Harington and Geidt, JJ.
1. These four appeals arise out of four suits, which were brought by various parties having interests in an estate known as Tarwan to have the sale of the mehal, which had been sold for arrears of revenue under the provisions of Act XI of 1859, set aside. The learned Subordinate Judge of Gya has set aside the sale on various grounds, expressed in his findings on the issues, which he laid down for trial. He has found that there were irregularities in publishing and conducting the sale and that by reason of those irregularities the plaintiffs sustained substantial loss and injury. He has found that it was necessary that notice under Section 6 of Act XI of 1859 should be issued, and that such notice was neither issued nor served. He has found that there was irregularity in issuing and in serving the notice under Section 7 of the Act and that that affected the revenue sale in question. He has found that it was necessary to issue notice to the co-sharers in the mehal Tarwan under Section 14 of the Act and that no such notice was issued or served. He has also found that there was a defect in the sale proclamation process under Section 6 of the Act, and that there was irregularity in the service thereof. He has further gone on to find another irregularity with respect to Section 14, but that appears to be a repetition of the earlier issue relating to that section, which he has found in favour of the plaintiffs.
2. The estate in question was one for portions of which separate accounts had been opened. Some few years previous to the sale, which gave rise to the present suit, it had been sold for arrears of revenue and subsequently disputes arose between the old proprietors and the purchasers at the revenue sale, and the result of these disputes was that in January 1901 the District Judge appointed a common manager under the provisions of the Bengal Tenancy Act. Default was made in paying the September kist of the ijmali share of the mehal and accordingly on the 3rd January 1902 the ijmaili share of this estate was put up for sale, but there were no bids at any rate up to the extent of the revenue in arrears. Whereupon the Collector acting, under the provisions of Section 14 of the Revenue Sale Law stepped the sale and declared that the entire mehal would be put up to sale, if the cosharers did not purchase the share in arrear by paying the whole arrear due to the Government from such share within 10 days. No such purchase was made within 10 days after that declaration with the result that under the provisions of Section 14 the entire mehal was put up for sale on the 27th of March and was sold for the sum of Rs. 5,100.
3. The plaintiffs alleged that this sum was grossly inadequate to the value of the estate, and they alleged, though their allegation is not admitted by the defendant, that the real value of the property was 3 lakhs of Rupees. They alleged that they had been much injured by the low price at which the estate was sold, and they accordingly appealed to the Collector to set aside the sale on various grounds, which appear in their grounds of appeal taken to that officer. The Collector declined to set aside the sale with the result that the four suits, which have given rise to the present appeals, were brought.
4. Now taking the grounds in the order in which they appear as issues in the judgment of the learned Subordinate Judge we come first to the question which arises under Section 5 of the Revenue Sale Law. The learned Judge has found that it was necessary to issue a notice under that section. That section provides that the notice specified shall be issued in cases in which inter alia an estate is to be put up for sale for arrears of revenue other than those of the current year or of the year immediately preceding, and also if the estate to be put up for sale for arrears is under attachment by order of any judicial authority or managed by the Collector in accordance with such order. The other two cases in which a notice under Section 5 is necessary are irrelevant to the present case. It is contended that in this case the estate was put up for sale for arrears other than those of the current year or of the year immediately preceding. Now the question whether that was so or net depends on what meaning is to be given to the words 'current year.' The sale of the whole estate was on March 27th. The kist in respect of which it was sold ought to have been paid by the 28th of September in the preceding English year. But if instead of the English year the official year is taken then the arrear in respect of which the estate was sold comes within the official year, because it comes between the 1st of April 1901 and 31st March 1902. Now let us see what is meant by the word 'year' in the Revenue Sale Law. It is necessary to refer to Section 3, which gives the Revenue Board power to fix the days of payment of the revenue. Under that section the Board of Revenue may by notification fix the last days of payment, and the material portion of the section comes at the end of it which says that the days so fixed shall not be changed except by the said Board by notice and notification in the manner described to be issued 'at least three months before the close of the official year preceding that in which the new date, or new dates are to take effect.'
5. Then, if reference be made to the rules of the Board as to the last days of payment, it is found that they differ in various districts; for example, they are not the same in Bengal and Assam as they are in the Orissa and Chittagong Divisions or in the Hazaribagh or Ranchi districts, and so on. But it will be seen that in every case the order of the months in which the revenue is payable is the order of the official year and not the order of any calendar year. The inference we think is irresistible from the provisions at the close of Section 3, coupled with the orders that have been made under that section by the Board of Revenue, that the current year in the Revenue Sale Law is the official year within which the different kists of the revenue have to be paid. If then it be taken as the official year, the sale was not for arrears other than those of the current year or year immediately preceding. The kists in the district in which this estate lies have to be paid, the first kist on the 7th June, the second kist on the 28th September, the third kist on the 12th January and the fourth kist on the 28th March; and this kist for which the estate was brought for sale, had to be paid by the 28th of September. The sale was in January and the arrear therefore was one, which fell due in the current year or the year immediately preceding. The result therefore is that as far as that point is concerned there was no need for notice under Section 5.
6. The next argument addressed to us on behalf of the appellant was that the learned Judge was wrong in holding that this was an estate under attachment. Now Section 5 provides, as we have observed, that estates under attachment cannot be sold for arrears of revenue without issue of a notice under that section. It is argued that because there has been a common manager appointed by the District Judge under the provisions of the Bengal Tenancy Act that is in effect an attachment and brings the estate within the limits of Section 5. The answer appears to us to be this--that those who drafted that section contemplated cases of estates being not only under attachment but under the management of some official or other and the provision expressly limits the section to cases of estates under attachment by order of any judicial authority or estates which are managed by the Collector in accordance with such order. It appears to us that those words of necessity exclude the case of an estate managed by a common manager appointed by judicial authority, because if it had been intended to include estates under that species of management then the section would not be limited to estates managed by the Collector. To hold that Section 5 applied to estates managed by a common manager appointed by the District Judge would be in effect to treat the section as if the words 'by the Collector' were omitted om the section. It is impossible to read the section in that way On the ground that eases of estates under management are limited to management by the Collector under that section, it is impossible to say that management by a manager appointed under the Bengal Tenancy Act by the District Judge is included in the section. For that reason we think that the grounds, on which it is urged by the respondents that the notice under Section 5 is necessary, both fail, and that no such notice is necessary under the Act.
7. The learned Counsel, who appeared for the respondent, went farther and said that the sale was illegal under the provisions of Section 17 of the Revenue Sale Law, because by that section no estate held under attachment by the Revenue authorities otherwise than by order of a judicial authority shall be liable to sale for arrears accruing, whilst it is so held under attachment; and no estate held under attachment or managed by a revenue officer in pursuance of an order of a judicial authority shall be liable to sale for the recovery of arrears of revenue accruing during the period of such attachment or management, until after the end of the year in which such arrears accrued. The same answer is applicable to that argument as to the argument founded on Section 5, namely, that it in express terms limits the cases of estates under management to estates under management by a revenue officer, and therefore management by a common manager under the Bengal Tenancy Act does not fall within the section. Moreover, it is tolerably clear in our opinion what the object of the section was, that is to say, it was to prevent property being sold for arrears of revenue, while in the hands of the revenue authorities, for arrears which had accrued due while it was in their hands. We think it does not apply to the present case and that the sale cannot be said to be illegal under Section 17.
8. The next point taken is that the notices under Section 7 were necessary and that these notices not having been published persons who were entitled to receive rents from raiyats were ignorant of the fact that the estate was put up for sale and therefore the sale must be set aside. Now there is a great current of authorities beginning with the case of Ramnarain. Koer v. Mahabir Pershad Singh (1886) I.L.R. 13 Calc. 208 down to the case of Sheorutton Singh v. Net Loll Sahu (1902) I.L.R. 80 Calc. 1 showing that the non-publication of the notice, which is directed to be issued to the raiyats under Section 7 forbidding them to pay rent to the defaulting share-holder or proprietor does not affect the legality of the sale as between the auction purchaser and the proprietors. The object of that section does not appear to be to give to the proprietors notice of the fact that the estate was to be put up to sale, but it is to prevent the raiyats and under-tenants from paying rent to the defaulter. We think that the non-publication of notice under that section does not affect the case.
9. With respect to the notice under the other sections we are precluded from going into the evidence as to whether the notices when issued were or were not duly served and posted, because under the provisions of Section 8 of Act VII of 1868 the grant of certificate, which in this case has been granted, is conclusive evidence of the due service and publication of such notice. We are therefore unable to enter into the investigation of the evidence as to whether notices were duly served or posted provided that they were issued.
10. The next question, which was raised, was under Section 14. The learned Subordinate Judge held that it was necessary under that section to give notice to the cosharers of the declaration which has to be made calling on them to buy up the shares within the period of 10 days, and stating that in the alternative the whole estate will be brought to sale. Now, in the first place, Section 14 does not direct the publication of a notice. Section 14 enacts that, if the offer for the share is not equal to the amount of arrear due thereupon, the Collector shall stop the sale and shall declare that the entire estate will be put up for sale, unless the recorded sharer or sharers purchase within ten days the share in arrear, by paying to Government the whole arrear due from such share and then it goes on to enact that, if no such purchase is made within ten days the entire estate shall be sold after notification for such period and publication in such manner as is prescribed in Section 6 of the Act. Now Section 14 does not direct any notification of the declaration which is to be made. The learned Subordinate Judge relies on a decision in Gossain Chutturbhooj Dut v. Ishri Mul (1894) I.L.R. 21 Calc. 844 where one of the learned Judges founded his judgment on a duty which he considered was cast on the Collector of giving such notice in accordance with a circular, which had been issued by the Board of Revenue. But that circular has been withdrawn on the ground that it went beyond the provisions of the section, and it was not in force when the present suit was decided. The result therefore is that even the foundation of the judgment in Gossain Chutturbhooj Dut v. Ishri Mul (1894) I.L.R. 21 Calc. 844 which was relied on by the learned Judge in the Lower Court, has been cut away, and in our opinion there was no need at all to issue this notice, because the Act does not prescribe that such notice be issued. The learned Counsel, who appeared for the respondents, argued that as a matter of principle the Collector was bound to issue such notice on the ground that he could not interfere with the property without giving them the notice and opportunity to exercise their option of purchasing. But we think that the Collector did all that he was bound to do when he gave the notice, which was prescribed by the Revenue Sale Law; and that he was not bound to give a notice, which the Act did not direct him to give.
11. Another point that was urged in support of the judgment of the learned Subordinate Judge was that the sale was illegal, because the Collector had bid on behalf of the Government Rs. 1,000 for the ijmali share, and it is said that it was a bid exceeding in amount the arrears due on that share. But reference to the evidence shows that it was not a bid, but merely a sum given to start the auction and was regarded by no person as a bid for the estate to be sold; and that being the evidence we think there is nothing in the point and there is a further difficulty in the way of the respondents that they could not have relied upon it because it was not taken in the grounds of appeal before the Collector. We think that there is nothing in that point.
12. The next and the most substantial point is the one taken on the notice published under Section 6 of the Revenue Sale Law. That section provides that the Collector shall issue notification in the language of the district specifying the estates or shares of estates, which will be sold and the date at which the sale will commence. The notification of the ijmali share, which was to be sold on the 3rd January, contained a list of 38 villages with the shares stated against the ijmali shares to be sold. Now it is alleged that the mahal contained 42 villages and the learned Judge found that the notification was inaccurate, inasmuch as it included some villages, which ought not to have been included and excluded seme other villages, which ought to have been included. If it had been proved as a matter of fact that the villages, which were excluded, were in fact part of the ijmali share, and if it were proved that in fact this list of villages was an inaccurate list of what constituted the ijmali share of the mahal, I should have hesitated in saying that the notification complied with the direction of the law, which provides that it shall specify the estate or shares of estate to be sold. It appears to us that the intention of that section is to enable the persons, who intend to bid, to know what it is they are going to purchase; if as a matter of fact the list was inaccurate and misleading, we should find some difficulty in saying that it complied with the provisions of that section. But in this case we think the matter is more or lees of academic interest, because it has not been proved as a matter of fact, or at least our attention has not been drawn to evidence that it was established that these villages excluded did form part of the ijmali share of the mahal in question. The only evidence, as we have seen, as to what villages were the villages belonging to the ijmali share, which are not included in the sale notification, is that to be found at page 470 of the paper book, where it is shewn that certain villages are stated in the Collectorate as portions of the mahal Tarwan, but it is not shown on that document that they were portions of the ijmali share of the mahal Taiwan, and it is quite possible, as the case stands before us, that there might be separate villages, which do not now form portions of the ijmali share. Bearing in mind that the onus lay on the plaintiffs to prove that the sale notification was inaccurate, we cannot say that they have been successful, until they have shown that these villages were not only villages belonging to the mahal, but villages belonging to the ijmali mehal put up to sale. But assuming in favour of the respondents that the sale notification was in this respect inaccurate, in our opinion that does not carry them home, because they have got to show not only that the sale was made contrary to the provisions of the Act, but that they suffered substantial injury by reason of that irregularity. In this case they have sought to show that they suffered substantial injury by the evidence of one Gokhul Lal. Gokhul has given evidence to show that his master wished to buy the village called Golha Pathra, that that village was omitted from the list of villages in the sale notification and that therefore his master did not bid for the share, with the result that the whole estate was subsequently put up for auction and was bought to the damage of the plaintiffs. Now, if that were established as true, we should say that the plaintiffs had suffered; because if Gokhul's master had purchased the ijmali share the whole mahal should not have been put up for sale. But is the evidence to be relied upon? It is a question of fact, and one would hesitate before differing from the learned Judge in the Court below on a question of fact, because he had the witnesses before him. But in his judgment he does not appear to consider the evidence of Gokhul at all, and we are in the dark as to, what opinion he had formed as to the trustworthiness of that witness. He has not discussed his evidence. Indeed, he has not even mentioned this witness's name. The result is that we have to examine the witness's evidence without any of the advantages, which are usually derived from consideration of the opinion of the Judge of the Court of first instance. The first thing to be observed is that evidence like that of Gokhul is very easy to fabricate. It is significant that the master, who sent him, presumably a man of position and respectability, has not been called to give evidence. Then Gokhul himself refers to the village, which he says his master wished to buy, as the village of Golha Pathra. If reference be made to the list of villages given as belonging to the list of mahal Tarwan from the Collectorate, Golha is set down as one and Patbra is another. That circumstance looks as if Gokhul did not know very much about what the villages of the mahal were. Then he says his master owns four or five mouzahs adjoining Golha and therefore he wanted to purchase Golha. But he says that, when he found that it was not in the list of villages, he abstained from bidding for that share. It strikes one as a curious circumstance that though his master was willing to pay four or five thousand rupees for the ijmali share in the village, he did not come forward, when the whole estate was put up for sale, and when he might have got not only the whole village, but the whole estate for very little more than Rs. 5,000 when the entire mahal was put up for sale. Had he come forward to bid at that sale it would have been a strong evidence that the story was an honest one. At present it is not explained how it was that when he wished to buy the village adjoining the mouzah he owned and he was willing to bid for the ijmali share in it he was not willing to bid for the whole village, notwithstanding that the whole of the mouzah went for the sum of Rs. 5,100. For these reasons we do not think that the evidence of Gokhul is to be relied upon; and if the evidence of Gokhul is rejected then there is no evidence that the omission of any village from the sale notification had caused any damage to the plaintiffs. But as we have observed the matter is one more or less of academic interest, because it has not been satisfactorily proved on the evidence, which has been placed before us, that those villages, which had been excluded from the list, are portions of the ijmali share of the mahal. These are all the substantial points placed before us.
13. We may observe that it was contended in the course of the argument by the learned Counsel for the respondents that the sale was for January kist and it was illegal on that ground. We have referred to page 55 of the paper-book and it is clear to us that this is an error and that the sale was for the September kist and not for the January kist, and the result is that we think that the grounds, on which the learned Subordinate Judge set aside the sale of this mouzah, cannot be supported.
14. The result is therefore that the appeal must be allowed with costs and the judgment and decree of the Lower Court must be set aside.