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Rai Kiran Chandra Roy Bahadur and ors. Vs. Brajes Charan Sen and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1940Cal306
AppellantRai Kiran Chandra Roy Bahadur and ors.
RespondentBrajes Charan Sen and ors.
Cases ReferredCharan v. Amir Khan
- 1. these two appeals are in two suits nos. 134 and 133 of 1933, brought under section 14 of regn. 8 of 1819 to set aside two patni sales held on 15th may 1933. in appeal no. 132, there is a special plot, but the other points are common to both the appeals. in 1796 dewan krishna kanta sen purchased at a sheriff's sale, touzi no. 243 of the jessore collectorate known as taraf rasulpore. he was ultimately succeeded by his brother krishna gobinda sen who died leaving his six sons as heirs. on 17th march 1823, five of his sons, gurudas sen and others, granted a patni of their five-sixth share in the said touzi to ram ratan roy and durga das roy (ex. z, b 14). thereafter on 27th august 1823, shib prosad sen, the remaining son of krishna gobinda, granted a patni of his one-sixth share to the.....

1. These two appeals are in two suits Nos. 134 and 133 of 1933, brought under Section 14 of Regn. 8 of 1819 to set aside two patni sales held on 15th May 1933. In Appeal No. 132, there is a special plot, but the other points are common to both the appeals. In 1796 Dewan Krishna Kanta Sen purchased at a Sheriff's sale, Touzi No. 243 of the Jessore Collectorate known as Taraf Rasulpore. He was ultimately succeeded by his brother Krishna Gobinda Sen who died leaving his six sons as heirs. On 17th March 1823, five of his sons, Gurudas Sen and others, granted a patni of their five-sixth share in the said touzi to Ram Ratan Roy and Durga Das Roy (Ex. Z, B 14). Thereafter on 27th August 1823, Shib Prosad Sen, the remaining son of Krishna Gobinda, granted a patni of his one-sixth share to the same persons Ram Ratan and Durga Das Roy. (Ex. Z 1, B 18). It is admitted, and there cannot also be any doubt, that Exs. Z and Z-l created patni and not shikmi taluks in favour of the grantees. The appellants are the successors in interest of Ram Ratan and Durga Das and the respondents are the successors of the said six sons of Krishna Gobinda.

2. Raja Barada Kanta Roy, who was the former owner of touzi No. 243, instituted in 1828 a suit against the heirs of Krishna Gobinda to set aside the Sheriff's sale. When the matter was pending in the Judicial Committee of the Privy Council it was compromised and on the basis thereof a decree was passed on 1st December 1838 (Ex. Z 26, B 34). Raja Barada Kanta gob nine-annas share and the remaining seven-annas share in the touzi remained with the Sens. The patnidars Ram Ratan and the widow of Durga Das, relinquished by am istafa nine-annas share of the patnis and retained the remaining seven-annas share, the patni rents being proportionately reduced and proportionate selamis were refunded by the Sens under a kistibandi (Ex. Z 5, B 29). There was an agreement for the exchange of fresh pottas and kabuli-yats (Ex. 11, B 27) for the seven-annas share which remained with the Sens as a result of the compromise decree and which was left in the possession of the patnidars Ram Ratan and the widow of Durga Das, but no fresh pottas and kabuliyats were executed and exchanged. The reduced rent, namely what represented the seven-annas share of the Sens was thereafter all along paid or realized. On these facts the learned Subordinate Judge held that the interests of the appellants must be traced to their sources, Ex. Z and Ex. Z-1, and were accordingly patni and not shikmi taluks, to which the provisions of Regn. 8 of 1819 applied. This conclusion which has not been attacked by the appellants' advocate is in our judgment the only conclusion possible.

3. On 18th April 1933 (corresponding to 5th Bysack 1340), which was the first working day of the Bengalee year, the respondents filed two applications under Section 8 of the Patni Regulation before the Collector for sale of the said two patni taluks (Exs. D and G, B 104 and 115). Both these applications were presented by a revenue agent, Hari Lal Mitter, on the basis of two mukhtearnamas, Exs. Z-21 and Z-22 (B 98 and 107). At the sales held by the Collector on 15th May 1933 both the patni taluks have been purchased by the respondents, the larger patni for Rs. 6000 and the smaller one for Rs. 3169, that is far less than the amount of arrears for which the sales were held. The two suits for setting aside the sales, which were filed on 19th June 1933, have been dismissed by the learned Subordinate Judge by his decrees dated 22nd February 1935.

4. The common points urged by the learned advocate for the appellants are: (i) that the notices issued under Section 8 of the Patni Regulation (the astam notices) were bad notices, Inasmuch as they included a claim to interest which the zemindars were not entitled to and (ii) that the said notices were not published in terms of the said section, as there was no publication at the defaulting patnidars' katchery upon the land of the patni taluks. The special point urged in First Appeal No. 132 is that the application for sale was not made by all the zemindars. No other points have been urged before us, the learned advocate for the appellants stating to us that though he is not challenging the other conclusions of the lower Court, he must not be taken to be abandoning the points covered by the said conclusions.

5. For the purpose of deciding the first of the aforesaid common points, it would be sufficient to set out the terms of one of the astam notices, for the other notice is similar in terms. The notice is Ex. 22(a)(B 109). It sets out in the schedule the amount of arrears claimed and states that if the defaulters do not pay the same together with interest upto the date of realization before the date fixed for the sale, the patni taluk would be sold. In the schedule a sum of Rs. 1146-15-0 (there is a misprint in the figure) is claimed as interest. The contention of the appellants is (a) that the respondents could not in law inolude the claim for interest, and (b) as they have done so the sale is liable to be set aside.

6. The learned Subordinate Judge held that the respondents could not claim any interest under the contract, but they were entitled to claim the same at the rate of 12 1/2 per cent, under Section 67, Ben. Ten. Act. Therefore the claim as made in the petitions for sale and in the astam notices was not excessive,' as interest had in fact been calculated at 12 par cent, per annum. In that view of the matter he did not decide the second point which we have formulated above. The learned advocate for the respondents has not argued in support of the conclusion of the learned Subordinate Judge that interest was payable under Section 67, Ben. Ten. Act, but declared that he does not abandon the point. He has however urged before us that the matter is concluded in favour of his clients by res judicata. We will therefore have to consider whether interest could be claimed by the respondents at all or at that rate, either on the basis of contract or of Section 67, Ben. Ten. Act, or on the basis of res judicata.

7. The claim cannot be supported on the basis of contract, for the patni kabuliats, Exs. Z and Z(1), (B)14 and 18) do not provide for interest on the kists in arrears. Nor can interest be claimed under Section 67, Ben. Ten. Act. The reason which leads us to hold that Section 67 is inapplicable is that the tenancies represent patni taluks. Sections 2 and 3 of the Patni Regulation enact that in the case of patni taluks the rights of the parties are to be determined according to the terms of the engagement between them. The phrase 'according to the terms of engagement,' means all the terms of the engagement including those relating to rent. According to the terms of the engagements in the cases we have before us no interest on arrears was payable. In view of the provisions of Section 195(c), Ben. Ten. Act, as it stood in 1933, those terms cannot be affected by any provisions contained in the Bengal Tenancy Act. There cannot therefore be any scope for the application of Section 67 of the said Act: Manoranjan Roy v. Selamuddin (1935) 61 C.L.J. 364 and Samser Ali v. Haji Araf Mahmad Talukdar Munshi Mohammed Hossein (1937) 41 C.W.N. 605. We will now have to examine the argument based on res judicata. The contention of the learned advocate for the respondents is that it had been settled conclusively between the predecessors of the parties in 1858 that the zamindars were entitled to charge interest at the rate of 12 per cent, on the basis of usage. To support this contention reliance has been placed upon an inter partes judgment of the Principal Sudder Amin of Jessore (Ex. Z 25-B 51). That case will have to be examined in detail. For the arrears of rent of the year 1263 B.S. the zamindars applied to the Collector for sale of the patni taluk. In their petition they claimed interest on the arrears. At the time of the sale the patnidars offered to pay the amount that represented arrears of rent but objected to the claim for interest. The Collector struck off the matter on the view that no interest was payable under the terms of the patni kabuliat. The zamindars accordingly brought the suit in the Civil Court for recovery of the arrears of rent together with interest. In the summary of the plaint as given in Ex. Z 25 no grounds are stated on which the claim for interest was sought to be sustained. The defence was that interest could not be claimed as there was no contract to pay the same, and that no interest could be awarded under Interest Act (39 of 1839) as the plaintiffs had not served on the defendants a notice in the terms of the said Act. The rejoinder of plaintiffs was that there being a stipulation in the kabuliat for payment of the money kist by kist and no payment having been made they were entitled to interest. It does not appear that the plaintiffs pleaded usage, but in support of their claim they produced a decree of the year 1831 which had awarded them interest. This decree of the year 1831 is not on the records of this case.

8. To understand the pleadings as summarized in Ex. Z 25, it is necessary to have in view the provisions of the Interest Act of 1839. It empowers the Court to allow interest to the creditors at a rate not exceeding the current rate on debts or sums certain: (a) When payable under a written instrument at a certain time, interest being calculated in that ease from the time when the sum was payable under the written instrument. In this case, a previous demand in writing is not necessary, (b) When payable either not at a certain time or not under written instrument, then from the time when a demand in writing is made. In this case demand in writing is essential. The defendants accordingly had in view the second part, what we have stated in (b), but the plaintiff's rejoinder was that the Court could award interest without a previous written demand because the case fell within the first part, that is, what we have stated in (a). This is our view of the pleadings. The rejoinder meant that 'notice' or written demand was not necessary but interest could be awarded under the Interest Act because the sum payable was a sum certain, payable at a certain time (according to the kists) and payable under a written instrument (the kabuliat).

9. Before we deal with the judgment that was pronounced we think it necessary to correct a mistranslation at p. 57 line 30. The words 'by the defendants' are to be inserted after the word 'invoked.' Issue 2 related to the plaintiffs' claim for interest. In our view of the judgment that claim was dealt with by the Court in the following manner. The Court did not allow interest on the basis of contract. It overruled the defendants' plea that a written demand in terms of the last portion of Section 1, Interest Act, was necessary. It held that the case came within the first part, what we have stated in heading (a) of our analysis of the Interest Act, and for the purpose of exercising its discretion in favour of the plaintiffs it relied upon two facts namely: (1) that repeated oral demands had been made by the plaintiffs, and (2) that on a former occasion (1831) interest had been decreed. The observation that the decree of the year 1831 indicated a 'custom for payment of interest' was only an incidental one, as the existence of such a custom had not been put in issue on the pleadings of the parties. From an analysis of the pleadings as summarised in Ex. Z-25, it seems that the controversy related to the point as to whether the case fell within the first or the second part of Section 1 of the Interest Act. The judgment also did not proceed on the basis that the decision pronounced on 27th July 1831 was res judicata on the question of interest. We accordingly hold in agreement with the learned Subordinate Judge that by its judgment in the suit of 1858 the Court awarded interest under the Interest Act, and though there is no discussion in the judgment as to the rate, on calculation it works out at 12 per cent, per annum. The respondents could not accordingly include in the applications under Section 8 of the Patni Regulation or in the Astam notices a claim for interest, as they did, at the rate of 12 per cent, per annum, calculated on the basis of monthly kists, for, if they were only entitled to get interest on the basis of the Interest Act, that interest had to be assessed by the Court in a suit for recovery of their dues, and then only at the current rate of interest. What the current rate was in 1933 would depend upon proof. The position therefore is that the defendants-respondents made an excessive demand in the proceedings for Astam sale. The excess demand was not a trifling sum but a substantial one, Rs. 1146-15-0 in one case and Rs. 229-5-6 in the other. The question is whether this is a sufficient plea for the reversal of the patni sales.

10. Paragraph 1 of Section 14 provides in a mandatory form that the sale is to be held on the date fixed if the balance claimed by the zamindar be not paid on that date. Part 2 of the Section provides for a summary enquiry by the Collector at the in-stance only of the talukdar (i.e. patnidar) if he chose to contest the zamindar's demand to any arrear. This, in our judgment, means that he can ask for a summary investigation not only when his case is that no balance was due but also when he contends that the balance claimed was more than what the zamindar was entitled to. The talukdar is not bound to ask for a summary investigation by the Collector but may reserve it for a suit for reversal of the sale under Section 14 of the Regulation: Shuroop Chunder Bhowmick v. Rajah Pertab Chunder Singh (1867) 7 W.R. 218. The Collector has to make an award and the intention is that it should be made before the date fixed for the sale. But, if the case for summary investigation be not disposed of before the said date, the sale is not to be stayed or put off, and if the zemindar insists on the sale it can only be stopped by the deposit of the full amount claimed by the zemindar in the notice of sale. If, however, by reason of the deposit not being made the sale is held, it would be made on the responsibility of the zemindar, and the alleged defaulter will have no remedy but by a regular action for damages and for reversal of the sale. This sub-section gives an indication, though not a conclusive one, that excess demand may be a ground for reversal of the sale.

11. Paragraph 2 of part I of Section 14 confers on the defaulting patnidar or any person who may be affected by the patni sale the right to sue the zemindar in the Civil Court for reversal of the sale. That is the only form of remedy given to them, for a patni sale cannot be attacked collaterally and holds good till it is reversed in a suit brought under that sub-section: Mahammad Badsha Mia v. Arun Chandra (1936) 40 C.W.N. 1233. That paragraph however does not indicate exhaustively the grounds for which a patni sale can be reversed. One specific ground is indicated, namely there being no balance, but the words following, namely 'on any other ground' cannot be construed on the principle of ejusdem generis, that is to say other grounds need not be of a nature similar to the ground of total absence of arrears. Any ground which may affect the right of the zemindar to make that questioned sale would be sufficient. If for instance, he does not follow the procedure laid down in Sections 8 and 10, which are of substance, the sale will have to be reversed, for the right to make the sale rests upon the observance of the substantial rules of procedure prescribed in the Regulation. The case in Bhupendra Narayan singh v. Madar Bux 0049/1925 is an extreme illustration of this proposition.

12. The Regulation provides for a summary method under a regulated procedure for the recovery of the arrears of rent due by the patnidar to the zamindar. The proceedings are to start with a written application by the zemindar for sale containing a specification of the balance of the expired year in the case of an annual sale, or in the case of a mid-year sale, of the balance for the first six months. The application with a notice in the prescribed form must be stuck up in a conspicuous part of the Collector's katchery, and two notices, or relevant extracts thereof, must be published one at the mal katchery of the zamindar and the other at the katchery or principal town or village upon the land of the defaulter. On the date of sale the notice stuck up in the Collector's katchery must be brought down and an agent of the zemindar must attend with a statement of the balance due. The zamindar is exclusively responsible for all the matters specified above. He is also exclusively responsible for the correctness of the statement showing the balance which has to be inspected by the Collector (Section 9 last paragraph). Such being the scope of the Eegulation, proceedings for a summary sale can only be started for the purpose of recovery of rent and of such further sums which can be recovered as rent under the same procedure by which sent can be recovered, e.g., arrears of cess and interest on rent and cess, where such interest is payable in law.

13. The effect of a sale under the Regulation has been denned in Section 11. It would wipe away the interest of a darpatnidar and of other subordinate tenure holders and would destroy encumbrances on the patni, subject 4o a limited exception. Those persons have accordingly been given the right to deposit the sum which may be shown in the zemindar's statement of the balance. The Astam notices must contain not only the statement of the claim but must state definitely that if the whole amount specified in the notice, in the case of an annual sale, or in the case of mid-year sale, the whole of the advertised balance or such an amount as would reduce the arrear including any intermediate demand for kartic, to less than one fourth, be not paid before the date fixed for sale, the sale will be held. The importance of this has been pointed out in the judgment of the Judicial Committee of the Privy Council in Nawab Khaja Ahsanulla Khan v. Hurri Churn Mozumdar (1893) 20 Cal. 86. The principle which we deduce; from the said decision is that it is essential that the claim specified in the notice must not be more than what in fact is claimable, for the patnidar, darpatnidar, mortgagees and other encumbrancers may have available to then an amount which may satisfy what was demandable in law but not the excessive demand. The fact that the Astam notice which has to be published under Section 8 has an important significance for the darpatnidars, under-tenure holders, mortgagees land encumbrancers and the fact that they have rights to be protected from the drastic effects of a patni sale cannot, in our judgment, be ignored. The case in Khyarennessa v. Satya Bhanu Ghosal : AIR1930Cal599 has been cited by the respondents' advocate in support of his contention that if an amount which the zamindar cannot in law claim, be stated in the Astam notice, but separately, the patni sale cannot be reversed on the ground that the claim made was excessive, whatever may be the amount of the excessive demand. That case, however, does not support this broad contention and the decision must be taken to have been pronounced on the facts of that case and the fact that the excess demand represented a trifling sum was a material fact. The second point urged in that case by the appellant's advocate was met in the judgment on three grounds: (i) that the patni potta had not been produced. It may have been that by its terms snbsequent impositions like cesses were made part of the rent; (ii) that amount of cess claimed was inconsiderable and (iii) it had been shown separately in the notice. The second ground was sufficient to repel the appellant's contentions, for to have a patni sale reversed the non-compliance with the provisions of Section 8 must be a substantial and not a technical one, which can be cured on the principle of de minimis non lex curat.

14. If, however, the learned Judges meant to say (which in our opinion they do not) that the fact that the excessive claim, made in the Astam notice could not be a ground for the reversal of the sale, because it was shown separately from rent, however substantial the excess amount may be, we must dissent from the proposition, as being inconsistent with the principle formulated by the Judicial Committee in Nawab Khaja Ahsanulla Khan v. Hurri Churn Mozumdar (1893) 20 Cal. 86. The patnidar may know that he is not bound to pay what has been shown separately, but not the darpatnidars, under-tenure holders, mortgagees and other encumbrancers. We accordingly hold that the Astam notices in the cases before us were substantially defective, as the excess claims made therein were for substantial amounts, and this constitutes a sufficient plea justifying the setting aside of the sale. The sales cannot accordingly stand.

15. The appellants' advocate has only challenged the regularity of the publication of the Astam notices which are required to be published on the land of the patni taluk. The evidence is that the notices were duly published in Mouza Bhahadurpore which is an important village included in the patni taluks. There is ample evidence in support of such publication, which evidence we believe. The second part of his argument on this part of the case is that there were katcheries on the land of the patni taluks and no notice having been published at any of such katchery, the proceedings are materially irregular. In Maharani of Burdwan v. Krishna kamini Dasi (1887) 14 Cal. 365 the concluding words of para. 3 of Section 8, Second, were construed. It was laid down therein that publication must be at the katchery on the land of the defaulter, and only if there is no such katchery, then at the principal town or village appertaining to the taluk sought to be sold. The question there fore reduces itself to a question of fact, namely if there was one or more kateherys of the defaulting patnidars within the patni taluks. The onus is entirely upon the zamindar to prove that the notices had been served in terms of the Regulation: Hurro doyal roy v. Mohomed Gazi (1892) 19 Cal. 699 and Maharaja of Burdwan v. Tara Sundari Debi (1883) 9 Cal. 619. Bearing this in mind we now proceed to examine the evidence.

16. It is the case of both parties that years back there was a katchery of the patnidars in village Bahadurpore but that katchery was removed about eight or ten years ago to the town of Jessore which is not included in the patni taluks. Panchanan Das, an officer of the appellants, admitted in cross-examination (A. 65) that rent of the tenants under the patni were realized from the Bahadurpore Katchery when the katchery was in existence. In answer to a further question he admitted that rents due from the tenants of Taraf Rasulpore, i.e. of the entire patni taluks, were realized from there. The inference would follow that at the material point of time rents from the tenants of the patni taluks were being realized from the place where the Bahadurpore Katchery was shifted, i.e. from Jessore, which is at a very short distance from Bahadurpore. This inference is strengthened by the fact that although a number of officers of the appellants were examined none of them named any katchery of their masters within any of the patni villages from which rent was being realized in 1933 after the katchery in village Bahadurpore was abolished. Jyotirmoy Roy Choudhury, (A. 116) the respondents' manager, states that he gave definite instruction to his subordinate Eadhabullav Biswas, who was in charge of the matter of service of the Astam notices, to enquire if there was any katchery of the defaulters at any of the patni villages, and that if he found any, he was to effect service at such a katchery. In cross-examination he could only say what he had heard and that was that there was no katchery of the defaulters within the patni taluks. Eadhabullav states that he made enquiries and was satisfied that there was no such katchery. This is corroborated by Aswini Kumar Babu (A. 75 and 76).

17. The respondents cannot be expected to lead better evidence, but cogent evidence can be expected from the appellants who were the defaulting patnidars, if there was any such katchery. All they did was that at the close of the case (23rd January 1935) they filed and exhibited some settlement khatians finally published about 12 years before the Astam proceedings which showed that some plots in villages Agdia, Purulia and Hida had been recorded as being the katcherys of the ijardars, the appellants being recorded as mokarari mourasi ijaradars under themselves as patnidars (Ex. 26 series). The relevant entries are at pp. B 255, 256, 271 and 279. Those three villages are within the patni taluks. We agree with the Subordinate Judge that those khatians do not prove the existence of those kateherys in 1933, that is that those huts were being, used at that time as the patnidars collection offices. Much better evidence, both oral and documentary, would have been forthcoming from the side of the appellants, if they had katehery on the lands of the patni taluk in 1933. We hold that such evidence as there is on the record establishes the fact that at the time of the service of the Astam notices there was no katchery of the defaulters on the lands of the patni taluks. This ground is accordingly overruled.

18. We will now deal with the special poinfc raised in First Appeal No. 132 of 1935. Section 8 of the Regulation requires a petition by the zamindar to the Collector. Where there are more than one zamindar under whom the patni taluk is held the application must be a joint application made by all of them. The law has been summarized at pp. 143 and 144 of the Tagore Law Lectures of 1895 (Land-Law of Bengal by Mr. Sarada Churn Mitter, an ex-Judge of this Court) in a passage which has been quoted in extenso by the learned Subordinate Judge. In the case before us, the application was made by a revenue agent, Hari Lal Mitter, on the basis of a muktearnama (Ex. Z 22 B 107) executed by Priya Bala Sen as the certificated guardian and mother of Anuttam Sen who is described there as a minor. In fact Anuttam Sen had attained majority in August 1932 and his mother had at his instance made over charge to-him before 7th March 1933 (Order-sheet of the learned District Judge in the guardianship case - Exs. 12 and 12(a)).

19. The point was not specifically raised in. the plaint and the order sheet was filed in Court on 10th January 1935 when the appellants opened their case. They were-marked Exhibits on 15th January when they closed their case, according to the usual practice of marking as exhibits documents which do not require proof. The respondents then opened their case and their manager Jyotirmoy Roy Choudhury, was examined on 23rd January 1935. He narrated the circumstances under which the said mukttearnama was executed. We do not think that the respondents were taken by surprise. It is not denied by them that Anuttam Sen had attained majority before 17th April 1933, when the mukttearnama was executed. His mother therefore could not act for him on the basis that she was his certificated guardian. The evidence of Jyotirmoy was that Anuttam took the muktarnama to his mother, Priya Bala, who executed the same in his presence. He then took the muktarnama to Jessore and handed it over to the Muktear. The evidence of the muktear's clerk, Tara Pada, shows that when he received the muktarnama the body of the mukttearnama had not been written but he wrote the same in his master's house (A 112 1. 42). Jyotirmoy does not state that anything was said to Priya Bala in the presence of Anuttam as to the purpose for which the muktarnama was required. There is nothing on the record to show that Anuttam knew of the purpose for which the mukttearnama was being given by his mother and the body of the mukttearnama being then left in blank he could not know for what purpose his mother was executing the mukttearnama. Anuttam has not deposed, nor has Priya Bala been examined. On this state of the evidence it cannot be said that Anuttam had authorised his mother tacitly (for there is no evidence of express authorisation) to sign for him a mukttearnama for enabling a muktear to file an application for patni sale. The muktear, Hari Lal, was accordingly not authorised by his mukttearnama to file any application for sale for and on behalf of Anuttam. On the basis of that mukttearnama, he filed the application (Ex. G, B115). The names appearing at the top of that application do not represent the signature of those persons. They had been written by the muktear's clerk. On these facts we hold that no application had been made by or on behalf of Anuttam Sen to the Collector for sale of the patni taluk. There was thus a substantial defect and the sale of the bigger patni taluk cannot be upheld.

20. We will now express our opinion on the other points decided by the learned Subordinate Judge which have not been argued before us by the appellants' or the respondents' advocates, nor given up, in view of the observations of the Judicial Committee of the Privy Council in Mohomed Solaiman v. Birendra Chandra Singh (1922) 9 A.I.R. P.C. 405 at p. 254. These points are (1) that there was no publication of the notices at the Collector's Kutchery (2) that there was no publication at the mal katchery of the zemindars (3) that the notices were not served at the Jessore Katchery of the patnidars (4) that the zemindars in their statement of claim had not given the defaulting patnidars a credit for Rs. 1100 which the latter had paid (5) that 15 per cent, of the purchase money not having been deposited immediately after the sales, the sales have to be reversed and (6) that the suits were barred by time as there was no proper suit under Section 14 of the Eegulation before the amendment of the plaint on 12th September 1934. This point was raised by the defendants in the lower Court.

21. We do not see any substance in these points. Eadha Bullav Biswas, Eamesh Chandra Ghosh, the judicial peshkar of the Collector, Tara Pada, the Muktear's clerk and Hari Lal, the muktear prove the service at the Collector's katchery. We believe the evidence. Rada Bullav Biswas and Bhola Nath Mukhopadhyay, prove the service at the mal katchery of the respondents. The return of service Ex. X (at B.102 and 103) and Ex. Y (at B-113) corroborates their evidence. The service at the Jessore katchery of the appellants was an unnecessary service, because that kafechery was not on the lands of the patni taluks. Still we find that that katchery was located! at Swarno Chataiwala's house and that there was proper service there.

22. The patni sales were held for the arrears of the Bengalee year 1339. Two payments, Rs. 1000 and Rs. 100, had been made towards patni rent for which two receipts had been given to the appellants by the respondent's manager, Jyotirmoy. According to his evidence, the payments were appropriated towards the arrears for 1338 B.S. and the two receipts that he gave expressly stated that fact. (A. 118, 1. 38). The respondents called upon the appellants to produce those receipts which they refused to do. The methods of appropriation moreover are shown in the respondents' account books which were produced. We accordingly agree with the learned Subordinate Judge that the said sums were rightly appropriated to the respondents' dues for 1338 B.S.

23. It is a fact that 15 per cent, of the purchase money was not deposited by the respondents on the date of sale in terms of Section 9, but they deposited the whole amount of the purchase money within 8 days of the sale and that was accepted. The zamindars themselves purchased at an amount which did not wipe away the legitimate claims for the year 1339 B.S. It has been proved by the Collector's judicial peshkar, Ramesh Chandra Ghosh, and by Ex. Z-ll (B-87), a letter written by the Board of Revenue to the Commissioner of the Burdwan Division, that in such cases no deposits are to be made by the zamindar purchaser, but the purchase money is to be set off against his claim. In any event, the fact of non deposit when excused by the Collector cannot be in our opinion such an irregularity which would entitle a party to have a patni sale reversed. The case in Abdul Jabbar v. Jitendra Kumar Pal : AIR1940Cal77 furnishes a close analogy.

24. The point of limitation raised by the respondents in the lower Court is of no substance. The plaint as originally filed contained all necessary allegations which if established would entitle the plaintiffs to have the sale reversed. To avoid the payment of ad valorem court-fees the first prayer was a prayer to have the sale declared illegal, etc. The Court was not asked expressly to set aside the sale. That was added by the amendment. The amendment cured the defect and the plaint must be taken to be a good plaint from the date when it was filed. No ground has been made out that the amendment was improperly allowed: Charan v. Amir Khan (1921) 8 A.I.R. P.C. 50. The result is that both the appeals are allowed and the patni sales are set aside. As the appellants have failed to substantiate many of the points raised by them in this Court and in the lower Court we allow them only half costs of this Court and of the Court below. In Appeal No. 288 full hearing fee is assessed at Rs. 300 (three hundred).

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