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Amrita Lall Roy and anr. Vs. the Secretary of State for India in Council and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.458
AppellantAmrita Lall Roy and anr.
RespondentThe Secretary of State for India in Council and ors.
Cases ReferredGobind Lai Roy v. Ramjanam Misser
Excerpt:
bengal land revenue sales act (xi b. c. of 1859), sections 2, 3, 6, 7, 33, 58 - revenue sale, dates in connection with--'arrears of revenue', meaning of--collector's power to purchase estate at highest hid, after, malting bid of re. 1--notices under sections 6 and 7, whether can be issued, by sub-deputy collector for collectors--'ground declared and specified' meaning of--non--service of notice under section 7, whether invalidates sale--finding of fact or law. - n.r. chatterjea, j.1. this appeal arises out of a suit to set aside the sale of a revenue paying estate under act xi of 1859. the estate was sold for arrears of revenue for the 'january kist' of 1908 on the 25th june 1908, and was purchased by the government fur rs. 50.2. the plaintiff no. 1, who was the owner of the largest share in the estate, and the plaintiff no. 2 who was the patnidar preferred appeals to the commissioner, but the appeals were dismissed for default. thereupon the present suit was instituted for reversal of the sale. the plaintiffs alleged that the estate was worth rs. 6,000, and it has been found that it is worth rs. 3,000.3. the courts below dismissed the suits and the plaintiffs have appealed to this court.4. the first contention raised on behalf of the appellants.....
Judgment:

N.R. Chatterjea, J.

1. This appeal arises out of a suit to set aside the sale of a revenue paying estate under Act XI of 1859. The estate was sold for arrears of revenue for the 'January kist' of 1908 on the 25th June 1908, and was purchased by the Government fur Rs. 50.

2. The plaintiff No. 1, who was the owner of the largest share in the estate, and the plaintiff No. 2 who was the patnidar preferred appeals to the Commissioner, but the appeals were dismissed for default. Thereupon the present suit was instituted for reversal of the sale. The plaintiffs alleged that the estate was worth Rs. 6,000, and it has been found that it is worth Rs. 3,000.

3. The Courts below dismissed the suits and the plaintiffs have appealed to this Court.

4. The first contention raised on behalf of the appellants is that the sale was without jurisdiction, as there was no arrear of revenue within the meaning of Section 2 of Act XI of 1859, for which the estate could be sold. Section 2 lays down what an arrear of revenue' is. It says 'If the whole or a portion of a kist or instalment of any month of the era according to which the settlement and Kisibandi of any mahal have been regulated be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered an arrear of revenue'. The Kistibandi of the mahal has not been produced in the case. But the various robokaris and notices issued by the Collector [Exhibits 6 (a), 6 (b), 6 (c) 4 (a), 4 (b), 4 (c), 4 (d), c 1, d 1, to d 4 referred to in the judgment of the Court of first instance] mention Rs. 89-15-9 as arrears of the January kist of 1908, If the amount was on account of the January kist, it could not, having regard to the provisions of Section 2 of the Act, become an 'arrear of revenue' until the 1st of February. The learned District Judge says that the last date of payment of the January kist was the 12th January. That obviously is wrong. There are three dates to be considered in connection with sales under the Act. The first is the kist or instalment of payment fixed by the kistibandi of each estate That kist, if it remains unpaid on the first day of the following month, becomes an arrear of revenue (Section 2). The second is the date fixed by the Board of Revenue for each district as the latest day (in each quarter) for payment of all arrears' (Section 3), and lastly, the date fixed for the sale. The 12th January, no doubt, is one of the dates fixed by the Board of Revenue under Section 3 of the Act for payment of arrears of revenue in the district. But if the amount of Rs. 89-15-9 was due for the January kist, it did not become an arrear of revenue until the 1st February. It is contended on behalf of the respondent that the expression 'January kist' in the judgment of the District Judge was a misuse of the words and that what was meant was the kist of revenue for a period before January, the last date of payment of which was the 12th of January, in other words, that it was an arrear of revenue payable on that date, and we were referred to the copy of the Touzi Ledger of the Collectorate in support of the contention.

5. The Ledger shows that Rs, 89-15-9 was payable on the 12th January 1908. If, however, the amount was for the January kist as the various robokaris and notices issued from the Collectorate show, the Ledger would not, in the absence of the kistibandi, help the respondent, because the revenue for the January kist did not become an arrear of revenue on the 12th January, and the entry in the register would be in contravention of the provisions of Section 2 of the Act. The learned Government Pleader relied on the passage in the judgment of the Subordinate Judge where he refers to the statement of the son of plaintiff No. 2, who said that Rs. 89-15 9 were the arrears of revenue for which the mahal was sold, and that the documents of the estate were with the defendant No. 3 and observes that the patta ought to have been produced by the plaintiff.

6. But the estate was sold for Rs. 89-15-9, the alleged arrears of revenue. Whether it constituted an 'arrear of revenue' within the meaning of Section 2 is a question of law to be decided in the case. The, statement, therefore, of the witness cannot prove that it was an arrear of revenue within the meaning of the Act. As for the plaintiffs not producing the bundubasti patta, it does not appear that the patta was either with the plaintiffs or even with the defendant No. 3, all that the witness said was that the documents of the estate were with the defendant No. 3. The plaintiffs have produced various papers issued from the Collectorate in which the arrear is expressly described as being for 'January kist,' and I think they are entitled to rely upon them. In the 9th paragraph of the written statement the defendant stated that the yearly revenue of the estate is payable in four kists and the sum of Rs. 89-15-9 for which the estate was sold was due in respect of the December kist. The plaintiffs, as already stated, produced a number of papers stating that the arrears were for the 'January kist,' and the notifications of sale issued under Section 6 of the Act described it as arrears of 'January lalab. If the words 'January kist' or 'January lalab' were loosely used, as it is contended on behalf of the respondent, nothing was easier for the defendant than to produce the kabuliyat executed by the plaintiffs and which would at once have shown the kists. In the absence of the kistibundi, the plaintiffs are entitled to rely upon the description appearing in the papers issued from the Collectorate and there is no reason why we should hold that the expression 'January kist' was used in the papers issued from the collectorate in a loose way, or that it was used in a sense different from its plain meaning. I have referred to the evidence on the point, only because the learned Government Pleader based his arguments upon it, but we are not entitled to go into evidence in second appeal. Whatever might have been the opinion of the Subordinate Judge, the learned District Judge distinctly refers to the 'January kist,' and as far as the finding of fact goes, we are bound by it. He, no doubt, says that the last date for payment of the 'January kist' was the 12th January, and that there 'unquestionably was an arrear'. That, however, is a question of law to be decided with reference to the provision of Section 2 of the Act, and is not a finding of fact. In Haji Buksh Ilahi v. Durlav Chandra Kar 16 Ind. Cas. 821 : 16 C. W. N. 842 : 23 M. L. J. 206 : 12 M. L. T. 385 : (1912) M. W. N. 1005 : 14 Bom. L.R. 1063 : 10 A. L. J. 452 : 16 C, L. J. 620 : 39 C. 981 (P. C.). the proprietor of an estate stipulated for payment of the whole revenue within 28th June every year, and the revenue remained unpaid on 23th June. The Collector directed the estate to be sold and it was accordingly sold on 16th March 1903 for non-payment of revenue for the June instalment of 1902. The Judicial Committee held that the revenue was not in arrear until the 1st July 1902 and the estate could not be sold till 23th June 1903. I am of opinion that there was no arrear of revenue within the meaning of the Act on the 12th January 1908 and the sale was, therefore, without jurisdiction see Balkishen Das v. Simpson 25 I. A. 151 at p. 158 : 25 C. 833 : 2 C. W. N. 513 : 7 Sur. P. C. J. 363 : 13 Ind. Dec. (N.S) 543 (P.C,).

7. The next contention is that the purchase by the Collector was in contravention of the provisions of Section 58 of the Act and is, therefore, wholly invalid. It appears that at the first sale which took place on the 25th March 1908 there were three bidders and one Chandra Kant Mitra bid Rs. 135 and deposited the 25 per cent, of the purchase-money, but as he defaulted to pay the balance, there was an order for re-sale and it took place on the 25th June 1908. On that date there were three bidders present. The Collector commenced the bid at Re. 1. The highest bid was by one Rajani Kant, and he bid Rs. 50, the Collector enquired whether there were further bids, and as no one offered higher, the estate was purchased by the Government at Rs. 50.

8. Now, under Section 58, the Collector may purchase the estate on behalf of the Government only in two cases. The first is where there is no bidder and then he can purchase the estate for Re. 1. Here there were three bidders present, and he, therefore, could not bid. The second is where there are bidders, and the highest bid is insufficient to cover the arrears and those accruing up to the date of sale, and in such a case the Collector may take or purchase the estate on account of the Government at the highest amount bid. As pointed out by Brett and Mookerjee JJ. in the case of Halim-un-nissa Chowdhrani v. Secretary of State 17 C. 1038 : 8 C. W. N. 880. 'that the highest bid here referred to is one not arrived at by competition between the Collector and ordinary bidders.' They observed: 'It appears to be clear that, as in the first class of cases, the Collector is to take no action till he has ascertained that there are no bidders, so also in the second class of cases, the Collector is to take no action till he has ascertained that the highest amount offered by the bidders present is insufficient to cover the amount realizable. We do not think it would be a reasonable construction of Section 58 to hold that it is open to a Collector to compete with the other bidders and after he has been defeated and the highest bid determined against him, that he may turn round and claim the benefit of the second part of Section 58. If the Collector chooses to enter the ring as an ordinary bidder he must be treated as such, and in order to succeed he must outbid the other intending purchasers. If, on the other hand, he desires to take advantage of the second part of Section 58, he must wait and see whether the highest bid is or is not sufficient to cover the demand realizable. In the case before us the first bid of Re. 1 offered by the Collector was clearly not one under the first part of Section 58 inasmuch as there was at least one person, the agent of the defaulter, ready to offer bids. When, therefore, the second bid of Rs. 10 was offered, if the Collector desired to purchase the property, the only course open to him was to advance his own bid, like any ordinary bidder. We must hold accordingly that the procedure followed by the Collector and the purchase made by him were not in accordance with the provisions of Section 58 of the Revenue Sale Law.' The learned Judges further observed that the sale 'has been brought about by what must be regarded as an abuse of the provisions of Section 58, if indeed it may be regarded as a colourable compliance therewith. Title consequence has been that a valuable property has passed into the hand of the Government for a nominal sum while the defaulting proprietor still continues liable for the unsatisfied arrears.'

9. It is contended, however, on behalf of the respondent that in the present case the bid of Re. 1 was the customary (mamuli) or sarkari bid and that the finding of the lower Appellate Court is that the Collector did not enter the ring as a bidder and the bid was made by the peons as a matter of form. But in the first place, as pointed out by the Subordinate Judge, the peon made a bid of Re. 1 in the presence of the Collector who did not forbid the peon to make that sarkari bid, and that the bid of Re. 1 could not have been a mamuli one since there was no such bid on the 25th March. The learned Subordinate Judge was of opinion that there was no doubt 'that the Collector's acts were illegal as they were not in accordance with the provision of Section 58 of Act XI of 1859 and that the sale is tainted by illegality.'

10. The learned District Judge, no doubt, holds that the Collector did not enter the ring as a bidder because, in his opinion, the bid by the peon was made by him as a matter of form. The finding, however, cannot be said to be a finding of fact. The Statute does not recognize any bid of Re. 1 as a matter of form, It expressly lays down the case where the Collector may purchase the estate for Re. 1. The peon surely did not make the bid of Re.1 against the order of the Collector, and if notwithstanding the express provision of the law, the Collector allows his peon to make the bid of Rs. 1 it must be taken to be his bid, and whether it be a matter of form or not, the legal consequences must ensue. It may be pointed out that in the case of Halim-un-nissa v. Secretary of State 17 C. 1036 : 8 C. W. N. 880. cited above, there was also a bid of Re. 1 on both the dates of sale. The bids must have been made by the peon and not by the Collector himself, and I am unable to see the force of the observation that the bid in the present case by the peon was not made on behalf of the Collector. If the bid was made as a matter of form that itself shows that it was made on behalf of the Collector, and not by the peon on his own behalf. But the bid sheet itself (which is signed by the Collector himself) shows that the Re. 1 bid was on behalf of the Government. The bids by the Government are shown thus: Government 1-50' i e, the bids on behalf of the Government were Re. 1 and Rs. 50. The entry of Rs. 50 is obviously incorrect, because there was no bid of Rs. 50 on behalf of the Government, the estate was only purchased at the highest bid of Rs. 50 by the Collector on behalf of the Government. But as the estate was purchased by the Government for Rs. 50, it appears to have been mentioned as a bid on behalf of the Government, and at the foot of the bids, it was stated that it was 'sold to Government for Rs. 50 only.' Under the circumstances the mere fact that Rs. 10 was mentioned as a bid cannot detract from the effect of the entry of Re. 1 as a bid on behalf of the Government, The facts in this connection are stated in the judgments of the Courts below, and it is open to us to decide whether the purchase by the Collector was or was not illegal. I am of opinion that the Collector offered the bid of Re. 1, and that being so, he could not purchase the estate on behalf of the Government at the highest amount of bid made by another bidder, Rajani Kant. The purchase, therefore, was in contravention of the provisions of Section 58 of the Act.

11. The question arises, however, whether the ground was taken in the appeal to the Commissioner. The learned Subordinate Judge apparently was under the impression that it was not when he observed: 'It is, therefore, that I remarked that it was a pity that the illegality was not declared and specified in the grounds of appeal since Section 33, Act XI, precludes the plaintiffs from raising new grounds in the plaint.' The ground was not taken in the appeal by the plaintiff No. 1, although he took the general ground that the sale was not held in conformity with the provisions of Act XI of 1859. But it is not open to the plaintiff, in a suit to set aside a revenue sale, to urge, under cover of a general ground taken in his appeal before the Commissioner, specific irregularities other than those urged before the Commissioner. See Gobind Lal Roy v. Ramjanam Misser 21 C. 70 : 20 I. A. 165 : 17 Ind. Jur. 536 : 6 Sar. P. C. J. 856 : 10 Ind. Dec. (n. S. 679 (P. C.). and Sheikh Mohammed Aga v. Jadunandan Jha 10 C. W. N. 137 : 2 C. L. J. 325. The ground, however, was taken in the appeal by the plaintiff No. 2 to the Commissioner. The sixth ground of his appeal to the Commissioner runs as follows:---'That it was illegal , on the part of the Collector of Faridpur to bid and purchase the property for Rs, 50 on behalf of the Government under Section 58 of Act XI of 1859, inasmuch as it does not appear that the bidders had refused to increase their bids.' It is contended on behalf of the respondent that the ground now taken on the point was not taken before the Commissioner in that form. That is true. But the invalidity of the purchase on behalf of the Government under Section 58 was, taken, though the reason given for it is not the same as that which is urged in the present suit. The words 'declared and specified,' however, would hardly include the reasons for the grounds, and I am of opinion that the objection to the purchase by the Collector under Section 58 of the Act was sufficiently taken, though not in, the precise form urged in the present case.

11. Besides the purchase by the Collector being in contravention of the provisions of Section 58, no legal rights accrued to the Government under the purchase, and in that view, it need not have been specified in the grounds of appeal to the Commissioner.

11. It is contended on behalf of the respondent that even if the purchase by the Collector was in contravention of the provisions of Section 58, the only person affected was Rajani Kant whose bid of Rs. 50 was not accepted, and that the plaintiff did not sustain any substantial injury by reason of the irregularity complained of But the amount of the arrears for which the estate was sold was Rs. 89-15 9 (up to December 1907 according to the defendant) and there must have been arrears up to the date of the sale (25th June 1908). The estate was sold for Rs. 50 only, so that it was insufficient to cover the amount for which the plaintiff was liable, and even after the sale of his estate, he is liable for the balance of the arrears, and that certainly is substantial injury to him by reason of the irregularity.

12. The third contention is that the notification of sale under Sections 6 and 7 of the Act not having been signed by the Collector or other officer authorised to hold sales under the Act, the sale proceedings are void. The notices were signed by one B. K D. Gupta, a Sub Deputy Collector (and not a Deputy Collector as stated in the judgment of the Court of Appeal below). It appears from the Collector's general order-book that he was authorised by the Collector to sign processes, and the learned District Judge is of opinion that there is no provision in the Act requiring notices to be signed by the Collector himself, nor is there any Rule prohibiting delegation of his duty by the Collector to any of his subordinates. If the issuing of notifications includes the act of signing the notices, the Sub-Deputy Collector certainly was not an authorised person, because under the rules framed by the Board of Revenue it is the Commissioner of Revenue who can authorise any officer subordinate to him to legally exercise the power of a Collector to hold sales of land, and the word 'Collector' in Section 61 of the Act includes a Deputy Collector or other officer exercising by the authority of Government the powers of a Collector or a Deputy Collector. B.K.D. Gupta was not a Deputy Collector, and he does not appear to have been authorised by the Government to exercise the power of a Collector or a Deputy Collector, nor does he appear to have been authorised by the Commissioner to hold sales under the Act, and the fact that he was authorised by the Collector to sign processes would not authorize him to sign notices of sale under the Act, if that is to be done by the Collector or other officer authorized to hold sales under the Act. We were referred by the learned Counsel for the appellant to as passage in the judgment in the case of Baijnath Sahai v. Ramgut Singh 23 C. 775 at p. 787 : 23 I. A. 45 : 7 Sur. P. C. J. 1 : 12 Ind. Dec. (N.S) 514. where Lord Davey observed: 'It is unnecessary for their Lordships to point out the necessity there is when power is given to a public officer to sell the property of any of Her Majesty's subject that the forms required by the Act, which are matters of substance, should be complied with.' These observations, however, were made in connection with the certificate procedure under the Public Demands Recovery Act, which there is a distinct provision that the certificate is to be signed by the Collector himself. There is no such provision in Act XI of 1859. The Collector or other officer authorized to hold sales under the Act is required to issue notification, and it is contended on behalf of the respondent that it is sufficient if he settles or directs that notices should be issued and the power of signing the notices may be delegated to a subordinate officer, as was done in the present case by the general order of the Collector.

13. It is pointed out, on the other hand, on behalf of the appellant, that there is no evidence to show that it was the Collector who directed the notices to be issued in the present case. Here the notices were signed by the Sub-Deputy Collector for the Collector, but there is no provision in the Act authorizing the Collector to delegate this function to a subordinate officer. As, however, the appellants must succeed on other grounds, I do not think it necessary to decide finally whether such delegation is permissible.

14. The last contention is that the notices under Section 7 were served in the Pangsha Police Station, whereas the lands of the estate are situated within the Police Station of Baliakandi where no notices were served at all.

15. This appears to be so from the returns submitted by the serving peon. The learned District Judge overruled the contention on the ground that the third issue did not specifically raise this point. But the issue should be read with reference to the pleadings in the suit. The plaint (paragraph 5) distinctly raised the question, and the 3rd issue as framed was sufficiently wide to cover it. It was also expressly taken in the grounds of appeal to the Commissioner. The return submitted by the peons bear out the contention, and under the circumstances the Court below ought not to have thrown out the contention. The learned Judge refers to the fact that the ruling in Rajrani Dasi v. Gonesh Prosad 5 Ind. Cas. 650 : 14 C. W. N. 626 : 37 C. 407. had not been made when the plaint was filed or the issues were framed and observes that 'before that ruling the High Court had never made a distinction between admissibility of evidence of service in a wrong mahal after the grant of a sale certificate under the Revenue Sale Law. I am, therefore, not inclined to believe that the appellants intended specifically to put this matter in issue.'

16. But as stated above, the plaint distinctly raised it and the non-publication of notices under Section 7 referred to in the issue can have reference only to the non-publication complained of in the plaint. The plaintiffs might not have been able to rely on the point if the case in Rajrani Dasi v. Gonesh Prosad 5 Ind. Cas. 650 : 14 C. W. N. 626 : 37 C. 407 had not been decided in that way before the trial in the present case took place, but that would be no ground for overruling the contention if it was set up in the plaint.

17. The learned Judge observed that there is a conflict of decisions between that case and the case of Sheikh Mohammed Aga v. Jadunandan Jha. as to the effect of Section 8 of Act VII of 1858. But the question whether that Section would prevent the plaintiffs from proving that the notice was served in a wrong mahal was not considered in the case of Sheikh Mohammed Aga v. Jadunandan Jha 10 C. W. N. 137 : 2 C. L. J. 325. It is unnecessary, however, to discuss this question, because assuming that Section 8 of Act VII of 1868 does not cover a case of service of notice in a wrong mahal, it has been laid down in several cases that the object of the notification under Section 7 of Act XI of 1859 being to give notice to the raiyats not to pay rent to defaulting zemindars, non-service of such notices cannot occasion any loss to the defaulter and cannot be a ground for invalidating the sale. Had the matter been res integra, I would have been prepared to hold that although the direct object of the notice under Section 7 might be to give notice to the raiyats not to pay rent, such notice has the effect of giving great publicity to the fact that the sale is going to take place, and making it known to the zemindars and other people in the neighbourhood who would naturally be more interested in purchasing the estate, and the non-service of the notice under Section 7 is a material irregularity. As, however, a contrary view has been taken in a series of cases see Gabind Chundra Gangopadhya v. Sherajuanissa Bibi 13 C. L. R. 1; Mahomed Azhar v. Raj Chunder Roy 21 C. 354 : 10 Ind. Dec. (N.S) 867; Azimuddin Patwari v. Secretary of State for India 21 C. 360 : 10 Ind. Dec. (N.S) 871; Sheikh Mohammed Aga v. Jadunandan Jha 10 C. W.N. 137 : 2 C. L. J. 325 it must be held that the non service of notice under Section 7 does not invalidate a sale.

18. The plaintiffs, however, I think, are entitled to succeed on the first two grounds stated above. The sale must, therefore, be set aside as invalid, and the suit decreed accordingly, by setting aside the decrees of the Courts below.

Newbould, J

19. This is a second appeal by the plaintiffs against a decree dismissing a suit to set aside a sale of an estate for arrears of revenue under the provisions of the Bengal Land Revenue Sales Act, XI of 1859.

20. The first point urged at the hearing of the appeal is based on the decision of the Judicial Committee in the case of Haji Buksh Elahi v. Durlav Chandra Kar 16 Ind. Cas. 821 : 16 C. W. N. 842 : 23 M. L J. 206 : 12 M. L. T. 385 : (1912) M. W. N. 1005 : 14 Boma. L. R. 1063 : 10 A. L. J. 452 : 16 c. h. J. 620 : 39 C. 981 (P. C.). It is contended that in the present case as in that case, the estate was put up to sale for an arrear of revenue before the latest date fixed for its payment and that the sale was consequently without jurisdiction. The liability of an estate to sale under the Act depends on three dates. The first is the date on which the instalment of revenue is payable under the terms of the settlement. If it is not paid on this date, under Section 2 of the Act it does not become an arrear of revenue until the first of the following month which is the second date. And though the unpaid sum has become an arrear of revenue the estate is not liable to sale under the Act unless this arrear of revenue remains unpaid on the latest day of payment. This, the third date under Section 3 of the Act, has to be determined for each district by the Board of Revenue. In the Faridpur district where the estate is situated the dates fixed under Section 3 as the latest days of payment are 28th June, 28th September, 12th January and 28th March of every financial year. The estate was first put up to sale on the 25th March 1908. It was subsequently re sold on account of default by the purchaser but this is irrelevant to the present argument. Whether the sale on the 25th March 1908 was with or without jurisdiction depends on whether there was or was not an 'arrear of revenue' as defined by Section 2 previous to the 12th January 1908, the 'latest day of payment' under Section 5 previous to the sale. Whether there was such an arrear depends on whether there was an instalment of revenue due according to the terms of settlement before the 1st January. The difficulty in this case arises from the fact that at the trial neither party have any evidence as to the terms of the settlement and there is consequently no finding as to the actual date when the unpaid instalment of revenue was primarily payable. The plaintiffs appellants rely on certain roboharis and notices issued by the Collector---Exhibits 6 (a), 6 (b), 6 (c), 4 (a), 4 (b), 4 (c), 4 (d), C 1, D and D1 to D4, which mention the January kist of 1908. But as remarked by the learned Subordinate Judge, some of these documents also refer to January 12th, 1908, as the latest day of payment. Relying on this and on the fact that the plaintiffs have not produced the Government band basti pattah, he has held that what is called the January kist was in reality the December kist as alleged in the written statement, for which the latest date of payment was the 12th January. The learned District Judge in his appellate judgment has not gone into these details, but has held that the last date of payment for the January kist was the 12th January. As his is a judgment of affirmance he must be held to have supported the finding of the learned Subordinate Judge that the sum of Rs 89-15-9, which both Courts find to have been arrear of revenue on the 12th January, was payable for the December kist. The findings of the two lower Courts amount to this that what might be expected to happen, has happened. As the proprietor is safe provided he pays his revenue before the latest day of payment, the earlier date on which it is payable under the terms of settlement has been lost sight of in practice and the later date on which the kist must be paid is called the kist date. That is to say, the kist referred to as the January kist is not the kist payable in January under the Kistibandi but the kist for which the latest day of payment falls in January. Whether an unpaid instalment of revenue is an arrear of revenue is a question of law, so far as it depends on the application of the provisions of Act AI of 1859. But whether the unpaid amount Rs. 89-15 9 was payable according to the terms of the settlement in December 1907 or January 1903 is a question of fact. The Court of first instance has found that it was payable in December and as this finding has not been reversed by the lower Appellate Court, it is binding on us as a Court of second appeal. On this finding it follows that that there was an 'arrear of revenue' on the 1st January 1908 and as this arrear was unpaid on the 'latest day of payment' the 12th January 1908, the sale on the 25th March 1908 was not without jurisdiction. I, therefore, hold that the first contention of the appellants fails.

21. The second point taken by the appellants is that as the bidding opened with a bid of Re. 1 on behalf of the Secretary of State, the Collector was not legally entitled to purchase the property for Government at the highest bid that was made. It is found by the lower Appellate Court that when the sale was finally held a peon opened the bidding with a bid of Re. 1 as a matter of form according to custom. Even if it be held that this was a bid on behalf of the Collector, I cannot see why this should deprive the Collector, of his statutory right under Section 58 of Act XI of 1859 to purchase the estate on account of the Government at the highest amount bid, if the highest bid be insufficient to cover the arrears. The real meaning of the preliminary bid of Rs. 1 is that the Collector gives notice that he intends to exercise his powers under Section 58. If there is no bid the Collector would purchase the property at Re. 1 under the first provision of the section. If there were a bid of Re. 1 only the Collector would still purchase the property at that price under the second provision of the section. Consequently it would be useless for an intending bidder to make a bid not exceeding Re. 1 and the calling out by the peon of a Government bid of Re. 1 merely announces that. The facts of the case of Halim-un-nissa Chowdhurani v. Secretary of State 17 C. 1038 : 8 C. W. N. 880. can be distinguished from the facts of the present case and cannot be held to lay down as a principle of law that the commencement of the bidding according to the usual practice with a bid of Re. 1 for Government prevents the Collector from taking advantage of the provisions of Section 58. If the sale is conducted fairly as was done in the present case, I can see no objection to this practice.

22. I am further of opinion that the plaintiffs appellants are prevented by the provisions of Section 33 of the Act from raising this contention. This was not declared and specified in the appeal of either plaintiff to the Commissioner. The only ground that has any reference to Section 58 is the sixth ground in the appeal to the Commissioner of the second plaintiff Surja Kumar Lahiri, the patnidar of the estate sold. This ground is as follows: 'That it was illegal on the part of the Collector of Faridpur to bid and purchase the property for Rs. 50 on behalf of Government under Section 58 of Act XI of 1859 inasmuch as it does not appear that the bidders had refused to increase their bid.' Had this ground been set out with the omission of the final portion commencing from the words 'inasmuch as', it might perhaps be held to cover the point now urged. But when a ground which has been found to be untenable was specified, an entirely different ground, though covered by the preliminary ground, must be held to have been excluded. As pointed out by me in my judgment in Shamanta Radha Charan Das v. Sharfuddin Hossein 20 Ind. Cas. 423 : 41 C. 276 at p. 284 : 17 C. W. N. 1135. the effect of the Privy Council decision in the case of Gobind Lai Roy v. Ramjanam Misser 21 C. 70 : 20 I. A. 165 : 17 Ind. Jur. 536 : 6 Sar. P. C. J. 356 : 10 Ind. Dec. (n. s. 679 (P.C.). is to annul to a very great extent the distinction between illegalities and irregularities in applying the provisions of Section 33 and I hold that the present objection to the legality of the Collector's action under Section 58 was one that could not be raised in a civil suit if it had not been specified in the grounds of appeal to the Commissioner. I, therefore, hold that this second contention of the appellants fails both on the merits and on the ground that Section 33 of the Act precludes the plaintiffs from raising it in this suit.

23. The third point taken by the appellants is that the sale proceedings were void as the notices under sections 6 and 7 of the Act were signed by a Sub-Deputy Collector instead of by the Collector or other officer authorised to hold sales under the Act. The arguments on both sides are fully set out in the judgment that has just been delivered by my learned brother and it is unnecessary for me to repeat them. It is enough to state that I accept the contention on behalf of the respondent that there has been a sufficient compliance with the provisions of the Act if the Collector or other authorised officer settles or directs that the notices should be issued and the duty of signing the notices on his behalf may be delegated to a subordinate officer. As these notices were signed by the Sub-Deputy for the Collector, a legal presumption arises that the issue of the notices was directed by the Collector. I, therefore, decide this point also against the appellants.

24. The fourth and last point argued is that the sale is invalid on account of the notices under Section 7 having been published in the jurisdiction of the Paugsha Police Station instead of in that of the Baliakandi Police Station. The authorities cited by learned brother are conclusive against this contention.

25. I regret my inability to agree with the decision of my learned brother more particularly as the case is one of undoubted hardship, an estate found to be worth Rs. 3,000 having been sold for the inadequate price of Rs. 50. But on careful consideration I find myself unable to hold that the sale is invalid on any of the grounds urged and would, therefore dismiss this appeal with costs.

26. As we are unable to agree in this case, under Section 98, Civil Procedure Code, the decree of the lower Appellate Court is confirmed and the present appeal dismissed with costs.


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