1. The facts of this case are shortly these. A putni taluk, lot Bhastara, consisting of a large number of mouzahs, was owned by the defendants 1 to 5, the Maharaja of Burdwan, defendant No 8, being the zemindar. Four out of the mouzahs which constituted the putni were let out in durputni, and the durputnidar sublet them in seputni to the plaintiffs. For the arrears of rent due upon the putni for the first half-year of 1293 B.S., the zemindar took proceedings under Regulation VIII of 1819, and caused the putni to be sold on the 17th November 1886 (Aughran 1293 B.S.). It was purchased by the defendants 6 and 7 for the sum of two lakhs of rupees, and the auction purchasers, entitled as they were to treat the durputni and seputni as cancelled by the sale, if the sale had been properly conducted, proceeded to take khas possession of the properties comprised in the putni, the result being that the plaintiffs, the seputnidars, were dispossessed of the four mouzahs. Thereupon they brought the present suit on the 14th November 1887 to recover possession thereof. The case made in the plaint is that the sale was brought about in collusion between the putnidars and the auction-purchaser; that the proceedings taken by the zemindar were had, because they were taken against a deceased person who was no longer the putnidar; and that the sale notification was not duly and legally served upon the property. And the plaintiffs ask that the sale be declared to be bad and such as could not have the effect of extinguishing the plaintiffs' seputni right, and that they be restored to possession of the four mouzahs in question. The suit was valued at Rs. 10,000, being the estimated value of the plaintiffs' seputni right in those four mouzahs only.
2. The Court below was of opinion that the cause of action to the plaintiffs being the sale of the putni, the suit should be valued at the price at which the putni was sold, and not at the value of the four mouzahs included in the seputni. And the plaintiffs not having paid the court-fees required to be paid upon two lakhs of rupees (the price at which the putni was sold), the plaint was rejected.
3. The plaintiffs appealed against this judgment of the lower Court; and they appealed mainly upon the ground that the subject-matter of the suit was not the putni that had been sold, but merely the seputni of a small portion of the putni; that it was not necessary for the Court to set aside the sale of the putni before the plaintiffs could obtain relief; and that the court-fee was payable only upon the market value of the property sued for. And a Divisional Bench of this Court (Petheram, C.J., and GORDON, J.) held that the subject-matter of the suit was the property which the plaintiffs sought to recover, and not the defendants' interest in the entire putni, and that the valuation placed upon this subject-matter by the plaintiffs was correct. This Court accordingly remanded the case to the Court below for trial on the merits.
4. Upon remand the Court laid down certain issues, and evidence was adduced by either party upon those issues.
5. The Subordinate Judge has found upon the evidence that there was no fraud in the matter of the sale, that the proceedings taken by the zemindar were regular, and that the sale notification was duly published in the mofussil It appears upon the judgment of the Subordinate Judge that in the course of argument it was contended on behalf of the plaintiffs that the notice of sale was bad in law, because it did not specify, as provided by Clause 3, Section 8 of Regulation VIII of 1819, that the sale would not take place if the whole of the advertised balance, or three-fourths of it, were paid before the date fixed for sale.
6. The record shows that the notification of sale, though a copy of it was. produced by the zemindar, was not exhibited as evidence, nor did the plaintiffs take any steps to have it so exhibited. It appears to have been withdrawn from the file by the zemindar on the 12th August, when the defendants, the purchasers of the putni, adduced their evidence. The Subordinate Judge, in the absence of the sale-notification, found himself unable to say whether it did or did not contain the intimation contended for by the plaintiffs : he accordingly overruled the contention of the plaintiffs. The result of the trial in the lower Court was that the suit was dismissed.
7. It is from this decree of dismissal that the present appeal has been preferred. The learned Counsel for the plaintiffs have raised but two points before us. First, that the notice of sale was not published in the mofusil. Second, supposing it was published, that it did not contain the intimation that the sale would be prevented if three-fourths of the advertised balance were paid in before the date fixed for sale. It was conteneded that the zemindar being responsible for the regularity of the proceedings taken under Regulation VIII of 1819, the onus of proof that the requirements of the Regulation had been complied with was upon him, that it was not shown that the notice of sale did contain the said intimation, and that the sale was altogether bad in law, the notice being the foundation for the sale. The learned Counsel further asked us to admit fresh evidence in this appeal by calling upon the zemindar to produce a duplicate copy of the notice of sale in order that the matter of the legality of the notice may be decided.
8. As regards the first point raised before us, we have no hesitation in saying; that the conclusion arrived at by the Court below is right. There can be no doubt whatever that the notice of sale was served at the putindar's mal kat-cheri, as prescribed by the Regulation.
9. As to the other point discussed before us, it would appear upon examination of the plaint that the ground of attack of the plaintiffs, as regards the notice, was that it was not duly served in the mofussil. There was no question raised as to its contents. There was no doubt an issue involving the question of the legality of the notice, but it is quite plain upon the proceedings that the plaintiffs did not intend to raise the question now raised; viz., that the notice of sale did not contain an intimation that the sale would not take place if three-fourths of the balance were paid. The plaintiffs did not call upon the putnidars to produce the original notice that was served at the mal katcheri, nor did they call upon the zemindar to produce a duplicate copy thereof; and, as already noticed, although the zemindar did put upon the file a copy of the notice, the plaintiffs took no steps to have it exhibited as evidence in the record, and it was allowed to be taken back, apparently without any objection on their part. It seems to me that under these circumstances the plaintiffs have no right to ask us to admit fresh evidence in this appeal with a view to prove a matter which was entirely in their power to prove if they chose.
10. The contention that the onus of proof was upon the zemindars to prove the legality of the notice of sale was based upon certain rulings which were quoted before us by the learned Counsel for the appellant. No doubt those cases seem to lay down that the zemindar is bound to prove that all the requirements of the putni Regulation were complied with. But I observe that those were cases brought to set aside the sale under Section 14, Regulation VIII of 1819. This, however, is not a suit to set aside the sale within the meaning of that law, and although no doubt the validity of the sale was questioned in the plaint, still it was not a suit framed for that purpose, and no relief was claimed against the zemindar. The subject-matter of the suit was simply the small portion of the property covered by the plaintiffs' seputni (as indeed it was their case when they appealed to this Court on the last occasion), and not the whole property, that was sold at the putni sale. The true cause of action was the sale of the whole estate, and the plaintiffs should have framed and valued the suit accordingly, so that the rights of all the parties concerned could be adjusted in accordance with the spirit of Section 14 of the Regulation [see the case of Unoda Pershad Roy v. Erskine 12 B.L.R. 370 decided by a Full Bench of this Court).
11. Upon all these grounds I am of opinion that this appeal should be dismissed with costs.
W. Comer Petheram, C.J.
12. Mr. Justice Ghose has stated the facts so fully that I need not mention them again.
13. Sir Griffith Evans, founding his argument on the dictum of the Privy Council in the case of Ahsanulla Khan Bahadur v. Hari Charan Mozumdar I.L.R. 20 Cal. 86 : L.R. 19 I.A. 191, that a strict compliance by the zemindar with the rules prescribed by the Regulation is a condition precedent to the validity of the sale, has contended that the onus of proving that each and all of the rules have been complied with lies upon the person who claims under the sale, and that as the defendants have not proved that the notice which was posted up at the mal katcheri was in the form required by the Regulation, the plaintiffs must succeed, and in case there should be any doubt on this, ha has also applied to be allowed to call fresh evidence in this Court to prove what that notice actually was. If this suit had been brought to obtain the relief to which a person affected by the sale of a putni is entitled under Section 14 of the Regulations, I should have very great difficulty in coming to the conclusion that upon the authorities quoted the plaintiffs would not be entitled to succeed without proving that the notice was insufficient, and at all events I could not say that under the circumstances of this case they ought not to be allowed to prove what it did in fact contain; but Dr. Rash Behari Ghose on behalf of the defendants has contended that this suit is one which cannot be maintained at all, and in my opinion he was right in that contention. As has been before said, this is not a suit to set aside the sale, but is one to obtain possession of four mouzahs which the plaintiffs claim as their property and which are in the possession of the 6th and 7th defendants, who obtained them as part of a putni purchased by them at an auction held by the Collector. The zemindar is a formal defendant on the record, but no relief is asked against him. The Regulation Sections 8, 9, 10, and 11 provide that defaulting putni may be sold by the Collector at the instance of the zemindar under certain conditions, and that the purchaser shall acquire the tenure on the same condition as that in which the zemindar created it (Section 11). Section 14 provides that any person desirous of contesting the right of the zemindar to make the sale may bring a suit against him to reverse it. In such a suit the purchaser must be made a party, and the claims of all parties are to be disposed of, and the section goes on to provide that when a dispute exists as to the amount of rent due, a summary investigation is to be held, but that if it is not completed when the day fixed for the sale arrives, the sale is to proceed, and the alleged defaulter shall have no remedy but by the regular action for damages or to set aside the sale. This being the law, the question is whether when the Collector has gone through the form of selling a putni, and has placed the purchaser in possession, the whole transaction is absolutely void if the zemindar has not complied with one of the rules, or whether it is one which in that case can be reversed at the instance of any person injured in a suit brought by him against the zemindar to which the persons interested are necessary parties, and in which complete justice can be done. In my opinion the transaction is voidable only, and, moreover, that it can only be avoided by a suit under the provisions of Section 14. The second clause of that section provides that in the cases which that clause deals with, a suit to reverse the sale shall be the only remedy for the alleged defaulter, and this shows quite clearly to my mind that the Legislature could not have contemplated that a sale held by the Collector under the Regulation should under any circumstances be void; as, if that were so, a putnidar who was in default, and whose putni had been sold without a complete compliance with the rules, could maintain an action to recover possession of it, on the ground that the sale was no sale at all, and that his estate in the land was not affected by it; whereas the section says in so many words that in some cases of the kind, at all events, his only remedy shall be by suit for damages and to set aside the sale. I think that such a sale is good and effectual, unless and until it is reversed in a suit properly framed for the purpose, and that until that is done, the title of any person who claims under it is valid against all persons who claim under the alleged defaulter.
14. The result is that this appeal will be dismissed with costs.