Abdur Rahim, J.
1. This is an appeal against the decree of the District Judge of Bellary, setting aside a sale, for arrears of revenue, of certain land. The sale took place on the 20th May 1912 and the appellant, the 1st defendant in the suit, purchased it. The second defendant is the mortgagee, who apparently was in possession of the land at the time of the sale. The grounds on which the sale was sought to be set aside are set out specifically in paragraph 3 of the plaint, and made part of the issues at the time of the trial. It is clear that grounds (a), (b) and (c) would not be good grounds for a Civil Court to set aside the sale. The Collector has got power, if the sale is vitiated on account of any irregularity in the conduct of it, to set it aside.
2. But, it is contended, that the sale was bad, firstly, because it was fraudulently brought about. Supposing that, if made out, would be a sufficient reason for setting aside the sale, it is quite clear that it has not been shown that there was any such collusion or fraud as would make the sale liable to be set aside. The case of the plaintiff on this point rests on Exhibit C, which is an agreement entered into between the 1st and the 2nd defendant, that is, the purchaser and the mortgagee, on the 23rd May 1912, by which they agreed to divide the land among themselves in certain shares. That was after the sale had been held, and it is difficult to conceive how the Judge held that the agreement must be taken to amount to a fraud vitiating the sale. Even if there was an agreement among certain bidders before the sale that they would not bid against teach other or that they would divide the property among themselves after the sale had been concluded, that would not be a sufficient ground for setting aside the sale. It is enough to refer for authority to Mahomad Mira Ravuthar v. Savvasi Vijaya Raghunadha Gopalar 2 Bom. L.R. 640 : 4 C.W.N. 228 : 7 Sar. P.C.J. 661 which is a decision of the Judicial Committee of the Privy Council. In fact here there was a number of bidders, at least 9, and it is not shown that there was any sort of understanding or collusion among them not to bid against each other.
3. Then it was suggested that the demand was not served on the plaintiff, the owner of the land, and, therefore, on that ground, the sale was bad. But the point does not appear to have been taken in the form of an issue before the lower Court and, so far as we can gather from the judgment of the learned District Judge, no such question was investigated by him. The validity of such grounds depends upon who was the defaulter within the meaning of the law, and whether the demand was not served be such defaulter in accordance with Section 25 of the Revenue Recovery Act, II of 1864. That section says:
Such demand shall be served by delivering a copy to the defaulter, or to some adult male member of his family at his usual place of abode, or to his authorised agent, or by affixing a copy, thereof on some conspicuous part of his last known residence, or on some conspicuous part of the land about to be attached.
4. That the terms of this section were not satisfied there is no evidence to show. Then the plaintiff is alleged to have purchased the land from the widow of one Durvasappa, who had himself purchased it from one Balappa, in whose name the patta stood and who died sometime in 1907. It is alleged that the plaintiff had made an application for transfer of patta in his name, but even that is not borne out by the record, so far as our attention has been drawn to the evidence. It is sufficient to say that the question was not raised before the Court of trial and we are unable to hold that the procedure laid down by the Act was not followed on this point.
5. It may be pointed out that the learned District Judge has not really confined himself to the issues that arose before him, He proceeded on grounds which do not appear to have been raised by the issues and which do not come apparently within the purview of the Act; take for instance grounds Nos. (a) and (5), namely, 'no attempt was made to distrain the moveable properties of the defaulters which were more than sufficient to liquidate the arrears' and 'no attempt was made to distrain the crops on the land before the land was attached,' These would not be good grounds for setting aside the sale by a suit. Then he finds in paragraph 10 of the judgment: 'Further more there was combination among the bidders.' If any such case was relied upon by the plaintiff, it should have been taken distinctly in the issues. Beyond a general allegation that the sale was illegal, irregular and fraudulent, it was not alleged that there was any conspiracy among the bidders which would vitiate the sale.
6. I would set aside the judgment of the District Judge and dismiss the plaintiff's suit with costs here and in the Court below.
7. Oldfield, J.--I agree with my learned brother's conclusion, and desire only to say a few words with reference to the plaintiff's contention, that the sale is bad because he had no such notice of the attachment, as he was entitled to under Section 25 of the Revenue Recovery Act, II of 1864. That section entitled a defaulter to notice of the attachment in the shape of a written demand served upon him; but in order to plead that section, the plaintiff must show that he is the defaulter. The facts are that the plaintiff had bought land about 2 years before the sale, which stood in the name of one Blipped who was not his vendor and died before the sale and that the patter was never transferred, to plaintiff's name. The patter in fact is alleged to have remained in the name of Blipped, notwithstanding his decease. The plaintiff, however, says that he had applied for transfer of patter on the date of the sale. But the only evidence as to such application is (given by the plaintiff's 8th witness, the plaintiff's agent, and it does not show when the application he speaks of was made or granted or whether it was before the sale. The 1st defendant further denies that the application referred to by the witness related to the suit land and the evidence of the witness is not absolutely clear on the point. There is further the failure to examine the plaintiff's 2nd witness the Reddy regarding it. In the circumstances it does not seem to me to be proved that any application had been made when the sale took place.
8. Then it is contended that, even if there was no registration in plaintiff's favour and no application for any, he was the defaulter, because he owned the land, and had not paid the revenue. This can, I think, be answered by reference to Zamora of Halibut v. Seatrain 2 Ind. Dec. 865. There, no doubt, the patter stood in the name of a tenant, and the complaint was that there was no demand on the landlord. The decision, however, was: 'By suffering the registry to stand in the tenant's name, the proprietor puts him forward as the ostensible owner, and as between him and the Government the service upon such tenant must be taken to be, in law, service upon the real owner. He cannot complain that the Government is in error in serving the written demand on the person whom he permitted to appear as the ostensible land-owner'. I do not think that the plaintiff's position can be better than that of the proprietor referred to in Zamora of Calico v. Stream M. 2 Ind. Dec. 865 when instead of allowing some one else to appear as the ostensible patted, his conduct has resulted in there being no ostensible patted at all. For these reasons, I think that the plaintiff's contention based on Section 25 of the Act must fail even on his allegations of fact.
9. I agree further with my learned brother that the record indicates that the plaintiff did not think it worth while to press this contention at the trial, and that we ought not to allow him any opportunity to revive it now.