S.K. Ghose, J.
1. This is an appeal by the defendant in a suit for setting aside a revenue sale which was held on 9th January 1933. It appears that originally there was touji 313 of the Dacca Collectorate in which defendants 1 and 2 and their brother had 2 annas 5 gandas share. They sold their share to the plaintiffs' predecessors, after which there was a partition and the 2 annas 5 gandas share was retained as old No. 313 for which the revenue assessed was Rs. 179 odd. The present suit concerns the residuary mehal 313 of 9 annas odd share in which the plaintiffs are now the owners of 8 annas share while the remaining 1 anna share belongs to defendant 2 who is the step-brother of defendant 1. The total revenue for the residuary share is Rs. 104-13-6. According to the Collectorate registers there are four latest dates for payment of arrears of revenue, namely 28th June, 28th September, 12th January and 28th March, the revenue being payable in four kists. The amount of Rupees 12-3-3 was in arrears on 28th March 1932. The notification for sale was issued on 7th December 1932. The sale actually took place on 9th January 1933, the property being knocked down to defendant 1 for Rs. 51. The plaintiffs' case is that the sale was held without jurisdiction as the date of sale was prior to the date of the latest day for payment of arrears which should be 12th January in this case, and further the sale was vitiated by fraud because defendant 1 by fraudulent misrepresentation dissuaded intending purchasers from bidding. The learned Subordinate Judge has held in favour of the plaintiffs on both these points and decreed the suit. Hence this appeal by the defendant.
2. The same two points have been raised in this appeal. The first question is whether the latest date for payment of arrears under Section 3, Land Revenue Sales Act is 12th January 1933 in this case as held by the learned Subordinate Judge. The defence contention is that the date mentioned in the Land Revenue Boll of Touji 313 are the latest dates for the payment of arrears of land revenue and they are not the dates of the respective four kists. For this reliance is placed on Ex. 0. The plaintiffs' case on the other hand is that the aforesaid dates are also the dates of the kists. Consequently when one kist is in default the latest date for the payment of that arrear would be on the following date for payment. Therefore in this particular case the arrear shown against 28th September would be payable on 12th January in accordance with the provisions of Section 3, Land Revenue Sales Act. Dr. Sen Gupta for the defendant-appellant has laid stress on Cols. 6 and 7 of Ex. C. wherein the heading is 'the latest date for the payment of the arrears of land revenue'. This must be taken along with the other Collectorate registers which go to show that the four instalments are also taken to be kists. In the land revenue arrear list (vide Ex. E), the entries contain a heading for 'kists ending 28th September 1932'. The touji ledger (vide Ex. F) shows a statement of the four kists and further the payments made on 24th June 1932 and 27th June 1932, for instance, are credited to the current land revenue account of the first kist. For the second kist payments were made on 22nd September 1932, 27th September 1932 and 29th September 1932 and the total sum Rs. 22-4-0 was credited to the current land revenue account leaving a balance of Rs. 3-12-0. This latter sum together with Rs. 7-8-3 due on account of previous arrears gives the total sum of Rs. 12-3-3 in arrears on 28th September 1932. That the kists are also the same as the latest dates for the payments mentioned in the Land Revenue Boll is further confirmed by the oral evidence of plaintiff 1 who speaks of 'Mats June, September, January and March not according to Bengali calender nor on 30th Bhadra'. This is corroborated by the defendant 1 himself. He says: 'My own kists are January, March, June and September' and further: 'If a kist is not paid in time the property is put up to sale at the time of the next kist.' Taking all the evidence together it seems to us to be reasonable to hold that the dates and the amounts mentioned in the Land Revenue Roll (vide Ex. C) are the kists as also the latest dates for the payment of arrears. Consequently an arrear in respect of 28th September would have its latest date of payment on 12th January following. Dr. Sen Gupta has laid stress on the notification of sale (vide Ex. A-l), which was issued on 7th December 1932 and which contains the following words:
This proclamation of sale is being served for realization of the arrears of revenue in respect of the demand (of revenue) payable on or before 30th Bhadra 1839, B.S. for the above mentioned Mahals and shares of Mahals and the latest date for payment of which was fixed on 28th September 1932.
3. The expression 30th Bhadra 1339, B.S. however is misleading and inconsistent with the oral evidence in this case. The view that we are inclined to take is consistent with that taken by the Judicial Committee in Mt. Saraswati Bahuria v. Surajnarayan Choudhuri . There also the revenue payable was taken to be in respect of four instalments in spite of the fact that the entries in the notification issued by the Board of Revenue contained the words 'latest dates for payment'. Their Lordships did not rely on the notification that was issued under Section 7, Revenue Sales Act. In Krishna Chandra Bhowmick v. PabnaDhanabhandar Co., Ltd. , it was found that the latest dates for payment of instalments of revenue and the latest dates for payment of arrears were the same. In the present case, having regard to the evidence before us, we prefer to follow the authority of the aforesaid two decisions of the Judicial Committee rather than the view that was taken in Radha Gobinda Deb v. Girija Prosanna Mukherji, : AIR1932Cal153 . In these circumstances we think that the learned Subordinate Judge was right in holding that the latest date of payment in the present case is 12th January 1933. Consequently the sale which was actually held on 9th January 1933 was without jurisdiction.
4. It has next been contended by Dr. Sen Gupta that this objection would apply only to the sum of Rs. 8-7-3 and not to the remaining sum of Rs. 3-12-0 which fell due on account of the second kist. So he has contended that in any case the Collector was within his jurisdiction in holding the revenue sale and he has relied on the decision in Lal Behary Maity v. Rajendra Nath Maity AIR 1926 Cal 866. In that case, however, only the amount of cess was not due but, leaving that out, the entire revenue was due. In the present case the entire amount of revenue for which the sale was held was not an arrear. This was at least a material irregularity and the finding is that the price fetched at the sale was inadequate causing substantial loss to the plaintiffs. In that view also the plaintiffs will be entitled to have the sale set aside under Section 33 of the Act.
5. The next point is whether the learned Judge was right in holding that the sale was vitiated by the fraudulent conduct of defendant 1. It appears that excluding defendant 1 there were two persons bidding at the sale. At first the bidding started with the other two and then one of them, Jaheruddin Ahmed, dropped out. The bidding then went on between defendant 1 and the other man Apurba Hazra. The plaintiffs' case is that defendant 1 represented to Apurba Hazra that the property belonged to his brother and that he was purchasing in his brother's behalf and so Apurba should not bid. Thereupon Apurba left off bidding and went away. This story is supported by the evidence of three persons, namely two revenue agents P. Ws. 1 and 3 and one Jamini Kanta Chakravarti a pleader, who was examined on commission. The learned Judge says that there is absolutely no reason to disbelieve the evidence of this witness and he has come to the conclusion that defendant 1 committed fraud by representing to Apurba Hazra that he was purchasing his brother's property whereas really his brother had only a 1-anna odd share while the major share of 8-annas belonged to the plaintiffs which fact defendant 1 entirely suppressed. We have been taken through the evidence and we are unable to disagree with the view of the learned trial Judge. It is contended that mere dissuading of bidders does not amount to fraud. But in this case there was not merely dissuading of bidders but there was a representation which amounted to a false representation and which undoubtedly had the effect of dissuading Apurba Hazra from bidding. It appears that the plaintiffs took steps to have Apurba Hazra examined as a witness. The first attempt was made to have him examined as a witness on commission on the ground of illness. But it was resisted by defendant 1 and the plaintiffs failed. Thereafter the plaintiffs tried to serve summons, and failing that took out warrant, but in this also they were unsuccessful. On the other hand the evidence is that Apurba Hazra is a cousin of the junior pleader engaged by defendant 1 and living in the same house. In this state of the evidence it seems to us that the view taken by the trial Judge must be accepted.
6. The result is that we agree with the trial Judge. The appeal fails and must be dismissed with costs to the plaintiffs-respondents; only hearing fee is assessed at three gold mohurs.
7. I agree.