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Nrisinha Kumar Sinha Vs. Shyam Sundar Debanshi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberA.F.A.D. Nos. 214 and 215 of 1946
Judge
Reported inAIR1950Cal196
ActsBengal Village Choukidari Act, 1870 - Sections 6, 30, 50, 52 and 53 to 55; ;Bengal Land Revenue Sales Act, 1859 - Sections 5, 6, 33 and 54
AppellantNrisinha Kumar Sinha
RespondentShyam Sundar Debanshi and anr.
Appellant AdvocatePurushottam Chatterjee, Adv.
Respondent AdvocateHari Prasanna Mukherjee, Adv.
DispositionAppeal dismissed
Cases ReferredRaghub Chunder Banerjee v. Brojonath Koondoo
Excerpt:
- .....under section 59 of the said act. thereafter without serving a notice under section 5, bengal land revenue sales act, 1859, the said choukidari chakran lands were advertised for sale after the issue of a notice under section 6, bengal land revenue sales act 1859. the sale took place on 19th september 1939 and the disputed lands were purchased by defendant 1, at the highest bid. the plaintiff who owned 4 as. 8p. share in the disputed lands instituted this suit for setting aside the sale and for recovery of possession, there was an alternative prayer for reconveyance if the prayer for setting aside the sale could not be entertained. in view of the findings arrived at by the courts below the alternative prayer has not been pressed in this court and no reference need be made to the.....
Judgment:

G.N. Das, J.

1. This appeal is by the plaintiff. The plaintiff's case is that the disputed lands are the choukidari chakran lands situate in mouja Jamuni and Kanaipur appertaining to touji no. 1401 of the Birbhum Collectorate. The previous number of the touji was No. 139 of the Murshidabad Collectorate. On 29th June 1939 a requisition for payment of dues under the Village Choukidari Act was issued under Section 59 of the said Act. Thereafter without serving a notice under Section 5, Bengal Land Revenue Sales Act, 1859, the said choukidari chakran lands were advertised for sale after the issue of a notice under Section 6, Bengal Land Revenue Sales Act 1859. The sale took place on 19th September 1939 and the disputed lands were purchased by defendant 1, at the highest bid. The plaintiff who owned 4 as. 8p. share in the disputed lands instituted this suit for setting aside the sale and for recovery of possession, There was an alternative prayer for reconveyance if the prayer for setting aside the sale could not be entertained. In view of the findings arrived at by the Courts below the alternative prayer has not been pressed in this Court and no reference need be made to the allegations on which the alternative prayer was founded. The validity of the sale was attacked on two grounds: (1) That the notice under the provisions of Section 5, Bengal Land Revenue Sales Act, 1859, was neither issued nor published and (2) that in the requisition under Section 54 of the said Act the disputed lands were not properly described. The same misdescription attached to the notification under Section 6, Bengal Land Revenue Sales Act, 1859 and that in consequence of misdescription the disputed lands were sold at an under valuation.

2. The defence of the contesting defendant was (1) that the suit was bound to fail on account of non-joinder of the other co-sharers of the plaintiff; (2) that the service of a notice under Section 5, Bengal Land Revenue Sales Act, 1859 was not necessary in order to bring to sale choukidari chakran lands under the special provisions of the Village Choukidari Act, 1870; (3) that there was no misdescription of the lands sold and even if there was any the misdescription was not such as to justify a reversal of the sale.

3. The trial Court dismissed the plaintiff's suit and the judgment of the trial Court was affirmed on appeal. The findings of the lower appellate Court are (1) that there was no defect in the frame of the suit because of the non-joinder of the other co-sharers of the plaintiff ; (2) that the misdescription was not sufficient to justify a Betting aside of the sale and (3) that notice under Section 5, Bengal Land Revenue Sales Act, 1859, was not necessary.

4. As I have already stated, this appeal is at the instance of the plaintiff. Mr. Purushottam Chatterjee appearing on behalf of the plaintiff appellant has contended in the first place that there was misdescription both in the requisition under Section 54, Village Choukidari Act 1870 and in the notification under Section 6, Bengal Land Revenue Sales Act, 1859, and the misdescription was such as to justify the plaintiffs' prayer for a reversal of the sale. In the second place, it is contended that the service of a notice under Section 5, Bengal Land Revenue Sales Act, 1859, was an essential prerequisite to a sale of the choukidari chakran lands under the provisions of Section 55, Village Choukidari Act.

5. The first contention turns on the provisions of Section 54, Village Choukidari Act, 1870, and Sections 6 and 13, Bengal Land Revenue Sales Act.

6. Section 54, Village Choukidari Act, 1870, states that whenever an assessment has been made in respect of a choukidari chakran land and if the assessment is in arrears for a space of 15 days after it has become payable, the collecting member of the Panchayet shall forward to the Collector of the district in which the lands are situate:

'a notice of the amount of such arrears and the name of the person liable to pay such assessment in the Form in Schedule D annexed to the Act.'

7. Turning to Form D the form requires that the amount in arrears and the name of the person liable to pay the same and the village in which the lands are situate should be stated. The requisition does not require to specify the details of the lands in respect of which arrears are claimed. It cannot therefore be said that the requisition which did not correctly specify the area of lands, was not in proper form. The defects in the notification under Section 6, Bengal Land Revenue Sales Act, 1859, are stated to be that the areas of the Choukidari chakran lands in the two moujas have been grossly misstated and the names of the transferees of the original holders of these lands have not been specified. It is merely stated that the defaulters are Rajendra Chandra Pal and others. It is, however, to be noted that the serial number which the choukidari chakran lands bear in the assessment list has been correctly stated and that there are no other choukidari chakran lands in the two villages in question. Both the Courts below have found that the identity of the disputed lands was beyond question. Incorrect specification of some of the details in the notification under Section 6, Bengal Land Revenue Sales Act is not per se such a misdescription as would entitle the civil Court to set aside a sale under Section 33, Bengal Land Revenue Sales Act, 1869. The object of a notification under Section 6, Bengal Land Revenue Sales Act is obviously to apprise likely purchasers of exactly what is going to be sold and to ensure thereby reasonable competition amongst bidders in order that the defaulter may have a fair value for the property which is sought to be sold. The rules and forms which have been prescribed by the Board of Revenue in this behalf have no statutory force but are in the nature of administrative behests and mere non-compliance with them is not sufficient to vitiate the sale. Whether the misdescription is such as would render the sale liable to be set aside depends on the particular facts of each case, the test being whether the specification of the property put up for sale is sufficiently definite for the purposes already mentioned, The Court has to see if the particulars given are sufficient to identify the property and give prospective bidders information as to what they were going to bid for. The above view is supported by the decisions in the cases of Raveneshwar Prasad Singh v. Baijnath Ram Goenka, 42 I. A. 79 : (A. i. R. (2) 1915 P. C. 24) and Sakina, Khatoon v. Khirod Chandra : AIR1942Cal173 . Judged by the above principles it cannot be said that the description of the property sold in the notification under Section 6, Bengal Land Revenue Sales Act, 1859, was such as to vitiate the sale. The first contention raised on behalf of the appellant must therefore fail.

8. The second contention raised on behalf of the appellant requires careful consideration. In order to deal with this contention it is necessary to advert to certain provisions of the Village Choukidari Act, 1870.

9. Section 48, Village Choukidari Act provides for transfer of choukidari chakran lands to the zemindars of the estate or tenure within which such lands are situate.

10. Section 49 of the said Act then states that all lands transferred should be subject to assessment at half of the annual value of such lands made by the village panchayat.

11. Section 50 empowers the Collector to approve of the assessment so made and to transfer such lands to zemindars in Form C subject to the assessment approved by him.

12. Section 52 lays down that the assessment is to be a permanent yearly charge on the lands transferred and is to be payable to the collecting member of the Panchayat yearly in advance on the 1st day of the year current in the village,'

13. Section 53 then provides that such assessment shall be deemed to be 'a demand to be realised in the manner herein after provided.'

14. I have already quoted Section 54,

15. Section 55 runs as follows :

'Immediately after the receipt of such notice the Collector ,. . shall proceed, without preliminary notice for payment, to issue notification for sale under Section 6, Bengal Land Revenue Sales Act, 1859, and unless the arrears be paid within the time mentioned in such notification, shall sell such lands according to the provisions of such law, as if such land was an estate within the meaning of the Bengal Land Revenue Sales Act. 1868.'

16. Act VII B. C. of 1868 was enacted to amend and extend the law for the realistion of arrears of land revenue and of public demands recoverable as arrears of land revenue.

17. Section 30 of this Act states that the Act is to be read with and as part of Act XI [11] of 1859 as amended by Act III B. C. of 1862.

18. The above provisions have the effect of empowering the Collector to sell choukidari chakran lands in respect of which a requisition has been made under Section 54, under the provisions of the Bengal Land Revenue Sales Act, 1859, after the service of a notification under Section 6, Bengal Land Revenue Sales Act, 1859. There is no dispute that the notification under Section 6, Bengal Land Revenue Sales Act was published in the present case. Mr. Chatterjee ingeniously contends that the use of the words,

'according to the provisions of such law as if such land was an estate within the meaning of the Bengal Land Revenue Sales Act, 1868'

makes all the provisions of the Bengal Land Revenue Sales Act, 1859, applicable; in particular Section 5, Bengal Land Revenue Sales Act, 1859, is attracted and a sale of the choukidari chakran lands cannot take place unless the collector proceeds to serve the notification mentioned in Section 5, Bengal Land Revenue Sales Act, 1859.

19. In order to test this contention we have to bear in mind the definition of an arrear of revenue as contained in Section 2, Bengal Land Revenue Sales Act which lays down that if an instalment of revenue according to the kists, remains unpaid on the 1st day of the month following that in which the kist is payable the unpaid kists shall be deemed to be an arrear of revenue. Section 3, Bengal Land Revenue Sales Act empowers the Board of Revenue to fix the latest date of payment of the arrears of revenue and it is well known that such dates have been fixed by the Board of Revenue.

20. Section 5, Bengal Land Revenue Sales Act provides that notifications in the manner prescribed in the section shall be issued when the arrears or demands are of the four descriptions stated in the section, the fourth category being wide enough to include dues in respect of choukidari chakran lands. Section 5 further provides that the notification mentioned in that section shall specify the nature and amount of arrear or demand and the latest date on which payment thereof shall be received.' The notification has to be affixed in the places mentioned in the section for not less than 15 clear days preceding the date fixed for payment under Section 3 of the Act. Section 5 therefore requires the Collector in the cases specified in the section to issue notifications prior to the latest date for payment of revenue and the sale is not to be advertised until such notification has been published. Notification under Section 5 differs from notification under Section 6 in that the notification under Section 5 has to be issued before the sale can be advertised. Section 6 notification, however, follows the expiry of the latest date of payment. It may be stated that the non-service of a notification under Section 5 is an illegality within the meaning of Section 38, Bengal Land Revenue Sales Act : vide Monindra Deb Roy v. Sree Sree Hanseswari Thakurani, 40 C. W. N. 271. If such a notification under Section 5 was an essential prerequisite before the Collector could issue a notification under Section 6 for the sale of the choukidari chakran lands the result would be that the dates mentioned in Sections 54 and 55, Village Choukidari Act would have to be varied. The service of such a notification would also be contrary to the express terms of Section 55 which empowers the Collector to proceed to issue a notification under Section 6 immediately after the assessment which is to be paid in respect of the choukidari chakcan lands has become payable. The following words used in Section 55, Village Choukidari Act namely 'without preliminary notice for payment' in my opinion obviously refer to any notification which calls upon the defaulter to pay the arrears of demand payable in respect of the choukidari chakran lands. As such the said words would, in my opinion, exclude the issue of a notification under Section 5, Bengal Land Revenue Sales Act which is a public call to the defaulter to pay the arrears within a certain time. In my opinion, quite apart from this consideration, the scheme mentioned in the Village Choukidari Act, 1870, is such as to exclude by necessary implication the service of any notice prior to the service of a notification under Section 6, Bengal Land Revenue Sales Act. Again Section 5, Bengal Land Revenue Sales Act is a proviso to Sections 2 and 3 of the said Act. As Sections 2 and 3, Bengal Land Revenue Sales Act have no application to the case of a sale for non-payment of the assessment under the Village Choukidari Act necessarily Section 5 can have no application to such sales.

21. Mr. Chatterjee was fully alive to the difficulty because of the presence of the words 'without preliminary notice for payment' in Section 55. Village Choukidari Act. He therefore argued that these words refer to a notice which is envisaged in Section 6 of Act VII B. C. of 1868. Section 6 of Act VII of 1868 enables the Local Government (now the Provincial Government) by an order published in the Calcutta Gazette (now official Gazette) to empower Collectors if they so think fit, to cause notices to be served on any proprietor before proceeding under Act XI of 1859 to realise from such proprietor any arrear of revenue that may be due from such property. It may be noted that before the passing of the Public Demands Recovery Act, 1830, the words 'or any demand' followed the words 'any arrears of revenue' in the aforesaid Section 6. This contention raised by Mr. Chatterji cannot be accepted for two reasons. In the first place the notice under Section 6 was not a compulsory notice. It is not known whether the Lt. Governor has made any notification under Section 6. Moreover, even if the Lt. Governor has made such a notification a discretion is left with the Collectors to issue notices under Section 6 only in appropriate cases. In the second place, the words 'any demand' occurring in the latter part of Section 6 were omitted, as I have said, by the Public Demands Recovery Act, 1880. As such a notice under Section 6 will not thereafter be served upon a proprietor in cases of demands other than arrears of revenue. The retention of the words 'without preliminary notice for payment' in Section 65, Village Choukidari Act even after the amendment of Section. 6, Public Demands Recovery Act, 1880, clearly indicates that notice under Section 6 of the Act, VII B. C. of 1868, was not the notice which was evisaged in Section 55, Village Choukidari Act.

22. Mr. Chatterjee further contends that the words 'unless the arrears be paid within the time mentioned in such notification' occurring in Section 55, Village Choukidari Act clearly show that Section 55 contemplates a notification which calls upon a defaulter to pay within a certain time, and this must be a notification other than a notification under Section 6, Land Revenue Sales Act. It is true that the notification under Section 6, Land Revenue Sales Act does not specify that the defaulter has to pay the arrears within certain time. On the contrary the last paragraph of Section 6 states that no payment or tender of payment after the sunset of the latest date of payment can bar or interfere with the sale, and the defaulting proprietor is not entitled to stop the sale by payment or tender of payment of the arrears due after the sunset of the latest date of payment. This is quite true but as was pointed out in the case of Gobind Chundra Gangopadhya v. Sherajunnessa Bibi, 13 C. L. R. 1, a practice had grown up at the time, on acceptance of arrears of revenue even after the sunset of the latest date of payment before the actual sale takes place ; the Collectors in those daya generally exercised their powers under Section 18, Bengal Land Revenue Sales Act of exempting the estates from sales even where payment was made after the latest date. It may be mentioned that the practice which was referred to in Gobinda Chandra's case (13 C. L. R. 1) was the foundation for the observation of Loch J., in the case of Raghub Chunder Banerjee v. Brojonath Koondoo, 14 W. R. 489 (9 Beng. L. R. 91n), to the effect that the object of Section 6 notice is to give information to the defaulter that unless the amount be paid by a certain date the property will be sold. The aforesaid words relied on by Mr. Chatterjee may have, in this views referred to the notification under Section 6.

23. In my opinion, the clear terms of the Village Choukidari Act justify the Collectors in bringing to sale choukidari chakran lands for non-payment of arrears of assessment under the Village Choukidari Act without serving a notification under Section 5, Bengal Land Revenue Sales Act, 1859.

24. I may point out that it is a matter of some doubt whether Section 5, Bengal Land Revenue Sales Act has any application at the present day to sales for arrears of demands which are recoverable as arrears of land revenue. The Bengal Land Revenue Sales Act does not contain any direction as to how such sales for arrears of demands which are not arrears of revenue may be dealt with. Moreover, in case the arrears due are not realised by the sale in such cases, the right to sell other properties of the defaulter was extremely problematical after the repeal of Act VIII [8] of 1835. In order to get round this difficulty Bengal Act VII [7] of 1868 was passed. This Act provided for sales of estates for arrears of revenue and also sales of estates and tenures for recovery of demands other than arrears of revenue but which are realisable as arrears of revenue, but that part of Act VIII which dealt with latter class of cases was, however, repealed in 1880 when the Public Demands Recovery Act (Act VII B. c. 1860) was passed, the latter Act providing for a speedy mode of realisation of such demands.

25. The result of the above discussion leads me to hold that in regard to sales of choukidari chakran lands under the provisions of Section 55, Village Choukidari Act, 1870, the service of a notification under Section 5, Bengal Land Revenue Sales Act, 1859, is not necessary. The second contention raised on behalf of the appellant must also therefore be overruled.

26. In the result, the appeals fail and must be dismissed with one set of costs for the two appeals.


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