Prinsep and Ghose, JJ.
1. The plaintiff was the proprietor of two estates being mouzahs Mohsimpur Kurtha and Kunchunrup. Apparently he has had some difficulty in the payment of Government revenue owing to the default of his co-sharer. The properties fell into arrears in the payment of Government revenue due on the 7th June 1890, and were accordingly brought to sale. The plaintiff unsuccessfully petitioned both the Collector and the Commissioner to set aside the sale of mouzah Mohsimpur Kurtha, but he succeeded in his application to the Collector in regard to the sale of Kunchunrup, which was in another district, and the Collector of which was more favourably inclined towards him. It would seem that after the sale the plaintiff had a communication with the purchaser, Babu Radha Kristo Bhuttacharjee, a pleader of the Judge's Court at Patna, who had been his pleader for some years past, and in consequence of what the plaintiff maintains was the result of this communication, and a promise received from Babu Radha Kristo, he has brought the present suit to set aside the sale held on the 30th September 1890. He sues to set aside the sale on two grounds : First, that at the time when the sale was held, there was no arrear of Government revenue; and, second that in consequence of an attachment by an order of the Civil Court then subsisting, the sale could not be held by reason of Section 5 of the Sale Law. The plaintiff also claims to recover the property as against the purchaser, Babu Radba Kristo Bhuttacharjee, on an agreement said to have been entered into with him, under which he undertook to reconvey the plaintiff's share in this property to him. The Subordinate Judge has held that the estate was properly brought to sale, as arrears of Government revenue claimed from the plaintiff were really due, and that the proceedings in regard to the sale were in accordance with the law, and he dismissed the suit as against Babu Radha Kristo Bhuttaeharjee personally on the ground that, on the evidence, he could not hold that the contract was complete in regard to this transfer.
2. These three points are made the grounds of appeal before us.
3. In regard to the first point, it is sufficient to say that we entirely agree with the judgment of the Subordinate Judge which sets out clearly in what respect the arrears of Government revenue were due. It seems to us that any confusion which exists in regard to this matter is due to the attempt of the revenue authorities to assimilate the months in the Indian calendar with those in the English calendar, with which they do not completely correspond. We are satisfied on the evidence before us that the estate was in arrear, and was, therefore, properly brought to sale.
4. In regard to the second point, it is alleged that inasmuch as there was an attachment by an order of the Civil Court on the 2nd August 1890, the property could not be brought to sale without due observance of the formalities prescribed by Section 5 of the Act. Section 5 in our opinion does not apply to this case. The last day of payment of Government revenue was the 7th of June, and the attachment of the Civil Court was not made until the 2nd August following. Section 5 provides for cases in which the attachment has been made at least fifteen days before the last date of payment for which it is sought to bring the estate to sale. We may refer to the case of Bunwari Lall Sahu v. Mohabir Persad Singh 12 B.L.R. 297 (300) : L.R. 1 I.A. 89 (104) for the reason for this enactment, and the observations of their Lordships of the Judicial Committee clearly show that a case such as we have now before us does not fall within the scope of Section 5. The attachment having been made on the 2nd of August, it would be impossible to comply with the terms of Section 5 of the Act of 1859, which requires the Collector to give notice of that attachment fifteen days preceding the date for the payment of arrears. But the date fixed for the payment of these arrears was the 7th of June, some time before the attachment. Section 5 would not therefore apply to a case like that now before us, in which the attachment was after the last day of payment and after the estate had become liable to sale for arrears of Government revenue.
5. In regard to the third point, we think that the Subordinate Judge has correctly he held that the evidence as to the alleged contract between the plaintiff and Babu Radha Kristo Bhuttacharjee is extremely vague and inconclusive. The evidence of the plaintiff himself does not show that any agreement was arrived at, and no doubt it fails to show specifically what were the terms of any agreement contemplated. There is the evidence of other witnesses which is more to he point, but we think that in a matter of this description, the evidence on the principal is the most material. So far, therefore, we agree with the Subordinate Judge. We may, however, observe, that, even taking it for the purposes of argument that the agreement was as the evidence of the plaintiff's mookhtear states it to have been, that Babu Radha Kristo Bhuttacharjee agreed to reconvey to the plaintiff a half share in both these mouzahs on receipt from him of the amount paid at the sale, together with interest, the plaintiff has made it impossible for the defendant to comply with any such agreement. The plaintiff subsequently succeeded in getting set aside the sale of Mouzah Kanchunrup, in which he holds only a half share, and, therefore, what is said to have been contemplated, namely, that the two parties should each retain a half-share of Kunchunrup and half of the other mouzah Mohsimpur Kurtha, is no longer possible. We observe also that the plaintiff in his plaint does not even offer to pay to the defendant any money for the half share.
6. The appeal is, therefore, dismissed with costs.