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Manoda Mohini Das W/O Girish Chandra Mondal Vs. Sm. Sakina Bibi W/O Dr. Muhammad Ali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1938Cal738
AppellantManoda Mohini Das W/O Girish Chandra Mondal
RespondentSm. Sakina Bibi W/O Dr. Muhammad Ali
Cases Referred and Basarathi Ghosh v. Khondkar Abdul Hannan
Excerpt:
- .....officer in the touzi manual. as this was a case of payment in cash, by chalan, the appropriate rule is rule 62. under sub-rule (ii) of rule 62, whenever such chalan is presented on behalf of a proprietor, the officer in charge has got inter alia to compare the chalan with the touzi ledger and see that the name and number of the estate and those of its separate account, if any, are correctly entered. he is not concerned with the name of the proprietor, or of the amount of revenue paid. the question as to whether the touzi roll did or did not contain the names of the proprietors is in my opinion really immaterial. it is not the duty of the officer to look to the name at all. if he notices any discrepancy between the touzi ledger and the chalan as regards the name or number of the.....
Judgment:

B.K. Mukherjea, J.

1. This is an appeal on behalf of the plaintiff, and it arises out of a suit commenced by her for a declaration that the sale of touzi No. 2881/8 D plot 5th portion of the 24-Parganas Collectorate, held by the Collector under Act 11 of 1859 was illegal and ultra vires, and did not affect her interest. There was also a prayer for a permanent injunction restraining the defendant from taking possession of the estate. The facts lie within a narrow compass and are for the most part undisputed. The plaintiff had a two annas share in touzi No. 2881 of the 24-Parganas Collectorate, and there was a separate account opened in respect of that share which was S. A. No. 2881/8. The total revenue fixed for this separate account was Rs. 139-8-0 and this was payable in three instalments to wit, in January, March and June every year. The plaintiff's case is that she deposited the revenue due for the January kist of 1934, amounting to Rs. 27.11.0 in the Collectorate on 26th January 1934, by a chalan which is Ex. (6) in this case. The chalan gave the name of the proprietor quite correctly as also the revenue due for the January kist, but owing to inadvertence of the scribe, the touzi was described as the parent touzi No. 2881 and not S. A. No. 2881/8. The result was that the amount was credited to the residuary share of touzi No. 2881 and the separate account No. 2881/8 remained in arrears. As however the whole estate was not in arrears owing to some advance payments that were made in respect of the same, the separate account No. 2881/8 was not put up to sale at that time. The plaintiff paid her dues for March and June kists in proper time, but as her separate account was shown to be in arrears from January 1934 and a sum of Rs. 16 as odd was found due in respect of the estate and remained unpaid by the end of March 1934, the separate account No. 2881/8 was put up to sale on 24th September 1934 and purchased by the defendant for a sum of Rs. 80 only. The plaintiff says that she was not aware of this sale and came to know of it for the first time in January 1935, when she wanted to put in the dues for January of that year. She thereupon instituted the present suit, and her case in substance is that the sale was ultra vires and as there was no arrears due in respect of her separate account, the Collector had no jurisdiction to put it up to sale.

2. The trial Court decided the point in favour of the plaintiff. The Appellate Court on the other hand has reversed the decision and dismissed the plaintiff's suit. In arriving at his decision, the Munsif relied to a great extent upon the provisions of Rule 19 of the Bengal Touzi Manual, which prescribes the way as to how a touzi roll should be prepared. Sub-rule (4) of Rule 19 indicates that if separate accounts are opened in respect of a touzi, the names of the different proprietors should appear against the respective numbers. The Munsif was of opinion that if the roll had been duly prepared in compliance with the provisions of this Rule, the name of the plaintiff would have appeared against S. A. No. 2881/8 and as the chalan contained the name of the plaintiff, the clerk could have at once detected in respect of which separate account the sum was actually. paid. The Special Subordinate Judge on the other hand has held that the Rule mentioned above was no longer in force, and that there was no necessity of mentioning the name of the owner against the separate account, to denote the estate in the roll of the ledger. The clerk was quite justified therefore in ignoring the name and crediting the amount to the residuary estate according to the' number of the touzi mentioned in the Chalan. It is this view that has been challenged by the appellant before me.

3. This being a suit for a declaration that the sale was a nullity on the ground that there were no arrears, the existence of which alone could authorize the Collector to hold the sale, it is incumbent upon the plaintiff to establish that the Collector was in possession of money belonging to the plaintiff and indisputably placed to her credit. When the estate has been correctly described and money paid to the credit of the estate, no sale under law is permissible and it is immaterial that certain erroneous debit entries were made by the Collectorate officers to which the proprietor was not a party: vide Balkishen Das v. Simpson (1898) 25 Cal 883. When however there is a misdescription of the touzi and it is not undisputed that money has been placed to the credit of a particular estate, different considerations arise. The Collector may in such cases justly hesitate to credit the amount to one estate rather than to the other. The rules framed by the Revenue Department make detailed provisions, as to the duties of the Collectorate Officers who are entrusted with the charge of receiving these payments in such cases. In oases of remittances through Post Office where owing to errors or omissions there is uncertainty as to whether a remittance can be correctly credited according to the intentions of the remitter, the officer has got to make a note, and he is required further to ask the remitter to send him the other particulars that might be necessary : vide Rule 102. Where there is a violation of these rules by the officers concerned and the proprietor is not given an opportunity to rectify the mistakes, a sale without giving the proprietor such opportunity has been held to be without jurisdiction: Hamid Hosain v. Mukhdum Reza (1905) 32 Cal 229 and Basarathi Ghosh v. Khondkar Abdul Hannan : AIR1928Cal68 .

4. In the present case, having regard to the fact that the touzi number was not correctly given, it cannot be said that the money was indisputably placed to the credit of the estate, which has been sold by the Collector under the Revenue Sale Laws. The question therefore narrows down to this, as to whether there was any omission of duty on the part of the Collectorate Officer, which deprived the plaintiff of an opportunity of rectifying the mistake that had crept in the description or number of the touzi. To decide that question we will have to come to the rules laid down for the guidance of the touzi officer in the touzi manual. As this was a case of payment in cash, by chalan, the appropriate Rule is Rule 62. Under Sub-rule (ii) of Rule 62, whenever such chalan is presented on behalf of a proprietor, the officer in charge has got inter alia to compare the chalan with the touzi ledger and see that the name and number of the estate and those of its separate account, if any, are correctly entered. He is not concerned with the name of the proprietor, or of the amount of revenue paid. The question as to whether the touzi roll did or did not contain the names of the proprietors is in my opinion really immaterial. It is not the duty of the officer to look to the name at all. If he notices any discrepancy between the touzi ledger and the chalan as regards the name or number of the touzi, he should refuse to accept the chalan, unless the errors are rectified. But whereas in the present case there is actually an estate in the ledger having the identical name and number as were given in the chalan, it was no part of the duty of the Collectorate Officers to go further and inquire as to whether the name of the proprietor had been correctly given, or that the amount paid was what was payable actually for that particular kist.

5. I am unable therefore to hold that this is a case where according to the principles laid down above, the sale can be treated to be one without jurisdiction. Undoubtedly it is a very hard case, and owing to a trivial error on the part of the scribe and for no fault of the proprietor, a most valuable property was sold for a grossly inadequate price. The plaintiff should have approached the revenue authorities who could have annulled the sale on grounds of hardship and I am not sure, that it was not possible for the plaintiff to apply for and obtain an extension of time even if she came to know of the same after the period for filing an appeal before the Commissioner had expired. There is however no provision of law, under which a Civil Court can interfere and set aside the sale on grounds of hardship alone. The result is that the appeal fails. I direct that the parties should bear their own costs throughout.


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