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Ananga Mohan Roy Chowdhury Vs. Kalidas Roy and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1947Cal283
AppellantAnanga Mohan Roy Chowdhury
RespondentKalidas Roy and ors.
Cases ReferredAmbica Lal Roy v. Secy. of State
- .....could hold the sale. the contention of the plaintiffs appellants is that in respect of this touzi revenue had to be paid once annually according to engagement, and the last date for payment of the annual revenue, according to engagement, was 80th april of each year. their contention, therefore, is that the revenue had not become due according to engagement even on 24-3-1938. according to engagement it would have become an arrear on 1-5-1938 and the sale could not be held by the collector in law till after 28-6-1938.15. the first question, therefore, for consideration is what was the engagement when the estate was permanently created. the evidence discloses that the estate now in question i3 a part of a parent estate which was also numbered 372 of the tipperah collectorate. that.....

K.C. Chunder, J.

1. This appeal arises out of a suit brought by the plaintiff who was the original proprietor of touzi No. 372 of the Tipperah Collectorate to set aside a revenue sale held on 24-8-1938, for non-payment of arrears of land revenue due up to Agrahayan of the corresponding Bengali year. The Subordinate Judge, 2nd Court, Tipperah, held that the sale was not to be set aside and this appeal has been filed by the plaintiff in this Court.

2. Three points have been urged in the appeal. The first is that the revenue sale was null and void as there were no arrears of revenue, the kist dates for which the sale was held being wrongly calculated. The second point is that 30 clear days did not elapse between the affixing of the Section 6 notice and the holding of the sale. The third point urged is that there has been substantial injury by reason of this illegality or irregularity.

3. We take up the question of the kist dates first. A short history will make things clearer. The first document to start with is a kabuliat of 1269 B.S. for one year,-the revenue being payable in four kists, namely, August, November, January and March. The kists were: August...Rs. 198, November...Rs. 435, January...Rs. 395 and March...Rs. 236-13-6 pies. Road cess was payable in addition. That document shows that it was held by the Government as a zemindar, that is, it was a part of the khas mahal, and it is obvious that for arrears of land revenue the Government had come to possess this property and it was settled temporarily with one Abhoy Charan Roy. Next year, that is, in 1863, the property was put up to auction for permanent settlement. The sale certificate which is Ex. 1-A gives the particulars of the mahal and the total revenue fixed. It does not say anything about the dates of different kists.

4. We next find that the touzi ledger Ex. J series beginning with 1882 A.D. gives the different kists of this property, and the kists are the same as those mentioned in the kabuliat of 1269 B.S. Out of the parent estate, under the Estates Partition Act, another smaller estate consisting of 5 annas 6 gandas 2 karas 2 krants share was carved out forming Touzi No 2934 The remaining portion became Touzi No. 372. This Touzi No 2934 was subsequently sold by private treaty and we mention this fact as it will become necessary later on.

5. It has been urged by, Dr. Sen Gupta that because a lump revenue is mentioned in the sale certificate Ex. 1-A and as the purchase according to that sale certificate was to be deemed to take effect from 1st May 1863, we should hold that the revenue payable will, on completion of each year, become due on 30th April and it would become an arrear on 1st May, and therefore at the time of the sale, which we have mentioned was on 24th March, there will be no arrears of revenue at all.

6. Our attention has been drawn to Ex. 10 series and the evidence of the plaintiff's witness No. 7 the Record-keeper of the Tipperah Collectorate, from which it is clear that the original Dowls or the kistibundi engagements of this estate are not available. The onus is on the plaintiff appellant to prove that kist dates were as stated by him. The touzi ledgers, Ex J series are official papers kept in due course of business and omnia (sic) rite esse acta is a well-established principle as regards official acts. Courts rep se great confidence on the fidelity and accuracy of official documents kept in due course of business an properly and regularly kept. Nothing has been shown against these touzi ledgers. To discharge the onus that is on the plaintiff and to rebut the presumption that arises from such old touzi ledgers acted upon for so many years, the only piece of evidence we get is the sale certificate in which there is no mention of any kist at all. But we get it that previous to this sale same four kists are mentioned in the kabuliat as given in the subsequent touzi ledgers. The absence of those or kistibundi engagements previous to the sale do not, in our opinion, go to show that there was a new and fresh settlement unconnected with the previous settlements in 1863 with the predecessors of the plaintiff. Under these circum-stances, it has not been established by the plaintiff that the kist dates were different from those mentioned in the touzi ledgers and that the Collector did not hold the sale on the proper date after the arrears of revenue had accrued. The contention urged by Dr. Sen Gupta must therefore fail.

7. We come now to the second point. Under Section 6, Bengal Land Revenue Sales Act (Act 11 [XI] of 1859) it is necessary that thirty clear days must elapse between the date of affixing the notification in the office of the Collector and the date of the sale. Thirty clear days would mean that the date on which the notice was affixed and the date on which the sale was held must be excluded. In the present case, the report of the process server on Ex. S which is a certified copy of the notification of sale shows that the notices were hung up at the Collector's office on 22-2-1938 The sale was held, as we have said, on 24-3-1938 February had twenty eight days as it was not a leap year and therefore thirty clear days had not elapsed between the affixing of the notice and the holding of the sale.

8. Dr. Sea Gupta has urged before us that it is an illegality which makes the sale null and void. In Lala Mobaruk Lal v. Secy. of State ('85) 11 Cal. 200 it was held by the majority of Judges of the Pull Bench, Tottenham J. dissenting, that

non-compliance with the provisions of Section 6, Bengal Lund Revenue Sules Act. (Act 11 [XI] of 1859) is not a mere irregularity and is not one of those errors in procedure which are intended to be cured by Section 8, Bengal Act 7 [VII] of 1868. Where a sale for arrears of revenue has been held and non-compliance with Section 6 has been found such n sale is null and void as not being a sale under the provisions of Act 11 [XI] of 1859.

After this decision, the Judicial Committee of the Privy Council in Tasadduk Rasul Khan v Ahmad Husain ('94) 21 Cal. 66 pointed out that non-compliance with the provisions of Section 290, Civil P.C., (corresponding to Order 21, Rule 68 of the present Code) does not make the sale a nullity but is an irregularity within the meaning of Section 311 (corresponding to Order 21, Rule 90), Civil P.C. There also the same question arose of thirty clear days not having elapsed. Both these decisons and other decisions of this Court were considered by Coxe and N.R. Chatterjee JJ. in Gangadhar Das v. Bhikari Charan ('12) 16 C.W.N 227 and their Lordships held that the fact that the proclamation of sale was affixed in the Collectorate less than thirty days before the date of the sale in contravention of the provisions of Section 6 of the Act (11 [XI] of 1859) does not mike the sale a nullity. The sale in such a, ease is a sale under the provisions of the Act and the restrictions imposed by it on the right of the defaulter to have the sale set aside apply. The restrictions imposed are by Section 33, Land Revenue Act. Their Lordships further pointed out that the decision in Lala Mobaruk Lal v. Secy. of State ('85) 11 Cal. 200 was not binding by reason of the decision of the Judicial Committee of the Privy Council in Tasadduk Rasul Khan v Ahmad Husain ('94) 21 Cal. 66 and of this High Court in Gobind Lal Roy v. Ramjanam Misser ('94) 21 Cal. 70.

9. Under the circumstances, we are unable to accept Dr. Sen Gupta's argument that noncompliance with the provisions of Section 6 of the Act, as thirty clear days had not elapsed between the affixing of the sale proclamation and the holding of the sale, did make the sale a nullity but it was an irregularity to which Section 33, Land Revenue Sales Act applied. Section 33 requires two things; first, that the ground taken in the civil Court must be declared and specified in an appeal made to the Commissioner under Section 2. Bengal Land Revenue Sales Act, 1868. The second requisite is that the plaintiff has sustained substantial injury by reason of the irregularity complained of. It was pointed out that grounds Nos. 4 and 6 before the Commissioner were the grounds which relate to the point arising in the present suit. Ground No. 4 is : 'For the sale was premature and as such is liable to be set aside.' Ground No. 6 runs thus : 'For that there was no due or proper service of notices under Sections 6, 7 and 13 and this is abundantly proved by paucity of bidders.' From the context it will appear that ground No. 6 was concerned with the question of suppression of notices etcetera rather than the irregularity now pointed out. But ground No. 4, namely, that the sale was premature is capable of being interpreted as referring to the ground now taken in the civil Court. It has been urged by Mr. Das, that what is meant by the ground being declared and specified is that it should be given with all fullness and definiteness, that is, the particular reason for which the sale is now being said to be premature has to be stated before the Commissioner. We are unable to accept that contention. There is a decision of a Divisional Bench of this Court by N.R. Chatterjea and Newbould JJ. in the case reported in Ambica Lal Roy v. Secy. of State 5 A.I.R. 1918 Cal. 673 in which their Lordships pointed out : The words 'unless such ground has been declared and specified' in Section 33 in the Act of 1859 do not include the reasons for the ground. Therefore, where an objection to a revenue sale was taken in an appeal to the Commissioner, on the ground that the purchase by the Collector under Section 58 of the Act Was illegal, the same objection may be taken in the civil Court though the 'reason given for it in the appeal may not be same as that which is urged in the suit.' Mr. Das drew our attention to the Commissioner's order to show that the reasons urged before him were not the same as in the present case. Both these points are covered by the decision, above referred to.

10. We, therefore, enter into the question of substantial injury. Two things are requisite; firstly, there must be substantial injury and secondly, this substantial injury must be due to the irregularity now complained of, that is a connection must be established between the substantial injury and the irregularity complained of. The case for substantial injury is that the property was sold at Rs. 17,000 whilst its proper price should have been much more. The learned Subordinate Judge has found, on examining all the facts and evidence in the case, that there was no substantial injury at all. It appears that the plaintiff first valued the property in the appeal before the Commissioner at Rs. 70,000. Then he reduced, during his evidence in the civil Court, the alleged value of this property to Rs. 50,000. In the plaint the annual income of the property has been stated to be Rs. 998. Therefore, at' the sale more than 17 times the annual value has been fetched. He cited as a witness one Md. Wali Choudhury (P.W. 6) who valued the property at Rs. 30,000 but the valuation made by him was based on wrong materials. According to him, the annual income would be Rs. 1800, that is, about double the income mentioned by the plaintiff himself in his plaint. His valuation of the property, therefore, is not worth serious consideration.

11. The only other piece of evidence to show under-valuation at the sale is that the one-third share which now forms Touzi No. 2934, as we have previously said, was sold by private treaty in 1925 for Rs. 21,000. The evidence goes to show that 1925 was a year in which jute was selling at more than three times it was fetching in 1938. We further get the evidence that 1938 and the period thereabout was a period of depression as regards the value of property. The document, Ex. H, by which the sale of the one-third share was effected goes to show that not only the property but also other rights were transferred along with it, namely, arrears of rent, outstanding decrees, against tenants, and an amount claimed to be due from tehsildar who had not rendered account yet. It is therefore no good criterion for determining the proper value of this property. There is little evidence to justify any contention that any substantial injury was caused. We agree with the finding of the learned Subordinate Judge that there was no substantial injury.

12. The next point is whether this irregularity as regards Section 6 notice was the cause why no higher price was fetched at the sale. The only witness examined on the point was Md. Wali Choudhury, P.W. 6. His version was that, he wanted to purchase this property though his evidence shows that he did not know the proper income et cetera. He consulted Rasamay Burdhan of the Tipperah Loan Office and Rasamay dissuaded him from going in for the property on the ground that there was a defect in the service of a notice. He does not say which notice or what defect. The learned Subordiate Judge has pointed out from the evidence that Rasamay himself the very next day put forward bids at the sale and was one of the parties who raised the bids. Md. Wali Choudhury's evidence further is that he consulted Mukunda Babu who was the plaintiff's pleader in the present case. Mukunda Babu's clerk was examined and on this part of the evidence we have no corroboration at all. According to Md. Wali Choudhury, Mukunda Babu told him that 'he should not risk in such misadventure' but Mukunda Babu did not tell him that the records should be looked into or the correctness of the information tested. It would appear further that there is very grave doubt whether this gentleman would have been at all in a position to bid for and, if successful, deposit a quarter of his accepted bid. The learned Subordinate Judge has not been able to rely upon this witness and after giving proper weight to all the circumstances and careful consideration of the evidence we have also not been able to accept this evidence as reliable. The learned Subordinate Judge has found that the defect or irregularity in the service of Section 6 notice did not cause any substantial loss and we also hold that the learned Subordinate Judge's finding on the point was correct.

13. As all the three points fail, the appeal is dismissed with costs.

Mitter, J.

14. I agree with my learned brother and wish to add a few words. The suit is a suit for declaration that the revenue sale of Touzi No. 372 of the Tipperau Collectorate held on 24-3-1938 was a nullity on the ground that the Collector had no jurisdiction to sell the said property on that date, and alternatively to set aside the said sale on the ground that it was held in contravention of the provisions of the Bengal Land Revenue Sales Act (Act 11 [XI] of 1859). The sale was advertised for the sum of Rupees 326-12-0. According to the Touzi Ledger-Ex J (2)-this sum was made up of the arrears of the second kist amounting to Rs. 48-1-4 and the amount payable for the third kist which was Rs. 278-10-8 of the year 1937-1938. By the word 'kist' I mean the kists fixed by the Board of Revenue under Section 3 of the said Act within which all arrears are to be paid. The following dates have been fixed under that section by the Board of Revenue, 28th June, 28th September, 12th January and 28th March. According to the Touzi Ledger, therefore, the sum of Rs. 48-1-4 had to be paid on or before 28-9 1937 and the sum of Rs. 278-10-8 on or before 12-11938. The sale was, as I have already stated, advertised for and was held on 24-3-1938. The question is whether on 24-3-1938 the Collector could hold the sale. The contention of the plaintiffs appellants is that in respect of this touzi revenue had to be paid once annually according to engagement, and the last date for payment of the annual revenue, according to engagement, was 80th April of each year. Their contention, therefore, is that the revenue had not become due according to engagement even on 24-3-1938. According to engagement it would have become an arrear on 1-5-1938 and the sale could not be held by the Collector in law till after 28-6-1938.

15. The first question, therefore, for consideration is what was the engagement when the estate was permanently created. The evidence discloses that the estate now in question i3 a part of a parent estate which was also numbered 372 of the Tipperah Collectorate. That parent estate bore a revenue of Rs. 1228-6-0. In 1911, there were proceedings under the Estates Partition Act and the parent estate No. 372 was partitioned into two estates. 10 annas 13 gds. 1 kara and 1 krant share thereof, namely of the parent estate, was constituted into a new estate and it was given the number 372 of the Tipperah Collectorate; that is the estate with which we are concerned. The remaining 5 annas 6 gds. 2 karas and 2 krant share of the parent estate was constituted into another estate and was numbered 2934 of the Tipperah Collectorate and the revenue of the parent estate was apportioned between the two. These facts are admitted. It is, therefore, necessary to trace the history of the parent estate No. 372 of the Tipperah Collectorate. From the two documents on the record (EX. 11) the kabuliat executed by Abhoy Charan Roy and another in favour of Her Majesty the Queen on 12-7-1862 and from Ex. 1 (a)-a sale certificate dated 24-12-1863 I draw this inference, namely, that the parent estate No. 372 was a permanently settled estate even before the year 1862. But on or before the year 1862, the Government had become the proprietor of that permanently settled estate, for in the kabuliat Ex. 11 it is stated that Mahal Mouza Ahmedpur, which is the parent estate, was then in the possession of the Government in zamindary right. In that year the Government let out in ijara for one year the said estate to Abhoy Charan Roy and another in consideration of the annual payment, divided into kists, of the sum of Rs. 1254-40. That transaction does not represent the creation of a temporary settled estate but an ijara of the rights of the Government as proprietor of an estate or zamindary.

16. It appears that the Government intended to sell to the highest purchaser at an auction sale its zamindary rights. Such a sale was held and Abhoy Charan Bardhan and another offered the highest bid of Rs. 10975. The sale certificate is Ex. A That sale was confirmed on 10-12-1863 and the sale certificate was issued on 24th December of that year. The sale, according to the sale certificate, was to take effect from 1-5-1863. The meaning of this sale certificate is that the Government lost its rights as zamindar or proprietor of an estate from that date, namely, 1-5-1863 and the rights of Abhoy Charan Bardhan and another to that zamindary accrued from that date. That date, 1-5-1863, has nothing to do with the payment of revenue. In the sale certificate the description of the mahals sold is given. It is Mouza Ahmedpur appertaining to 10 annas 13 gds. 1 kara 1 krant Hissya, Pergana Bardakhat. The name of the former proprietor is stated to be Her Majesty the Queen Empress, Zamindar. The revenue is stated to be Rs. 1216-3-0 and road cess Rs. 12-30, the total being Rs. 1228-6-0. The-meaning of this document is that Her Majesty the Queen Empress parted with her zemindary in a revenue paying estate of which the revenue was Rs. 1228-6-0 from 1-5-1863. An attempt was made by the plaintiffs appellants to find out the Doul Kist Bandi of the parent estate of the time of the permanent settlement. The answer given by the Collector was that no such document could be traced. That is not unusual for in most oases Doul Kist Bandis of permanently settled estates-are not available at this distance of time.

17. In these circumstances, I cannot give effect to the contention that in respect of this touzi revenue had to be paid in one annual instalment and that the date of payment of that annual instalment of revenue was 30th April of each year. I have already pointed out that the date 1-5-1863 mentioned in the sale certificate is the date from which on transfer the zamindary right passed from Her Majesty, the Queen Empress, to the auction-purchaser, Abhoy Charan Bardhan and another. My learned brother has pointed out that in these circumstances the onus which is on the plaintiffs appellants had not been discharged. Moreover the secondary evidence on the record about the kists confirms the view that revenue was payable in four kists. There is the document Ex. J of the year 1882 which is a good piece of evidence in the absence of any other evidence to the contrary to show that the arrears of revenue was payable within the lasts mentioned in that document. There were arrears and those arrears had to be paid on or before 12-1-1938-the kist date fixed under Section 3, Bengal Land Revenue Sales Act. The Collector, therefore, had jurisdiction to sell the property on 24th March following.

18. With regard to the other points which have been foully dealt with in the judgment of my learned brother I fully agree. With regard to one point I go further and I hold that Md. Wali Choudhury is not a witness of truth. I cannot believe him when he states that he was an intending bidder and he was dissuaded from going to the Collector's office on the date of the sale by reason of 'some defects' that had been pointed out to him by Rasamay Bardhan. The evidence shows that he made no enquiry, which a prospective bidder would ordinarily make about the value of the property. His evidence shows that he had no idea about the net profit of the mahal. That is quite apparent. The plaintiff admits in his plaint that the net profit was Rs. 998, but he, on the other hand, states that the net profit was somewhere near Rs. 1800. The evidence also discloses that he was not a man of such means as he would be able to purchase the property. I consider his evidence to be unsatisfactory in all respects and refuse to give credence to what he has said. With regard to the evidence of valuation the evidence is for all practical purposes nil. The plaintiff himself deposes and his deposition is that the value of the property on the date of the sale was Rs. 50,000. His cross-examination shows that that was not even his estimate but it was what other people thought when it was known that he had lost property at the revenue sale.

19. The learned advocate for the appellants relied upon the sale of touzi No. 2934 in the year 1925. The document shows that the price of Rs. 21,000 was not paid for the property alone but there were other considerations, namely, that the consideration covered the sale of arrears of rent, decrees that the vendor had obtained against his tenants as also the sale of the vendor's right to proceed against a dishonest Gomosta. But there is no evidence as to what part of Rs. 21,000 was paid for all those matters and what for the property. That I say in addition to what my learned brother has said regarding the transaction represented by the said document.

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