G.N. Das, J.
1. These two appeals arise out of Title Suit No. 95 of 1941 of the Court of the 1st Munsif at Burdwan. Second Appeal No. 1773 of 1943 is at the instance of the plaintiff. Second Appeal No. 1827 of 1943 is at the instance of the defendant. The suit was for declaration of the plaintiff's exclusive title and possession in respect of Cadastral Survey Dags Nos. 81 and 33 of khatian No. 253 of mouza Ichlabad. The plaintiff's allegation is that the plaintiff purchased the residuary share in touzi No. 147 of the Bardwan Collectorate in January 1936, the residuary share being 13 as. 6 gds. 3 karas and 3 tils, that the plaintiff obtained symbolical possession on 24th May 1936, that there was a separate account No. 16 comprising 2 gds. 2 karas 2 krantis and 2 tils share in the aforesaid touzi, the disputed lands being the lauds of the said separate account, that the defendant's predecessor held the said separate account which was closed and later on the previous owners of separate accounts Nos. 1 and 2 had their own separate account reopened, the result being that the residuary share including separate account No. 16 was brought to sale and was purchased by the plaintiff, the plaintiff's purchase taking effect under Section 28 of the Revenue Sale Law on 29th September 1935, that the defendant had failed to restore possession of the disputed lands and the plaintiff accordingly prayed for declaration of his title to the said dags and for possession of the same.
2. The defence to the suit was that there was no closure of separate account No. 16 as alleged in the plaint either in fact or in law, that consequently by this revenue sale at which the plaintiff purchased separate account No. 16 which had never been amalgamated with the residuary share did not pass by the sale.
3. The trial Court was of the opinion that the effect of the order of the Collector dated 3lst March 1932 viz., EX. 9 was to close all the separate accounts including separate account No. 16 and although there was no sale as contemplated by Section 14 of the Revenue Sale Law, as there was no attempt to supersede the order of the Collector closing the separate accounts, in proper proceedings, separate account No. 16 ceased to exist and was amalgamated with the residuary share. The sale at which the plaintiff purchased therefore passed separate account No. 16 and the plaintiff had a good title to the disputed lands. In the result the trial Court passed a decree declaring the plaintiff's title to the disputed land with the exception of the superstructures standing thereon and directed delivery of possession of the suit lands, the defendant being directed to remove the buildings standing on the disputed land. Against the decision of the trial Court, the defendant preferred an appeal.
4. The learned District Judge who heard the appeal concurred with the view of the trial Court as regards the effect of the revenue sale with this modification that the defendant was to remain in occupation of the buildings on payment of fair and equitable rent. As stated already two appeals have been taken against the decision of the learned District Judge. The defendant in appeal raises the question whether by the Revenue sale the plaintiff acquired a good title to separate account No. 16, that is, to the lands in suit. The plaintiff's appeal concerns that part of the order of the learned District Judge which maintains the defendant in possession of the superstructures on payment of fair rent.
5. We shall first deal with the defendant's appeal, viz., Appeal No. 1827 of 1943. Dr. Sen Gupta appearing on behalf of the defendant has contended that as there was no sale of the entire estate after the collector had directed separate accounts to be closed in March 1932 the rights of the holders of separate account were not in any way affected by the order of the collector dated 31st March 1932 directing the separate accounts to be closed. As such in the absence of any thing to show that there was any other valid basis for the alleged closing of the separate accounts, the effect of the order of the collector dated 31st March 1932 was to maintain the existence of separate account No. 16 and as such the revenue sale at which the plaintiff purchased did not pass that share.
6. The question as to the effect of an order made by a Collector under Section 14, Revenue Sale Law (Act XI  of 1859) depends on the view to be taken of Sections 13 and 14 of the said Act. Section 13 of Act XI  of 1859 states that after separate accounts have been opened in respect of an estate, if the estate is in default because of non-payment of revenue in respect of any share the Collector shall declare the share or shares of estate which are in default to be put up to sale, and if at the sale the bid offered is not sufficient to liquidate the arrears the Col-lector will under Section 14, Revenue Sale Law, stop the sale and declare that the entire estate shall be brought to sale at a future date unless the other recorded sharer or sharers purchase the share in arrears within 10 days by paying the arrears due from the said shares. Section 14 does not expressly provide for the closing of separate accounts. It merely directs that the Collector will declare that the entire estate will be brought to sale if the co-sharers do not pay up the arrears in respect of the defaulting shares. The practice of closing separate accounts is to be traced to the decision in the case of Haji Mutsaddi Mian v. Mahomed Idris, 19 C.W.N. 764 : (A. I. R. (2) 1915 P. C. 177) to which our attention was drawn by Mr. Bose appearing for the respondent. The passage which occurs at p. 767 of the judgment of the High Court runs as follows:
'It is admitted that the Collector was bound to close all the separate accounts before he could sell the entire estate under Section 14.'
The judgment of this Court was merely affirmed on appeal by the Judicial Committee. The practice, therefore, rested on a concession made by the parties before the Hon'ble High Court. As already indicated there is no express provision in the Act itself for the closure of all separate accounts. This is done in the Collectorate for the purposes of convenience, with a view to find out whether the estate as a whole is in default or not. This view is in accord with a decision of this Court in the case of Narendra Nath Roy v. Midnapore Zemindary Co. Ltd. : AIR1940Cal115 Mitter J. observed thus:
'The Act does not contain any provision for closing separate accounts. Section 14 speaks only of a declaration by the Collector; makes the same a necessary preliminary step for putting at a future date the entire estate to sale.'
If in point of fact, the contemplated sale does not take place or is set aside in a competent proceeding, the effect of the declaration made by the Collector loses all its force and the parties are restored to the position which they occupied before the declaration was made by the Collector. Assuming that there was a statutory justification for the closing of the separate accounts, for which as we have already said there was none, the order of the Collector dated 31st March 1932 closing the separate accounts ceased to be effective as the contemplated sale never took place. Separate account No. 16, therefore, survived the aforesaid order of the Collector. It was not necessary for the recorded proprietors of that account to take any proceeding to have the order of the Collector vacated, as was erroneously thought by the Courts below. The argument in so far as it proceeded on the order of the Collector dated 31st March 1932 vide, Ex. 9, does not support the plaintiff's alleged title to separate account No. 16. In the Courts below the plaintiff relied also on the entry in the D Register, EX. 8 and it was urged on his behalf that the entry in the D Register must be taken to be prima facie correct. A reference to EX. D shows that serial No. 77 refers to separate account No. 16. There is an entry 'closed' against the serial number. That entry is undated and no reference is made to any order of any officer justifying the entry. No order of any competent officer has also been produced. Serial No. 17 and a few other serial numbers against which there is a similar entry 'closed' are struck out and a note is made vide serial No. 83. Serial No. 83 states that the plaintiff is the proprietor of 13 as. 6 gds, 3 karas 0 krant
Reference is made then to Mutation cases Nos. 561 and 563 of 1936-1937. This is followed by a remark 'in lieu of Ali Mohammad and others by purchase at revenue sale.' A fair inference to draw from these entries is that serial No. 77 was closed at the time when serial No. 83 was placed on the D Register as a result of the mutation cases in 1936-1937 after the plaintiff's purchase at the revenue sale now in question. This does not support the view that the closure of separate account No. 17 proceeded on any order of the Collector either under Section 14 of Act XI  of 1859 as mentioned in the plaint or on any order under Section 72 or 74A, Land Registration Act (Act VII BC 1876). In fact there is nothing on the record to show that any order was passed under Section 72 or 74A, Land Registration Act which is the only procedure for the closure of separate accounts. Mr. Bose appearing for the respondent wanted to contend that as the D Register shows the existence of a residuary share in respect of 13 as. 6 gds. 3 karas 0 krant
7. Mr. Bose at the close of his argument, prayed that even if the above view be taken, as there was nothing to show that separate accounts were opened under Section 10 of Act XI  of 1859 the plaintiff has admittedly an undivided share in the disputed land which forms a part of the lands comprising the touji and as such a declaration may be made in respect of his undivided residuary share in respect of the disputed land. This contention cannot be given effect to in view of the specific case made in the plaint that the disputed lands are the specific lands of separate account No. 16 and the prayer by the plaintiff for declaration of his exclusive title to and possession of the said lauds. A further difficulty stands in the plaintiff's way, viz. that the other recorded co-sharers in the touzi are not before the Court. Mr. Bose prayed for leave to amend the plaint to raise this case and to add the co-sharers as parties. In our opinion such a prayer cannot be acceded at this late stage and in view of the course of the trial in the Courts below.
8. The result, therefore, is that Second Appeal No. 1827 of 1943 succeeds. The judgments and decrees of the Courts below are set aside and the plaintiff's suit must stand dismissed with costs in all Courts.
9. Second Appeal No. 1173 of 1943--As the plaintiff has been found to have no title to the disputed lands this appeal must also fail. This appeal is therefore dismissed but there will be no order for costs.
Das Gupta, J.