure that the separate account already opened 'shall no longer correspond with character and extent of interest held in the estate' by the co-sharer, while under Section 74-A what all that is required is that any separate account opened 'does not represent existing facts.' It is argued that this difference in the language indicates that the power of the Collector under Section 74-A may be exercised with reference to a much larger range of facts. I am, however, not persuaded that this difference in language is meant to connote a larger amplitude of facts empowering the closure. It appears to me that the phrase 'does not represent existing facts' was only a compendious one intended to convey the same range of facts as is indicated in Section 72. This appears also to be the view of his Lordship Justice Das in 8 Pat 95 at p. 104, wherein he says:

'Section 74-A gives the same power to the Collector which Section 72 gives to a party and these sections apply only when the shares in respect of which a separate account has been opened, no longer correspond with the character and extent of interest held in the estate by any one proprietor or manager.'

As I have already pointed out above, the entire scheme of the provisions relating to opening and closure of separate accounts appears to be that facility should be provided for separate co-sharers for limited protection of their share so long as they pay their share of revenue regularly, but that the security of the revenue should not be impaired and for that purpose the correspondence between the separate account and the Land Registration records should be correctly maintained. I am, therefore, of the view that if it can be made out that the facts relating to the separate share of the plaintiffs were the same at the date of the closure as when the separate account was opened, i.e., as regards the names of the proprietors of that share the character and the extent thereof, the Collector's order in question therein, may be held to be invalid. The question, therefore, is whether on the facts this has been made out.

23. Before considering this with reference to the facts and evidence in the case, I may notice that a further argument has been raised as to the burden of proof regarding the existence or non-existence of the facts requisite to give the Collector jurisdiction under Section 74-A. But this aspect has also not been fully argued before us and I would prefer not to express any opinion on this matter also in this case, for I agree with my learned brother that the evidence sufficiently indicates that there may have been a change in the relevant facts between the date of the opening of the separate account in or about the year 1931 and the closure thereof in the year 1939. I may add that on this part of the case, I am indebted to my learned brother whose judgment sets out the relevant facts, not sufficiently elucidated before us in the course of the arguments.

24. There is absolutely no evidence adduced by the plaintiffs to show in what names the separateaccount for the five-anna-share in Touzi No. 4011 was first opened. Ex. 2 of 1931 which is a letter addressed to one Mir Sayed father of Mir Safiquddin, minor, by the Deputy Collector and A.S.O., L.R. Camp, III, Cuttack, which intimates the fact of a separate account being opened, does not show who are the persons in whose name the separate account was in fact opened. There is, therefore, no material to lay the foundation for the further argument that by the date of its closure in the year 1939, the same set of recant facts existed and that therefore the Collector's order of closure was illegal. (Alter dealing with the evidence his Lordship proceeded:) It was clearly obligatory on the part of every proprietor who succeeds to any interest in the property to get his name recorded to the extent of that interest noted in the Collector's registers. This appears from the provision of Part IV of the Land Registration Act of 187G. If the change occurred in between 1931 and 1939, there may well have been a case for the cancellation and closure of the separate account, on account of non-compliance with the provisions of Part IV. The plaintiffs, not having produced any material to show in whose name, in fact the separate account was opened or what changes in ownership took place, and whether those changes have been got noted in the Collector's registers, have failed in establishing the foundation for the argument that the Collector's order under Section 74-A is not based on the proper material and that it is illegal.

25. The suit must accordingly fail and theappeal must be allowed with costs throughout.


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