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Siba Das Chakravarty and ors. Vs. Hemchandra Kar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1937Cal473
AppellantSiba Das Chakravarty and ors.
RespondentHemchandra Kar and ors.
Cases ReferredMaharajah Raveneshwar Prosad Singh Raveneshwar Prasad Singh v. Baij Nath Ram Goenka
Excerpt:
- .....was wholly wrong, the sale was also void as there were really no arrears due upon the residuary share sold, and that the purchase by defendant 3 was a benami affair. defendants 1 and 2 were deliberate defaulters and they had, in fact, purchased at the revenue sale by using sharp practice, and the plaintiffs have suffered very great loss due to irregularities in regard to the notification of the sale. the sale was, accordingly, declared null and void against the plaintiffs, and reliefs were given to the plaintiffs in accordance with the prayers made in the plaints filed in the suits out of which these appeals have arisen. the defendants who contested the plaintiffs' claim before the court below have appealed to this court.4. in support of the appeal it was urged before us that the.....
Judgment:

1. These two appeals have arisen out of two suits instituted by the plaintiffs-respondents in this Court, for declaration that a revenue sale held on 21st June 1926 is null and void against the plaintiffs in the suit and for issue of permanent injunction restraining the defendants in the suit, appellants in this Court, for taking possession of the shares of the plaintiffs in the estate that was sold for arrears of revenue. In one of the suits which has given rise to one of the appeals the plaintiffs prayed for recovery of possession of their share by evicting the defendants. The sale for arrears of revenue which was sought to be annulled was in respect of a residuary share of Tauzi No. 395 of the Bankura Collectorate. The residuary estate sold for arrears of revenue consisted of the shares of the plaintiffs in the two suits giving rise to these appeals, of defendants 1 and 2, of one Kulada Chatterji and Harihor Das and others, in Mauzas Chaukan or Chaugan, Patpur, Hatbari, Tapoban, Bakinala, Sankaria and Tejpal, which formerly represented the separate accounts 1,4, 6, 11 and 20 only of Tauzi No. 395 of the Bankura Collectorate.

2. The grounds on which the plaintiffs prayed for annulment of the sale were; (1) that the notices to be served under Act 11 of 1859 were not served; (2) that the notices were fraudulently suppressed without allowing the proprietors of the mahal and the general public to have any information of the sale; (3) that the sale was held at 9 a. m. in contravention of the advertisement published in the local newspaper 'Bankura Darpan' that the sale would be held at 12 noon, which the Collector bad no right to do; (4) that the sale was not valid as it was not advertised in the Calcutta Gazette; (5) that as separate account was opened in respect of the plaintiffs' share it could not be sold at the sale of the residuary estate; (6) that the Collector had no right to close the plaintiffs' separate account; (7) that no proper specification of the description of the property to be sold was made as required by Sections 5 and 6, Revenue Sales Law (Act 11 of 1859), and there was therefore absence of bona fide bidders for the property; (8) that as the sale notification did not specify that the plaintiffs' right would be sold the sale could not pass the plaintiffs' right. In connexion with the last two grounds and in connexion with the irregularities specified in the plaint it was asserted that as a result of the irregularities the property was sold at a nominal price of Rs. 200, whereas the value of the property sold was not less than Rs. 20,000. In addition to these grounds it was set out in the plaint that the purchase made at the sale for arrears of revenue was a purchase made by defendant 2 in the name of his wife, defendant 3. The purchase was, according to the plaintiffs in the suit, a benami one and the sale at which the purchase was made by defendant 2 in the name of his wife was brought about by fraud on the part of defendants 1 and 2. The last ground that was mentioned in the plaint and on which the claim for annulment of the revenue sale was based, was that there were no arrears due on the property sold so far as the plaintiffs' share was concerned.

3. A number of issues were raised on the pleadings of the parties-the contesting defendants in the suit having controverted the case set out in the plaint. The material issues raised for determination were these: 'Has there been any irregularity in the revenue sale, and have the plaintiffs suffered any substantial injury by reason thereof? Were there any arrears due in respect of the plaintiffs' share in the property sold?' In addition to the issues which were more or less of a technical character, mention may be made of another issue raised for determination in the case, namely, issue 11 which was as follows: 'Were the plaintiffs' original separate accounts 395-6 and 395-11 legally closed, and were those accounts included in the residuary share which was sold at the revenue sale? Was that residuary share excluded from sale in the sale notification?' It may be mentioned that the case made by the plaintiffs in the plaint with reference to the 6th ground specified above on which the annulment of the revenue sale was prayed for, was negatived by the decision arrived at by the trial Court, and that a decree in favour of the plaintiffs was passed by the learned Judge in the Court below on the ground that it had been satisfactorily established in the suits that there was material irregularity in effecting the sale and that the specification was wholly wrong, the sale was also void as there were really no arrears due upon the residuary share sold, and that the purchase by defendant 3 was a benami affair. Defendants 1 and 2 were deliberate defaulters and they had, in fact, purchased at the revenue sale by using sharp practice, and the plaintiffs have suffered very great loss due to irregularities in regard to the notification of the sale. The sale was, accordingly, declared null and void against the plaintiffs, and reliefs were given to the plaintiffs in accordance with the prayers made in the plaints filed in the suits out of which these appeals have arisen. The defendants who contested the plaintiffs' claim before the Court below have appealed to this Court.

4. In support of the appeal it was urged before us that the irregularity in the matter of specification of the description of the property was not established; it was contended that even assuming that there was irregularity, it did not lead to inadequacy of price and, therefore, regard being had to the provisions contained in Section 33, Act 11 of 1859, the sale could not be declared null and void. The finding of fraud arrived at by the Court below was challenged on appeal. It was urged in support of the appeal that the finding as to the shares mentioned in the judgment was incorrect. It was further urged that the finding arrived at by the Court below on the question of there having been no arrears and the decision given by the Court below that there were no arrears with reference to which it could be said that there was a valid sale for arrears of revenue, were erroneous and incorrect regard being had to the materials placed on the record. We propose for the purposes of these appeals to deal with the question raised before us in support of the appeals, namely whether the plaintiffs had substantiated their case before the Court that there was irregularity in the matter of specification or description of the property sold for arrears of revenue, and whether they had made out a case that the provisions contained in Sections 5 and 6, Act 11 of 1859, had been fulfilled in the matter of specification or the description of the property sold for arrears of revenue. With reference to this part of the case it is necessary to refer specifically to the sale notification that was published in the case before us. Ex. G in the case is a certified copy of the notice for sale for arrears of revenue that was published, and it was in this form:

1 2 3

Touzi No. Name of Mehal Pergana. Sadar Jama of whole estate

395 Chowgan Pergana Vishnupur Rs. 860

4 5 6 7

Whether the If only a share is to be sold, Name of proprietors If only a share is to

whole estate is specification of such share or shares. of property to be sold the sadar

to be sold 4 annas 13 gandas 3 kara 3 kag be sold. jama of such share

No. 137/240 danti and 18 tils residuary. Sib Das Chakrabarti Rs. 249-13-11.

All other shares than that specified and another

will be excluded from the sale.

5. It is to be noticed that under col. (5) the share to be sold is specified; it was mentioned as 'residuary', and it was also stated that all other shares than that specified will be excluded from sale. In col. (6) what was stated under the heading: 'Names of proprietors of property to be sold' was this: 'Shiba Das Chakravarty and another'. In col. (7) the amount of the sadar jama payable on account of the share advertised for sale was stated to be Rs. 249-18-11.

6. This was the specification or the description given in the sale notification to fulfil the requirements of Section 6, Revenue Sales Law (Act 11 of 1859). In addition to this notification in Ex. G to which reference has been made, it is necessary to refer to the contents of the sale notice and the advertisement published in the local paper 'Bankura Darpan' this notice of sale which appeared in the of 6th June 1926. What was stated in local newspaper was this:

The public are hereby informed that the following mahals will be sold by public

auction for arrears of revenue at the office of the Collector of

395 Mahol. As. gd. k. d. t. Shiva Das revenue.

District Bankura at 12 noon, on 21st June, next.

Touzi No. Name of Share. Name of Malik. Arrears of

Chowgan 4-13-3-3-137-18 Chakravarty Rs. as. p.

240 and others. 2 6 10

7. In the above notice which appeared in the local paper, under the heading 'Name of Malik' there was an entry 'Shiba Das Chakravarty and others', that the property to be sold for arrears of revenue was a residuary share was not mentioned in the notice. The share stated in this notice was what was set out in the notice of sale Ex. G to which reference has already been made. The amount of arrears of revenue mentioned in the notice published in the local newspaper Ex. 12 was Rs. 2-6-10. There was no mention of the mouzas in any of the above notices of sale. On this state of things, it was urged on the side of the plaintiffs, in the suit, respondents in these appeals, that the specification did not fulfil the requirements of the law, and it was sought to be made out by evidence led on the side of the plaintiffs, that on account of the specification of the property sold, in the manner mentioned above, regard being had to the statement contained in Ex. G and Ex. 12, there was paucity of bidders. The public had not had sufficient information before them in regard to the nature of the property to be sold for arrears of revenue. The case of the plaintiffs was that the bidders could not understand what property was going to be sold, and there was paucity of bidders, on account of which the property could be purchased, as it was done in point of fact, by defendant 2 in the name of defendant 3, for Rs. 200 only. The evidence coming from the witness examined on the side of the plaintiffs indicates clearly that the intending bidders could not understand what property was going to be sold, and that there was paucity of bidders on that account. In view of the evidence led on the side of the plaintiffs, it was argued on their behalf that substantial loss had resulted from the irregularity in the matter of specification or the description of the property to be sold, and such specification or description as was given, did not at all meet the requirements of the law, as contained in Section 6, Revenue Sales Law (Act 11 of 1859). It may be noticed in this connexion, regard being had to the materials placed on the record, the documents relating to the specification or the description of the property to be sold for arrears of revenue, and the other evidence led on the side of the plaintiffs, for the purpose of establishing substantial loss on account of the irregularity in the matter of fulfillment of the requirements of the law, by giving proper description of the property to be sold, that the law required specification of the share in the estate which was going to be sold. That was what was required to be done in view of the provisions of Section 6, Revenue Sales Law (Act 11 of 1859). As to particulars specified, it may be mentioned with reference to the entries of names of the proprietors, the Court must, in our judgment, see that there is no mistake made by wrong entry of names, by omission of names, or any other mistake in the sale proclamation which is required to be published under the provisions of the law, for the purpose of seeing that the intending purchasers were not misled.

8. It may be taken to be established on authority of decisions of Courts, that a mistake or an omission in the specification or the description of the property to be sold may be material or otherwise; and what has to be considered is whether, having regard to all the circumstances, the specification was sufficiently definite and clear to induce likely purchasers to appear and bid at the sale. If any authority is needed for the proposition to which reference has bean made above that authority is to be found in the decision of their Lordships of the Judicial Committee in the case in Raveneshwar Prasad Singh v. Baij Nath Ram Goenka AIR 1915 P C 24, where it was laid down that in a notification for sale for arrears of revenue under Bengal Act 11 of 1859 the specification of the property to be sold must be sufficiently definite and clear in itself to enable possible purchasers to know what they are invited to bid for, without reference to information in the Collector's office. The observation made by their Lordships in the case referred to above appears to us to have a direct bearing on the facts and circumstances of the case before us. It had to be considered, according to their Lordships, whether the specification or description of the property to be sold in the sale notification was in accordance with the provisions of the law as contained in Section 6 of Act 11 of 1859. Their Lordships observed as follows in the course of their judgment:

Act 11 of 1859 is a stringent enactment for the realization of arrears of revenue; at the same time it provides certain safeguards for the protection of the interests of the defaulter so that he may not be unnecessarily prejudiced. Among these safeguards are the provisions of Sections 5 and 6 for the issue of the notifications of sales specifying the properties to be sold, and their due publication in accordance with the law. An exact compliance with the requirements of the Act is considered sO important by the Government that the Board of Revenue has issued special rules, with forms of notification necessary in the case of estate or shares of estates advertised for sale. The object of the law requiring specification of the properties to be sold as well as the Board's rules, is clearly to enable likely purchasers among the public to know exactly what is going to be sold, and to ensure thereby reasonable competition. When an estate is advertised for sale it is not difficult to specify it; in the case of shares of estates the work of specification requires care and attention. No hard and fast rule can be laid down with regard to the sufficiency, for it must vary according to the facts of each particular case.

9. We have already referred to the sale notice that was issued by the Collector in this case, Ex. G, and to the other sale notice published in the local newspaper, 'Bankura Darpan', Ex. 12. The question is whether the specification given in the notices mentioned above was sufficient in itself for the purpose of meeting the requirements of the law as contained in Section 6 of Act 11 of 1859. In our judgment there can be no question, and we are entirely in agreement with the observation made by the trial Court, that the restrictive description of the owners of the property to be sold, namely 'Shibadas Chakravarty and another' was a misdescription, and did mislead intending purchasers. The notice that appeared in the local newspaper, Ex. 12, was not less confusing; that the share to be sold as a residuary share was not mentioned at all; and with reference to the names of the proprietors it was stated that the property that was going to be sold belonged to Shiba Das Chakravarti and others, Taking these two things together it could not be said that the specification or the description of the property to be sold in the sale notices to which reference has been made above, sufficiently met the requirements of the law, in view of the observations made by the Judicial Committee in the case of Maharajah Raveneshwar Prosad Singh Raveneshwar Prasad Singh v. Baij Nath Ram Goenka AIR 1915 P C 24, to which reference has been made above, we have come to the conclusion that in the specification or description of the property sold in the case before us, was an irregularity in view of the requirements of the law as contained in Section 6, Act 11 of 1859. On the materials on record the conclusion is irresistible that there was non-compliance with the requirements of the law, and that there was irregularity in the specification or description of the property sold for arrears of revenue consisting of mistakes and omissions in the sale notices, in view of which the sale should be annulled. The plain, tiffs in the suit had to make out before the Court that there was substantial loss attributable to the irregularity to which reference was made by the plaintiffs. The evidence led on the side of the plaintiffs indicates clearly that there was inadequacy of price. Evidence was given by the plaintiffs, which in our opinion should be accepted, that the, inadequacy in price was due, in the words of their Lordships of the Judicial Committee, in the case referred to above, 'indefiniteness of notice in the matter of specification or description of the property to be sold'. A reference to the bid sheet, and to the testimony of witnesses Mahendra Nath Mahadin, Banikanta Banerji and Pratap Chandra Roy, examined on the side of the plaintiffs, leaves no room for doubt that the low price fetched at the sale, namely Rs. 200 at which the property was knocked down, was due to paucity of genuine and substantial bidders in consequence of the absence of proper specification in the sale notices.

10. In this view of the case before us it was incumbent on the Court regard being had to the provisions of Section 33 of the Revenue Sales Law, to annul the sale as has been done by the trial Court in the case before us. On this ground alone the appeal must fail. In addition to the irregularity in the matter of specification or the description of the property sought to be sold and the irregularity in the non-fulfillment of the requirements of Section 6 of Act 11 of 1859, the trial Judge has exhaustively gone into other material questions, which were raised before him by the parties concerned. A distinct and definite finding was arrived at on the question of benami raised in the case. The Judge in the Court below has also, on the materials placed on the record, come to the decision that there was an error in the specification of shares as mentioned in the notification of sale, Ex. G, and in the sale notice published in the local newspaper 'Bankura Darpan'. The learned Judge has also given his decision, for the reasons stated in his judgment, that in view of the real revenue payable in respect of the residuary share sold on 22nd June 1926, there were no arrears due for which the sale in question could be held. According to the Judge in the Court below, if the Collector had miscalculated the amount of revenue to be paid for the residuary share, that could not affect the plaintiffs' interest. For the purposes of the appeals to this Court we do not think it at all necessary to go into the other questions to which reference has been made above, seeing that on our decision that there was irregularity in the matter of the notification of the sale and substantial loss resulted from such irregularity, the sale must be annulled as has been done by the Court below.

11. The result of the decision we have come to, as mentioned above, is that the appeals are dismissed with costs. A point was made in the course of the argument that the pleader's fee as entered in the decree of the Court below was not the proper fee. It appears to us that there is some mistake in the figures in the decree, as regards the pleader's fee; and we reduce the pleader's fee mentioned in the decree of the Court below, in Title Suit No. 94 of 1927 from Rs. 400 to Rs. 200. With this modification in regard to the amount payable as pleader's fee, the decrees of the Court below are affirmed, and these appeals dismissed. The plaintiffs-respondents are entitled to get their costs in this Court. Hearing-fee in this Court is assessed at 5 gold mohurs in each appeal.


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