1. This is an appeal against the judgment of the Subordinate Judge in favour of the plaintiff. The action was brought to set aside the sale which had been held of certain premises at Dum Dum for arrears of revenue.
2. A very large number of issues were raised in the case all of which were decided in favour of the defendant, excepting the one decided by the Judge in favour of the plaintiff, i.e., that no arrears were due.
3. The sale was held on March 16th, 1903, and was expressed to be in respect of arrears due on June 28th, 1902.
4. The holding was one on which revenue has been assessed at the time of the Permanent Settlement. In 1871, the Board of Revenue fixed the latest date by which rents of all descriptions of tenures should be paid and duly gave notice of the dates so fixed under the provisions of Section 3 of Act XI of 1859. The latest day fixed was June 28th. The tenant of the holding, the subject of the present sale gave, in 1874 On the18th February 1874-Rep a kabuliyat under which he undertook to pay an annual jama to the Government, of Rs. 14-0-11 (which was the amount of the revenue assessed on the estate by the 28th June on each year. The learned Judge has held that as the jama for 1902 was payable by June 28th, 1902, there was nothing in arreav until after that date was passed the Board having fixed 28th June as the last day for payment of arrears the revenue by virtue of Section 2 of the Act was not in arrear until July 1st, 1902; the tenant, therefore, of the holding had until 28th June 1903 for the payment of what became an arrear on July 1st, 1902. If that. were so on March 16th, 1903, the time had not arrived at which the holding became liable to sale under Section 3 of Act XI of 1859 as the tenant would have until the next 28th June, i.e., June 28th, 1903, within which to pay.
5. The argument is ingenious but in our view it is not sound.
6. The settlement is made on February 18th. Therefore, in case of an ordinary contract of lease the annual jama would be payable on February 18th in each successive year, but under Rule 7 of Part III, Chap. 16 of the Survey and Settlement Manual, a settlement of revenue should ordinarily take effect from the beginning of the financial year next after that in which the proceedings of the Settlement Officer have been completed. If that rule be applied, the settlement dates from April 1st, 1874, and the jama would ordinarily be payable on April 1st each year.
7. If it were ordinarily payable on April 1st each year, then the latest day of payment under the Board's proclamation of 1871 is June 28th.
8. In our opinion the undertaking in the kabuliyat does not have the effect of extending the time for the payment of the revenue but is nothing more than a promise by the tenant that he will pay the revenue ordinarily payable on the first day of the financial year by the latest day of payment as fixed by the Board's proclamation.
9. Section 2 of the Act of 1859 is clearly applicable to monthly instalment and in revenue-paying estates and does not apply to a yearly jama of tenures such as the one now under consideration.
10. The revenue, therefore, being unpaid after June 28th the Collector was empowered under Section 11 of Act VII of 1868 to sell up the holding.
11. The result is that we disagree with the view taken by the Sub-Judge. The appeal must be allowed and the plaintiff's suit dismissed with costs.