1. This appeal by two of the defendants is directed against the judgment and decree of the Subordinate Judge, First Court, Sylhet, dated 14th August 1937. The suit was instituted by nine plaintiffs to set aside a revenue sale held on 23rd January 1934, in the alternative for a reconveyance of the plaintiffs' share from defendants 6 and 7. The learned Subordinate Judge has granted the first prayer. Mehal Syed Muhamed Nazir, hisya taluk, Md. Batir, bearing Touzi No. 54721/1 of the Sylhet Collectorate, is a permanently settled estate with a total annual revenue of Rs. 3152-3-0. The total local rate payable at the material time was Rs. 754-11-7. The proprietors of the said mehal had opened separate accounts under the provisions of Section 65 of the Assam Land and Revenue Regulation (1 of 1886). Before September 1933, thirteen separate accounts had been opened, the first seven in respect of aliquot shares of the mehal and the remaining six in respect of specific lands of the same. With the residuary there were thus fourteen separate accounts. Another separate account (No. 14) was opened in November 1933. The revenue and local rates were payable in two kists, eleven annas in May and the remaining five annas in September of each year. Separate accounts, Nos. 2 and 6, as also other separate accounts, were in arrear for the May kist 1933. The remaining separate accounts except Nos. 2 and 6, cleared up the arrears by payment before 12th September 1933, the date fixed for sale for the arrears of May kist, but separate accounts, Nos. 2 and 6, were still in default on that date. In the sale statement (Ex. 23, II-1) prepared by the Deputy Commissioner under Section 72 (1) of the Regulation the arrears stood thus:
No. of Aarrears of Arrears of Separate Revenue local rate TotalAccount --------------------------------------------------------No. 2 Rs. 634-8-2 Rs. 151-9-61 Rs. 786-1-8No. 6 Rs. 102-14-7 Rs. 24-7-11 Rs. 127-6-6---------------------------------------------------------Total Rs. 737-6-9 Rs. 176-1-51 Rs. 903-8-2---------------------------------------------------------
2. In the course of the sale, thesaid two separate accounts were reached on 15th September 1933. No bids were offered for them with the result that the Deputy Commissioner stopped the sale and directed under Section 70 (2) the sale of the entire estate at the sale date to be fixed for the sale for the arrears of the September kist of 1933. Within ten days of this direction none of the proprietors of the remaining separate accounts came forward to pay up the arrears due for the said separate accounts Nos. 2 and 6 as provided for by Section 76. 23rd January 1934 was later on fixed as the sale date for the arrears of the September kist of 1933. On that day, the entire estate, Taluk Muhammad Batir, was put up to sale and was purchased by defendants 3 and 4 for Rs. 2300. On 17th, January 1935 after the confirmation of the sale (which was on 8th November 1934), defendants 3 and 4 executed a deed of release in favour of defendant 7, Syed Abdul Jabbar, in which they admitted that the latter had 12 annas share in the estate purchased by them, as he had contributed 75 per cent, of the price. (Ex. B, 11-33) defendants 3 and 4 on the same date sold the remaining 4 annas share to defendant 6, Rabindralal Das Chaudhury, son of defendant 5 (Ex. H, II-35). Defendant 7 on the next day (18th January 1935) sold 4 annas out of his 12 annas share to defendant 6 (Ex. I, II-37). The position then at the date of the suit, which was filed on 25th September 1935, was that the entire estate so purchased by defendants 3 and 4 had passed to defendants 6 to 7, who held the sale of 23rd January 1934 to be an irregular one. In the sale statement and in the proclamation of sale the arrears of the entire estate for the September kist 1933 were also shown and lumped together with the arrears of May kist of 1933 due in respect of separate accounts Nos. 2 and 6. This according to him could not be done by the Deputy Commissioner. This is the only irregularity he found. He held that the estate was worth much more than Rs. 2300 (about Rs. 32,000), and that the irregularity on which he proceeded in decreeing the suit had been mentioned by the plaintiffs in their memorandum of appeal to the Commissioner filed under Section 79. Before us Mr. Bose appearing for the plaintiffs respondents besides supporting the reasons of the Subordinate Judge, has placed three other points, which according to him vitiate the questioned sale. The points accordingly are : (i) that the Deputy Commissioner had no jurisdiction to sell the entire estate on 23rd January 1934; in any event the sale statement not being in accordance with law the sale was an irregular one, (ii) that the acceptance of the earnest money four or five hours after the bid was a material irregularity, (iii) that the sum of Rs. 36 and Rs. 9 paid after 15th September 1933 and before the advertisement on account of revenue and local rates respectively were not credited. That was also a material irregularity. He has further contended that even if the sale cannot be reversed, the plaintiffs are on the facts proved entitled to a conveyance of their respective shares on payment of proportionate prices. We will first deal with this point and the question whether the sale has fetched an adequate price. We may at once say that we agree with learned Subordinate Judge on both these points.
3. The plaintiffs' case is that defendants 1, 2 and 8 to 23, for brevity's sake called the Sultanshi Zemindars, were men of influence but some of them, especially defendant 9, were involved in debts and some others had created unprofitable tenures. They intentionally defaulted to pay their share of revenue with a view to purchase in benami at the revenue sale, so that the encumbrances which they had created may be got rid of. On the date of the sale two of them, defendants 1 and 2, and their naib, Musrabulla, dissuaded the officer of plaintiff 1 from offering bids by holding out allurements, and later on the agents of the Sultanshi zemindars after the sale, at which they purchased the property in the benami of defendants 3 and 4, induced the plaintiffs by false promises not to deposit the arrears and the compensation within 30 days of the sale under Section 78-A. This case has been developed in the evidence of Harimohan Dass, naib of plaintiff 1, and Girish Chandra Pal, another officer of plaintiff 1. The case made in the lower Court that there was a concluded contract between the plaintiffs and the Sultanshi Zamindars by which the latter promised to convey to the former their respective shares for proportionate prices was not pressed before us by the respondents' advocate and so need not be considered.
4. On the case so presented the first question of importance is whether defendants 3 and 4 were benamidars, and if so, whether they were benamidars for the Sultanshi Zemindars. (After discussing evidence their Lordships concluded as follows.) We hold that defendants 3, 4 and 7 purchased for their own benefit. None of them were the benamidars of any of the Sultanshi Zemindars. The plaintiffs are not entitled to any reconveyance from them. We hold that the price fetched at the revenue sale was not adequate. The reasons given by the learned Judge are however not sound. The amount of revenue or local rate, which is levied on an acreage basis is no index of value. But there is evidence that the income of the estate was considerable. The two annas share, which plaintiff 1 had, gave him a return of Rs. 800 to Rs. 900 a year. Prosanna, the manager of plaintiff 1, mentioned the figure at p. 71, line 10 but no suggestion was made in cross-examination that the profits were not so much. The dealings of defendant 7 also pointed out that the property was worth much more than Rs. 2300. He demanded large selamis (Rs. 7000 to Rs. 8000) for settlement of fractional parts of the estate (p. 100, line 20 and p. 134, lines 1 to 20). The sale will have to be reversed if material irregularity is established. This leads us to the question of material irregularity. We will now deal with them.
5. We do not see any substance in the contention that Rs. 36 paid as revenue and Rs. 9 as local rate after 15th September were not credited by the Deputy Commissioner. The arrears of revenue for the May kist of 1933 for separate account Nos. 2 and 6 was Rs. 737-6-9 and of the local rate Rs. 176-1-5 as shown in Ex. 23 (II-1), the sale statement prepared for the sale fixed for 12th September 1933. In the sale statement Ex. 21 (II-5) prepared for the sale fixed for 23rd January 1934, the arrears of revenue and local rates for the May kist of 1933 are shewn as Rs. 699-8-3 and Rupees 165-15-1 respectively. The arrears were thus reduced by a little more than Rs. 36 and Rs. 9 respectively. There is no evidence on the side of the respondents to show that the arrears were less than what has been shown in Ex. 21. We accordingly overrule this point urged by the respondents. The next point is with regard to the alleged delay in depositing the earnest money. The evidence leads us to the conclusion that the bidding in respect of this estate, taluk Muhamed Batir, was over at about 2. P.M. but other sales were taken up thereafter and those sales were finished at 5 P.M. The nazir who was conducting the sale was also the treasurer. It is not likely that he would have or could have accepted the earnest moneys before 5 P.M. But the fact remains that the earnest money was deposited at about 7 P.M. The question is whether this constituted an irregularity for which the1 sale is to be set aside. Section 77 provides that the person declared to be the purchaser shall be required to deposit immediately 25 per cent, of his bid and in default of such deposit the property is to be forthwith put up to sale again. This provision was not strictly observed, but there is no evidence, that the neglect of this provision has caused the plaintiffs-respondents substantial injury. There possibly may have been a case of injury if defendants 3 and 4 were given time and they ultimately failed to pay in the earnest money and a resale was held after the intending bidders had left. The sale cannot, in our judgment, be accordingly annulled in view of the provisions of para. 1 of Section 82.
6. It now remains to consider the two part of the argument involved in the first point raised by Mr. Bose. The first branch of the argument as put forward by him is as follows: The Deputy Commissioner could have put up to sale on 23rd January 1934 the entire estate for the arrears of separate accounts Nos. 2 and 6 for the May kist of 1933, i.e. the 11 annas kist, as no bids haft been offered when those two separate accounts had been put up to sale on 15th September 1933 and as the Deputy Commissioner in terms of Section 70, Sub-section 2 had directed the sale of the entire estate and no other proprietor had paid the same within the time limited by Section 76. But the Deputy Commissioner, says he, had not in fact put up the entire estate to sale for those arrears. He had put up for sale the entire estate for the arrears of the September kist of 1933, i.e. the five annas kist. In support of his contention Mr. Bose has relied upon the-heading of the sale statement (Ex. 21-II-5) and of the advertisement in the Gazette, which is an exact copy of the same. The heading runs as follows: 'Instalment on account of which arrear is due - five annas kist of 1339.' Then follow in a tabular form the details of a large number of estates which were in arrears including the estate, Taluk Muhamed Batir. Against Taluk Muhamed Batir however two sums are shown as arrears, namely Rs. 985-1-0 as current arrears of revenue and Rs. 235-13-8 as current arrears of local rate, that is arrears for the September kist of 1933 (5 annas kist of 1339) and Rs. 699-8-3 as bakea arrears of revenue and Rs. 165-15-1 as bakea arrears of local rate, that is arrears for the May kist of 1933 (11 annas kist of 1339.) The heading therefore WSJS amplified in relation to this estate by the above details contained in the body of the statement. The sale statement and the advertisement taken as a whole and read fairly indicate that the sale of this estate was advertised not only for the arrears of the September kist but also for those of the preceding May kist. It is admitted in the plaint that at the time when the Deputy Commissioner made the order on 15th September 1933 under Section 70, Sub-section 2 he declared that the entire estate would be put up to sale at the sale date to be fixed for the arrears of the 5 annas kist of 1339 (September kist, 1933) and in the sale statement Ex. 21, and in the notification that was in fact done. No doubt the arrears of the September kist of 1933 were added to the arrears of the May kist, 1933, but that raises a separate question which we deal with later on.
7. On the opening of a separate account under Section 65, the liability of all the proprietors still continues to be joint and several. But the separate account in default must first be put up to sale and not the entire estate for such default. If no bids are offered or the bids offered are insufficient to wipe off those arrears the entire estate is to be put up to sale, but after giving an opportunity to the other proprietors to pay up the same within ten days. As soon as the abovementioned circumstances combine with the non-payment of the arrears in terms of Section 76 the Deputy Commissioner is empowered to put up the entire estate to sale and he cannot again be required to advertise for sale the separate accounts separately and to put them up separately for the default of the next kist. In Kumar Narendra Nath Roy v. The Midnapora Zemindary Co., First Appeals Nos. 203 and 204 of 1973 the matter has been examined in detail in reference to the provisions of the Bengal Land Revenue Sales Act, 11 of 1859. The provisions of the Assam Land and Revenue Regulation are similar. The last mentioned regulation however is more solicitous for the rights of the Crown, for unlike Act 11 of 1859 it continues the joint and several liability of the proprietors even after the opening of separate accounts. It further holds out a greater inducement to the other proprietors to pay up the arrears of a separate account and so purchase it, when for the separate account in arrears either no bids or insufficient bids had been offered, for the proprietor who comes forward and pays up the arrears, acquires the separate account free from encumbrances. We cannot accordingly agree with Mr. Bose's argument that for the arrears of the September kist of 1933, each separate account had to be advertised separately for the September kist of 1933 and had to be put up to sale separately on 23rd January 1934 and whole gamut of procedure as laid down in Section 70, Sub-section 2 read with Section 76 had to be followed again before the entire estate could be put to sale. We accordingly overrule his contention that the Deputy Commissioner had no jurisdiction to sell the entire estate, as he did, on 23rd January 1934. The default of separate accounts Nos. 2 and 6 gave the Deputy Commissioner power to declare that the entire estate would be put to sale at a future date and the default of the other proprietors in not paying up those arrears within the time limited by Section 76 gave the Deputy Commissioner's jurisdiction to put into effect what he had previously declared. The entire estate could however be put up to sale, if, and only if, on merging the accounts of the separate accounts into one account, an arrear appeared. The nett balance has to be struck up to the kist date for which he intends to put it up for sale. He would have jurisdiction to include the arrears of the next kist provided that the advertisement be for the sale of that kist also. This has been laid down in Sheik Haji Mutasaddi Mian v. Muhamed Idris (1915) 2 A.I.R. P.C. 177 at p. 765. That was a case under Act 11 of 1859, but the principles laid down there apply to this case with the same force. The next question is whether lumping the arrears for the May kist of 1933 with the arrears for the September kist of 1933 constitutes an irregularity. In our judgment it does not. This is not contrary to any provision of the regulation. The Deputy Commissioner is required under Section 72 to prepare a sale statement. He must include therein the following particulars, namely (1) description of the property (2) its annual revenue and (3) time and place of the sale. What other particulars are to be included is left to his discretion. He has therefore the discretion to show in the statement the total arrears, due up to that time.
8. Assuming that the inclusion of the arrears of the September kist in the sale statement amounts to an irregularity the plaintiffs have to face two points. They did not specify this irregularity in their application made before the Commissioner under Section 79. We do not think that grounds Nos. C and N mentioned at pp. 12 and 13 of part 2 or the corresponding grounds in the other application cover the point. Section 82 in effect lays down that a Civil Court can annul a sale on the ground of irregularity resulting in substantial injury. The Section however is worded in a negative form. Sub-section 2 puts further limitations on the powers of the Civil Court. The suit for annulment must be brought within a year of the finality of the questioned sale and (2) the irregularity complained of must be specified in the application made to the Commissioner under Section 79. We cannot accept Mr. Bose's construction of Sub-section 2 to the effect that the particular ground must be specified in the application to the Commissioner only in the case where the suit is instituted beyond a year of the finality of the sale but need not be specified where it is instituted within a year. For this contention, he puts emphasis on the word 'or' used in that sub-section. That contention would have had some force if a suit to annul a revenue sale could have been instituted beyond a year. Apart from the provision contained in the last portion of that sub-section which in our opinion prescribes the period of limitation, the period of limitation to set aside a revenue sale has been prescribed by the Limitation Act itself. Article 12, Clause (c) of Schedule 1 prescribes one year's limitation from the date of the confirmation of the sale. The second obstacle in the path of the plaintiffs is that they have not been able to prove resulting injury. We cannot agree with the Subordinate Judge when he says that if the arrears for the September kist had not been included in the sale statement and in the advertisement the plaintiffs could have saved the estate from sale on 23rd January 1934 by paying up the arrears for the May kist only. At that date that right was gone. It was gone on 26th September 1933. That right could have been exercised only in terms of Section 76. We do not decide the question, and keep it open as to whether defendants 3, 4, 6 and 7 or any one of them can be considered defaulters within the meaning of the Assam Regulation as that question is not relevant to this suit. We accordingly hold that the sale is a valid sale. The appeal is accordingly allowed. The plaintiffs-respondents must pay defendants 6 and 7 their costs of this Court and of the lower Court. We allow one set of costs here and of the Court below to be divided equally between them. As we have discharged the decree of the lower Court it is not necessary to make a separate order on the cross-objections. No order is made as to costs on the cross-objections.