Pandrang Row, J.
1. This is an appeal from the decree of the District Judge, Bellary, dated 18th September 1933, confirming on appeal the decree of the Principal District Munsif of Bellary, dated 24th September 1931 in O.S. No. 513 of 1930. The suit was one for a declaration of the plaintiff's title to the plaint property. The plaintiff's case was that the sales of the plaint properties purported to have been held by the Revenue Officers for arrears of revenue in 1927 and 1928 were wholly void. The plaintiff is said to have been in jail at the time when the alleged sales took place and he was not personally aware of the circumstances attending the sales. It was expressly alleged in the plaint that even the procedure prescribed by the Board's standing order 45 was not followed and that there was no confirmation of the sale nor any certificate of sale issued as required by the Revenue Recovery Act under which the sales are said to have been conducted. The defendants were the subsequent purchasers from the Government, namely defendants 1 and 2, and the Secretary of State for India in Council, defendant 3. It was contended by defendant 3 that the plaintiff's statement that ho was undergoing imprisonment at the time of the revenue sales was not true and that he was actually on bail on the dates on which the sales were held. The substantial defence was that the sales were valid and binding on the plaintiff. There was also a contention that the suit was barred by limitation. The trial Court upheld both these contentions and dismissed the suit with costs. The lower appellate Court disagreed with the lower Court's finding on the question of limitation but dismissed the appeal on the merits, because it came to the conclusion that though no sale certificate had been issued, the sales had been confirmed. The present second appeal is by the plaintiff.
2. Both the Courts below appear to have proceeded on the assumption that the provisions of the Board's standing order 45, which relates to buying in for Government of property brought to sale for arrears of revenue, have the force of law. Only para. 1 of that Board's standing order was relied upon by the lower appellate Court and these provisions have certainly not the force of law. They merely contain executive instructions by the Board of Revenue to their subordinate officers prescribing the procedure to be adopted when either no bid is made for land brought to sale for arrears of revenue or when there is good reason to suspect combination among the bidders. In the former case the direction is that the land should be purchased on behalf of Government at a nominal price, the amount of the purchase money being written off the accounts as an irrecoverable arrear with the sanction of the Collector. In the latter case, the officer conducting the sale is authorized to bid on behalf of Government, whether there are bidders or not, up to an amount not exceeding the annual assessment of the land. The last sentence in that paragraph is to the effect that:
When land is bought in by Government, the certificate should be issued in the name of the Secretary of State for India in Council.
3. The Madras Revenue Recovery Act (Act 2 of 1864) under which the sales were held makes no provision for buying in of lands brought to sale for arrears of revenue by Government, but that is not to say that the Government are not entitled to buy in lands if they think fit and to give such instructions in the matter of buying in lands to their subordinate officers as they think fit. To that extent, no objection can be taken to the provisions of the Board's Standing Order 45. But where this standing order is inconsistent with the provisions of Revenue Recovery Act, it cannot prevail over the express provisions of the statute. For instance, it is stated in the Board's Standing Order 45 that the amount of the nominal bid or any bid up to the assessment should be written off as irrecoverable. This does not, in my opinion, take away the force of the provisions in the Revenue Recovery Act which require that in the case of every sale, 15 per cent of the price of the land should be deposited by the purchaser at the time of the purchase, this amount being liable to forfeiture if the remainder of the purchase money is not paid within 30 days: vide Section 36(3). The succeeding clause provides that:
Where the purchaser (and in this case, the purchaser was the Government) may refuse or omit to deposit the said sum of money, or to complete the payment of the remaining purchase money, the property shall be re-sold at the expense and hazard of such purchaser.
4. It is not protended that any deposit was made in the case of these sales on behalf of Government by anybody. It is found that there was no certificate of sale granted to the purchaser and as regards the question whether any order confirming the sales was passed as required by Section 38, Sub-section 3 of the Act, there is no admissible evidence to show that such an order was passed. Neither the order itself, nor a copy of if; has been produced. No doubt there are references to such a confirmation in certain notices sent by the Tahsildar and there are entries of the lands in the village register in the name of the Government. But these notices and these entries are not sufficient in law to prove that there was an order in writing confirming the sale. The confirmation of the sale is a matter required by law to be in writing and such confirmation can be proved only by production of the order or a copy thereof certified or proved to be a correct copy. It would also appear that in the case of some of the lands said to have been sold even the amount of the bid made on behalf of the Government was not clearly entered. It is not known whether the amount of the bids was ever credited to the defaulter; this however is a matter of no importance so far as the present case is concerned. It is clear that the sale of the lands held under the Act was not in accordance with the provisions of that Act and that therefore they are not valid and binding on the plaintiff.
5. It has been contended by the purchasers from the Government, namely defendants 1 and 2, that they are bona fide transferees for value and therefore entitled to remain in possession even if their vendor's title is found to be non-existent. This aspect of the case was not put forward in the form of an issue nor raised in either of the Courts below. I do not think there is real substance in this claim, and I am certainly not prepared to allow this point to be raised for the first time in second appeal and to remand the whole case to the trial Court for this purpose. So far as these defendants are concerned, they have a remedy open to them which will give compensation to them, whereas the plaintiff will have no other remedy except in the present suit. The second appeal is therefore allowed and the decrees of the Courts below are set aside. The plaintiff will have a declaration as prayed for. The plaintiff is entitled to recover his costs in all the three Courts from defendant 3. Defendants 1 and 2 will bear their own costs. Leave to appeal is refused.