1. The plaintiff Bilas Chandra Roy who is the appellant before us was the owner of an entire estate bearing Touzi No. 9299 in the Dacca Collectorate, The revenue of the estate is Rs. 88-1-1 payable in three instalments and the amounts and the latest days of payments, fixed under Section 3 of Bengal Land Revenue Sales Act XI of 1859, of these instalments are Rs. 60-4-0 on the 12th January, Rs. 16-9-1 on the 28th March. Rs. 1140 on the 28ih June. On the 26th June 1919 the plaintiff himself paid Rs. 11-4-0 at the Dacca Post Office with a revenue money order form duly filled in according to the rules contained in the Bengal Touzi Manual 1918 on account of the revenue payable on the 28th June. On the 6th July the plaintiff received Exhibit 12 the acknowledgment portion of the money order which, instead of being a receipt for the payment of revenue, contained an intimation endorsed in red ink in the following terms 'Received after expiry of due date. The amount is kept in revenue deposit. The Mahal should be released by filing an application otherwise it will be sold at auction sale.' This endorsement is dated the 2nd July. The 29th and 30th June and 1st July were holidays. Within two or three days of receiving this acknowledgment at Munshiganj, where the plaintiff was a practising pleader, he wrote to Rasik Chandra Gangopadhaya Defendant No. 2 who is his Ammukhtear requesting him to file an application for converting the revenue deposit to revenue in respect of Touzi No. 9299. Rasik did not answer this letter until 13th September when he wrote the postcard Exhibit 14 which reached the plaintiff a day or two later. During this interval on or about the 23rd August a young son of the plaintiff died suddenly. Also before this postcard was written the plaintiff's estate had been advertised for sale for arrears of revenue, the sale date being fixed for the 22nd September. In this postcard the defendant Rasik, after explaining his delay in writing on account of his not getting a copy wanted for some other matter, wrote. 'For Mahal Nos. 9299 and 221 two petitions and two Agentnama...will be necessary. Also the receipt for the deposit of money and something for extra expanses and for the Mukhtear and his clerk will be necessary.' On the 15th September the plaintiff sent Rs. 2 by money order to Rasik. A day or two later the plaintiff sent his clerk Satis Chandra Choudhuri (P.W. No. 6) to Rasik at Dacca with an Agentnama and three blank demi papers signed by the plaintiff. No application was filed by the Defendant No. 2 in accordance with plaintiff's instructions, but on the 2!st September he sent the postcard Ext. 17 to the plaintiff. In this he informed him that the sale of Mahal No. 9299 for arrears of revenue was fixed for the next day and that in order to prevent the sale it would be necessary to pay a fine and also over Rs. 100/- for cesses in arrear. The plaintiff was therefore asked to send Rs. 125/- by Telegraghic money order at once. This postcard did not reach the plaintiff until the 24th September as he had left Munshiganj for his home in Maijpara on the 20th. On the 22nd September the plaintiff's estate was sold by auction at the revenue sale for an arrear of Rs. 7-1-8. There was Rs. 4-2-4 to the plaintiff's credit in the Collectorate accounts when the instalment of Rs. 11-8-0 was payable, and this explains why the arrear was this smaller amount. The estate was bought by Defendant No. 1, a pleader's clerk for Rs. 530. The value of the estate is over Rs. 5,000. On the 19th November 1919 the plaintiff appealed to the Commissioner of the Dacca Division to have the sale set aside under Section 2 of Act VII (B.C.) of 1868 and Section 26 of Act XI of 1859. This appeal was dismissed on the 29th May 1920 end the sale was confirmed on the 5th June following. On the 22nd January 1921 the plaintiff brought the present suit which was dismissed by the Subordinate Judge, 4th Court Dacca on the 23rd February 1922 and he has appealed to this Court.
2. The above is a statement of the facts of the case which are either now undisputed or which if disputed we hold to have been established by the evidence on the record. Where there is a variance between the evidence of the plaintiff and the second defendant we have no hesitation in accepting the plaintiff's version. The lower Court has doubted his veracity on the ground that he has made discrepant statements as to whether he wrote his first letter to Defendant No. 2 two or three days after 6th July or a day or two before receiving Exhibit 14, this defendant's post card of the 13th September. We find no such discrepancy. The sentence 'This post card letter I received a day or two after the writing of this letter' must mean that the plaintiff received it a day or two after it was written. This is the grammatical meaning of the sentence and the meaning given to it by the learned Subordinate Judge is inconsistent with the plaintiff's evidence that Exhibit 14 is a reply to his first letter. If it was a reply it could not have been received a day or two after the plaintiff wrote his letter. Also the contents of Exhibit 14 indicate that it was reply to a letter from the plaintiff received sometime previously. Exhibit 14 also shows' from its reference to several matters that this defendant's denial that he was then acting as the plaintiff's Revenue Agent is false. The contents of the second post card Exhibit 17 are not what he would have written if, as he says in his evidence, he found Touzi No. 9,299 in the Bakiat list two days before he wrote the letter.
3. The plaintiff brought this suit to set aside this revenue sale. He also asked for a declaration that the sale certificate issued to Defendant No. 1 did not affect his title to certain specified Mouzas. In the alternative he asked for a decree directing a reconveyance of the estate. There were also prayers for recovery of possession and mesne profits. The ground on which he claimed these reliefs were that the sale was void as there were no arrears of revenue at the time of the sale, that the sale was the result of a fraudulent conspiracy between the two defendants, that the sale was bad on account of failure to serve the notices required by law and that the notices did not properly describe the estate. At the hearing of the appeal six points were argued:
(1) That on the evidence it should be held that the plaintiff's money order reached the Collectorate before the time for payment expired;
(2) That the payment to the post office of Rs. 11-4-0 by Revenue Money Order was a valid payment in time;
(3) That a fraudulent conspiracy between the two defendants has been proved;
(4) That notices required by law were not served at all;
(5) That the 28th June was the date of payment of the June kist to which Section 2 of Act XI of 1859 is applicable and not the latest day of payment fixed under Section 3 of that Act;
(6) That the sale certificate conveys no title to the property in suit.
4. We hold that the first of these points has been established. The plain-tiff has proved by his own evidence corroborated by that of the Head Clerk of the Money Order Department of the Dacca Post Office that he delivered Rs. 11-4-0 with a Revenue Money Order form properly filled up and addressed to the Collector on the 26th June 1919. The time of payment is not stated in the evidence, but is given in the plaint as between 11 a.m. and 12 noon. As to what actually happened in the post office after the receipt of the money and money order there is no evidence. But it was not possible for the plaintiff to adduce further evidence on the point since it is hardly possible that any of the post office officials should have any recollection of this individual transaction and all documents relating to it were destroyed before this suit was instituted. From the Head Clerk's evidence and the rules in the Bengal Touzi Manual 1918 it appears that the ordinary procedure would be as follows : Ordinarily Revenue Money Orders are sent to the Collector the next day; but if they are given on the last date for payment, they are all hunted up and sent on that very day to the Collector. The actual money received by the Post Office is not sent to the Collector with the money-orders. A list or lists of these money orders is prepared in triplicate and also a treasury voucher (Form A/C-12) representing the total value of the money-orders as entered in all the lists. The duplicate copy of the list with the money-orders and treasury voucher are taken by the postman to the Collectorate Accountant at the treasury. On receipt of these documents they are checked and compared, and if found correct, the Accountant will at once cut off the portions of each money-order containing the coupon and acknowledgment, sign and date the money-orders (as payee) and return the paid money-orders to the postman. The Accountant will retain the lower portion of each money order including the coupon and acknowledgment, the duplicate list or lists and the treasury voucher. Forms of revenue money order and of the triplicate list are given in Appendix A of the Bengal Touzi Manual 1918 as Forms 17 and 18. After this the Treasury Officer will make the necessary adjustment of account between the Post Office and the appropriate department to whom the money is to be credited. The acknowledgments and coupon which were cut off by the Accountant will then be examined in the Collectorate. If a remittance of land revenue is received in the treasury after the sunset of the latest day of payment a note should be made across the acknowledgment in red ink that the payment is 'too late for the latest day of payment.' This as stated above is what was done in the present case.
5. Even assuming that the question whether this payment of revenue by money-order was in time or not, depended on whether the money-order reached the treasury on the 28th, we are unable to agree with the learned Subordinate Judge that the plaintiff has failed to prove that the money-order reached the Treasury before sunset of 28th June 1919. There was obviously some omission to follow the ordinary procedure either in the Post Office or the Collectorate. The learned Subordinate Judge has applied the presumption, that official acts have been regularly performed, to the acts of the Collectorate. We think on the evidence in this case it should be applied to the acts of the post office officials. It is proved that the money-order was delivered with the money on the 2oth June. The evidence of the Head Clerk of the Money Order Department that such money-orders are ordinarily sent to the Collector the next day was not attacked in cross-examination nor was any suggestion made to him of irregularity in the Post Office. The Collectorate or Treasury is only a quarter of a mile from the Post Office. A strong presumption therefore arises in the plaintiff's favour that the money-order reached the Collectorate on the 27th June. To rebut this presumption there is no evidence that it reached the Treasury after the 28th. Neither the clerk who wrote the red ink endorsement nor any other officer of the Collectorate has been examined to prove when the money-order was received. There is, therefore, in support of the defendants only the presumption that the Collectorate Officers performed their official acts regularly and that they would not have acted as they did unless the money-order had arrived too late. The presumption is far weaker and insufficient to rebut the presumption in the plaintiff's favour.
6. We also hold that the appeal should succeed on the second point, that the payment to the post office of Rs. 11-4-0 by Revenue Money Order was a valid payment in time. The learned Subordinate Judge would have decided this point in the plaintiff's favour had he not held himself bound by the decision of a Divisional Bench of this Court in Baikuntha Nath Dutta v. Ganqa Prosad Patnaik  4 C.W.N. 103. In that case a Zemindar sent his revenue by money-order through the post office at Bhadrak in the Balasore District for payment to the Collector of Cuttack. By mistake the money was sent to the Collector of Balasore and consequently reached the Collector of Cuttack too late. In our opinion this case is distinguishable from the present case on two grounds. In the first place the legal effects of a payment of revenue by money-order must depend on the rules in force at the time such payment is made. We have not been able to obtain a copy of the rules in force in 1893, when the payment was made in the case cited. There has been at least one other edition of the Bengal Touzi Manual published between then and 1918,the edition which contains the rules governing the present case. But it is clear from the judgment in that case that there was one very material difference between the system then in force and the present system. From the frequent references to payment of money in the judgment it is evident that the payment by the Post Office to the Collectorate was then a cash payment and not, as it is now, a payment by transfer in the accounts. In the case of a cash payment, in the absence of any rules to the contrary the time of the payment of revenue would be the time when the remittance was received by the Collector. In the case of a payment by transfer it is necessary to examine the rules to decide when the money paid to the Post Office is to be held to have been received by the Collector. Though the concluding paragraph of Rule 98 provides that 'the acceptance of the money order after the latest date of payment is to be treated in the same manner as the receipt of a personal payment of revenue after the latest date of payment' this is qualified to an extent almost amounting to contradiction by the footnote to Rule 102 which is in the following terms : 'It is to be understood that date of receipt of the money order in the Treasury is the date of the Treasury voucher by which it is paid and not necessarily the date on which the acknowledgment is examined, signed, or returned.' Now this Treasury voucher (Form A/C-12) is filed in, and filing includes dating, by the Postmaster before it leaves the post office. Under the existing rules therefore the question whether the remittance reaches the Collector in time depends not on receipts of the money or even of the money order form at the treasury, but on the date when the Postmaster fills in the Treasury voucher. On the evidence in the present case there is a still stronger presumption that this was done before sunset on the 28th June 1919, than there is to support the inference we have already drawn that the money order form reached the Treasury before this time.
7. But we further hold that apart from what in fact happened after the money was paid by the plaintiff at the Post Office, that payment was a good payment in time. With all respect to the learned Judges who decided Baikuntha Nath Dutt's case  4 C.W.N. 103 the question appears to us to depend, not on whether the Post Office can be considered the agent of the Collector authorised to give a valid receipt for arrears of revenue, but on whether the payment was made in a manner and at a time prescribed or sanctioned by Government. Section 50 of the Indian Contract Act, IX of 1872 provides. 'The performance of any promise may be made in any manner or at any time which the promisee prescribes or sanctions.' Illustration (d) to the section is 'A desires B who owes him Rs. 100 to send him a note for Rs. 100 by post. The debt is discharged as soon as B puts into the post a letter containing the note duly addressed to A.' Rule 61 of the Touzi Manual prescribed payment by means of revenue money order as one of the manners in which a payment of Land Revenue may be made. This rule must be read subject to the other rules as summarised in the 'Instructions for the remitter's guidance' printed on the Revenue Money Order Form. The only one of these instructions which it is suggested the plaintiff did not follow is the fifth which relates to the time of payment. 'Remittances of land revenue should be made a sufficient time before the kist day to ensure their reaching the Treasury on or before that day. Remitters are advised to allow ample margin on this account, for the acceptance of money order, for land revenue, after the kist day will not exempt an estate from sale except according to the rules applicable to personal, payment of revenue after Kist day.' We are unable to hold that the condition prevents the plaintiff from establishing that his payment at the post office was a payment in the manner and time pre-scribed so that it would take effect from the time of payment there. It might be an arguable point whether this instruction prescribes that a remittance should be made in sufficient or in ample time to ensure reaching the Treasury on or before Kist day. In the present case the payment at the post office on the 26th was in ample time to ensure its reaching the Treasury on the 28th June when it is remembered that the distance between these two places was a quarter of a mile. This brings us to the second point on which Baikuntha Nath Butt's case  4 C.W.N. 103 is distinguishable as it was there held that the plaintiff could not be acquitted from blame because he should have acted upon the warning contained in Rule 6, which is similar to the present instruction 5, and should have left ample margin of time for accidents in transit. What is an ample margin of time must depend on the facts of each case. In the present case this margin was undoubtedly ample.
8. For the respondent it is contended that Section 33 of Act XI of 1859 bars the plaintiff from taking these first two grounds because they were not declared and specified in Exhibit E, the plaintiff's memorandum of appeal to the Commissioner. But in order that this section may come into operation it is necessary that there should have been a sale for arrears of revenue. In the present case there was no arrear of revenue, and consequently the sale which was held was not a sale for such arrears.
9. As the appeal must succeed on these grounds it is not necessary to discuss at length the other four grounds urged on behalf of the appellant. On these points we are in substantial agreement with the Lower Court. The question of fraud is rendered more difficult on account of the false defences setup by both defendants. There can be no doubt that they were on more friendly terms than they admit, and also that intending purchasers were discouraged from bidding by the second defendant. But though we differ from the learned Subordinate Judge in giving more credit to the plaintiff's evidence, we agree with him in holding that there was no conspiracy to defraud the plaintiff. It is suggested that the second defendant deliberately abstained from filing a petition, which would prevent the sale, in order that the first defendant might make some money by buying in the estate and surrendering it to the plaintiff. This would be as much a fraudulent conspiracy as it would have been if they had intended to divide the estate between them. But on a consideration of all the evidence we think that the second defendant honestly believed that it was useless to file a petition on the plaintiff's behalf, unless he were in a position to pay the arrears of cesses. We believe that it was not until it was too late to stay the sale that he entered into an agreement and took action to enable the first defendant to buy the estate at a low price, and that he did this thinking he was acting in the plaintiff's interest. The trouble probably arose on the first defendant demanding an amount which the plaintiff thought unreasonable. As regards the fourth, fifth and sixth points urged before us it is unnecessary to add anything to what has been written in the judgment of the Lower Court.
10. We accordingly decree this appeal. Cross-objection taken by the first defendant on the ground that he should be allowed his costs necessarily fails and is dismissed. The plaintiff will be granted a decree setting aside the revenue auction sale of Estate No. 9299 of the Dacca Collectorate held on the 22nd September, 1919, and for declaration of his title to this estate and for recovery of possession and for mesne profits which will be assessed in the Lower Court.
11. The plaintiff will get his costs both in this and the Lower Court from Defendant No. 1. Defendant No. 2 who did not appear in this Court will bear his own costs in the Lower Court.