1. This is an appeal from a decree passed by the Subordinate Judge of Murshidabad, setting aside a putni sale. The plaintiff held the mehal which formed the subject matter of the suit, eight annas in patni right and the other eight annas in durpatni right, the patnidars in respect of the latter share being the pro forma defendants 5 to 7. The principal defendant, the Raja of Nashi pur, is the zamindar. The patni was originally created in 1854. The plaintiff and the pro forma defendants 5 to 7 acquired it in 1902 and executed the usual security bond in respect of it and got their names recorded in the zamindar's sherista on payment of nazar. It comprises lands of three touzis, namely, Nos. 434 and 523 of the District of Murshidabad, and No. 1152 of the District of Birbhum. It goes by the name of Mehal Sail Mail and bears an annual jama of Rs. 12,350. For arrears of rent for the first half year of 1331 B.S. the defendant, the Raja, on 1st Kartick of that year, applied for sale of the patni mehal under Regulation 8 of 1819. The plaintiff objected to the proposed sale on the ground that the Regulation did not apply inasmuch as the mehal was comprised within more touzis than one. The Collector upheld the objection and rejected the application for sale. On appeal by the defendant the Commissioner affirmed the Collector's order on 13th May 1925. In the meantime the rent for the next half year having fallen in arrears the defendant' on 1st Baisak 1332(=15th April 1925) made another application for the sale of the mehal under the said regulation for the entire amount of arrears of rent for 1331 B.S. The sale was fixed for 1st Jaistha 1332(=15th May 1925).
2. The plaintiff put in an objection on the ground already mentioned as also on other grounds, and in support thereof filed certified copies of the order of the Collector and of the Commissioner in connexion with his objection in the previous application for sale, to which reference has already been made. That objection was heard at 2 p.m. on the said 15th May 1925, the date fixed for the sale, by the then Collector Mr. W.S. Adie, who for reasons to which it is not necessary to refer, disagreed with the view taken by his predecessor and did not feel bound by the decision of the Commissioner and verbally rejected the plaintiff's objection. What happened next is a matter of controversy between the parties, and of it two versions have been given. (Versions of both parties were then stated and the judgment proceeded.) The accounts of the events set forth above have been taken from the pleadings of the parties and they represent only the bare outlines of the two stories in the main features which were developed in much fuller details in the evidence adduced, but with variations, here and there, which are not worth mentioning.
3. On 19th May 1925 the defendant put in the balance of the purchase money, that is to say, Rs. 13,600, and the Collector thereupon confirmed the sale on the 20th. The plaintiff then appealed to the Commissioner, who held that the sale was illegal and invalid and ordered the sale certificate issued by the Collector to be cancelled. The sale certificate was accordingly cancelled on 24th August 1925. The defendant thereupon moved the Board of Revenue who, on 8th February 1926, expressed the view that the sale was illegal, but that neither the Commissioner nor the Board of Revenue had jurisdiction to set it aside, and the plaintiff would have to seek his remedy if he so desired in the civil Court. The plaintiff accordingly instituted the present suit on 13th February 1926. The Subordinate Judge has decreed the suit and set the sale aside. From this decision the defendant has appealed. The validity of the sale was challenged on behalf of the plaintiffs on various grounds on some of which the Subordinate Judge held in plaintiff's favour and on the others in favour of the defendant. Connected with the appeal therefore there has been a cross-objection preferred on behalf of the plaintiff as respondent in the appeal.
4. Before dealing with the grounds urged in the appeal and the cross-objection it would be convenient to dispose of a preliminary objection taken on behalf of the plaintiff as regards the maintainability of the appeal. The substance of the objection is that under an order made by this Court on 13th May 1929 the plaintiff, who is still in possession, has been paying in the patni rents and the defendant has been withdrawing the same and that therefore the defendant is precluded from questioning any longer the validity of the decision of the Court below by which the sale was set aside and the plaintiff was restored to his rights as the holder of the patni notwithstanding the sale that had taken place. In our opinion, there is no force in this objection because the withdrawal and acceptance of the rents on the part of the defendant have been under the order of this Court, made in pursuance of an arrangement which the parties suggested and which obviously was intended to operate without prejudice to their rights in the appeal. It cannot be suggested that the defendant in withdrawing and accepting the rents as aforesaid has taken a benefit under the decree of the Court below so as to be estopped from questioning the validity of that decree any longer.
5. It will be convenient to deal with the cross-objection first because the grounds urged in connexion with it may be disposed of quite shortly and none of them, in our opinion, ought to succeed. These are grounds as regards which the Subordinate Judge has held against the plaintiff.
6. The first ground is that inasmuch as the patni comprises lands of three touzis or estates, two of which are in the District of Murshidabad and one in the District of Birbhum, the provisions of Regulation 8 of 1819 would not apply to it. The substance of the contention is that the patni taluk being an offspring of a touzi or an estate cannot be more extensive than the touzi or the estate itself. This contention is supported by certain decisions of the revenue authorities with regard to the same patni (vide Ex. 7, 7(a) and 7(b), and what was said in Note 31 to Section 8 contained at p. 202 of the Board's Manual of the Revenue and the Patni Sale Laws, 1928. It was however held by this Court in the cap of Manindra Chandra Nandi v. Annada Mohan Rai (1912) 15 IC 586, that the contention is not well founded and that there is nothing in Regulation 8 of 1819 to justify the view that a patni tenure consisting of lands situated in more touzis than one is not a taluk under that Regulation or that it cannot be sold under it. It is interesting to note that Note 31 referred to above has been abrogated by the Board by a Resolution passed on 10th June 1929. Certain anomalies and difficulties which are supposed to ensue from such a view have been pointed out to us, but whatever the peculiar results might be in any particular case we are not prepared to hold that the view is not correct. It is not suggested that by reason of a part of lands of the patni being situated within the Collectorate, the Collector of Murshidabad had no jurisdiction to sell the patni or that the Collectorate of Murshidabad does not satisfy the requirements, Section 3, Act 6 of 1853 and Section 3, Act 8 of 1865.
7. The second contention is that the Collector had no jurisdiction to hold the sale in spite of the decision of the Commissioner to the contrary. The Commissioner's decision (Ex. 7) passed on 13th May 1925 appears to have been brought to the notice of the Collector on 15th May 1925 (vide Ex. 5). The Collector was not altogether conventional in refusing to follow the ruling of the Commissioner, a superior revenue authority, and especially as the latter was amply supported by the view of the Board of revenue as it then was. But for the purposes of the Patni Regulation the Commissioner is not an appellate authority in his relation to the Collector. It is not possible therefore to hold that the Collector had no jurisdiction to hold the sale in spite of the view which the Commissioner had expressed: vide also Ex. 7 (b).
8. The third ground taken is that the postponement of the sale to a future hour and the holding of the sale at that hour was without jurisdiction, or in any event was irregular and occasioned an injury to the plaintiff because most of the bidders had by that time left the Court. The facts are that the property was put up for sale about 2 p.m., and time was granted to the plaintiff at his request for bringing and paying in the money and when about 5 p.m. the money did not arrive, the sale was held. The Subordinate Judge has held that the sale in question was not held in the order provided for in the regulation, but that this irregularity had been waived by the plaintiff because it was at his instance that the sale was adjourned to 4-30 p.m., and as the plaintiff must have foreseen the circumstances under which the sale would be then held, he cannot be permitted to complain. It is quite true that once the sale commences, the notice under Section 8 being taken down, it has to be conducted by calling up the lots successively in the order in which they may be found in that notice (Ss. 9 and 10) and no sale shall be stayed or postponed on any account unless the amount of the demand be lodged: Section 14.
9. But in this case it is not at all clear that the sale had so commenced or that when the Collector took up the matter at 2 p.m. he intended to proceed with the sale any more than to deal only with the objection of the plaintiff. If at that point of time, on the plaintiff's objection to the sale being verbally rejected, the Collector at the plaintiff's request granted him time to pay in the arrears and adjourned the sale to a future hour, the plaintiff should be the last person to be allowed to say that the Collector acted without jurisdiction. What Section 10 speaks of is the calling up of the lots in the order in which the lots are mentioned in Section 8, which is an entirely different thing from what is complained of by the plaintiffs so far as this ground is concerned. To get over the effect of the consent which had been given on the plaintiff's behalf it was suggested in the plaint and attempted to be proved on behalf of the plaintiff that the order (Ex. A) which bears date 15th May 1925 did not contain a correct recital of facts and was not passed by the Collector at the time. And this position is sought to be supported by the petition, Ex. 1 (a), which the plaintiff made to the Collector on 20th May 1925, and on which the only order passed by the Collector was 'File.' We are not prepared to hold that the plaintiff has been successful in establishing the position he contends for. In our opinion it is clear beyond doubt that there was consent on the part of the plaintiff to have the sale held on that day if the dues were not paid by 4-30 p.m. We think the plaintiff having himself obtained the order for adjournment and for a sale at a future hour in case of default, must be taken to have waived all such objections as were the results which that consent produced.
10. It has then been urged that the finding of the Subordinate Judge that the notice which is necessary to be served at the mofussil, namely, at the principal town or village upon the land of the defaulters' was duly served, is wrong and unjustified on the evidence. We have examined the evidence bearing upon this point and we see no reason to dissent from the view which the Court below has taken. The appellant has applied to tender as a piece of additional evidence a school register in order to contradict D.W. 2, Mohamed Matlab Hossein, who is one of the witnesses to that service; but to receive such evidence at this stage would obviously be very unsatisfactory and we have accordingly rejected this application.
11. Another objection taken, which however was not taken in the Court below, is that the cesses which formed a part of the arrears for which the sale was held could not be realized by a sale under the regulation. It appears that by the terms of the Patni Kabuliyat of 1854 (Ex. J) the patnidar remained bound to pay any additional revenue for any new impost which might be levied by the authorities on the zamindaries.' That cesses fall within these words cannot be disputed. There being no other means suggested the kabuliyat for realization of the demand as to cesses and a sale under the regulations, it is only a fair construction to put on the document to hold that the intention of the contract was that the additional imposts were to be treated as part of the patni rent and realized as such. We may point out, though not as an authority on the question, that the recovery of interest and cesses under the regulation is a practice sanctioned by the Board of Revenue: vide Board's Manual of Revenue and Patni Sale Laws, 1928, p. 203, Note 32.
12. The objections which the defendant took in the Court below as regards the maintainability of the suit were decided against him and they have not been repeated before us. To resist the plaintiff's claim a further objection was taken, namely, that the plaintiff was not competent to challenge the validity of the sale for two reasons: firstly because, as it is said, the plaintiff had never before taken any exception to a sale of the Patni under the Regulation; and secondly because the plaintiff had waived all irregularities in connexion with the present sale by asking for an adjournment of it and consenting to it being held at 4-30 p.m. on the day in question. Both the grounds have been overruled by the Subordinate Judge and we are in entire agreement with him so far as this matter is concerned. It appears to be an admitted fact that on all occasions previously when proceedings under the Regulation were applied for the plaintiff deposited the zamindar's dues and prevented the sale, and it was only when the rent for the first half year of 1331 fell due and sale was applied for and the plaintiff was not able to pay the same that he took the objection. In such circumstances it cannot be contended that there was anything in the plaintiff's previous conduct which precluded him from taking the objection: he had never allowed a sale under the Regulation to take place. The application that was made for adjournment of the sale and in consequence of which the sale was adjourned to 4-30 p.m. can, in our opinion, in no view of the case be regarded as a waiver of all antecedent irregularities, if any, but only a waiver of such irregularity as was necessarily due to what was done at his own request, namely, by the adjournment of the sale.
13. We have now to deal with such of the grounds as have been found in favour of the plaintiff and on which the Court below has set aside the sale and which consequently form the subject-matter of the findings which the appellant assails in his appeal. In this connexion the first and most important question to consider is what exactly took place at the sale that was held. The plaintiff's allegation was that the Collector told the defendant's agents, Babu Purna Chandra Chatterjee, and Babu Anil Kumar Chatterjee, that if the money would be paid by the plaintiff on the next day, i.e. 16th May, he would cancel all papers, etc., relating to the proceedings that were being held and the said two agents consented to the proposal of the Collector and gave an undertaking that they would receive the money and let the proceedings be annulled. The defendant, on the other hand, denied that there was any such proposal made by the Collector, or any such undertaking given by the defendant's agents. The Collector Mr. Adie undoubtedly would have been the best witness to speak on this matter, but he has not been and indeed could not be examined on either side because he was on leave at the time when and for a long time before the trial took place in the Court below. We may say here that we do not agree with the Subordinate Judge in his view that it was the defendant's duty to examine him; in our opinion, that was no more the defendant's duty than it was of the plaintiff, but we cannot blame either party for his non-examination because in point of fact he was not available. (Evidence as regards the version of what occurred was considered and the judgment then proceeded). In our judgment the interest which the Collector took, and in our opinion rightly took, in seeing that the defendant's agents should act up to the undertaking that had been given, and the conduct of Purna Babu in drawing up the draft, when admittedly he had no authority from his principal to allow the sale to be cancelled, lead unmistakably to the conclusion that the sale must have been held on an understanding such as has been spoken to on behalf of the plaintiff. The account given on behalf of the defendants, of the events that followed the sale, would not, in our opinion, sufficiently explain the aforesaid two facts.
14. To our mind it is plain beyond doubt that Purna Babu, although he had no authority from his principal, had readily agreed to the proposal which the Collector had made and which was a very fair one, and had assured the Collector, as one might naturally do, that he was really concerned with the money and did not care for the property, that out of the best of motives he agreed to accept the money and not proceed to complete the sale, should the money arrive, that he honestly thought that his principal would consent to the course if all future troubles would be saved, and that he quite honestly suggested the conditions that the plaintiff should also agree to in order that objections might not be raised to a sale of the patni in future. But it seems that he had counted without the host, for his principal evidently did not ultimately agree to forego the bargain that he had made, and consequently the negotiation fell through. The result was that the Collector was unable to do anything further in the matter and had to conclude the sale on 20th with the following order:
The purchaser paid Rs. 2,400 on the date of sale which was kept in a bag in the Treasury (vide T.O.W. receipt dated 15th May 1925) and was credited into the Treasury on 18th May 1925 (vide Chalan No 109 Revenue deposit, dated 18th May 1925). The balance of the purchase money, Rs. 13,600, thirteen thousand and six hundred, was deposited by Chalan No. 113 dated 19th May 1925. The sale is concluded.
15. These, in our judgment, were the facts. But there is one aspect of them which, in our opinion, requires very serious consideration. There can be no doubt that the sale was held on the clear understanding that should the money come, the sale would not stand. Four bidders bid at the sale. Of them, the bids for the zamindar were the initial bid of Rs. 10,000, an intermediate bid of Rs. 14,000 and the final bid of Rs. 16,000. The three other bidders offered Rupees 12,000, Rs. 13,000 and Rs. 15,000 respectively. The plaintiff's allegation was that
the two agents, on behalf of the zamindar having consented thereto (i.e., to receive the money should it arrive) the Collector did not allow the intending purchasers who were present to offer any further bid.
16. P.W. 2, Jnanendra Mohan Sircar, says:
People were present in the Court at the time of the sale to the extent of 10 or 15, and some of them bid at the sale, but the Collector told them not to bid as, if the plaintiff's men came with money, it would have to be accepted and the bidder's money returned and after that no one bid for the property at the sale.
17. P.W. 5, Kristonath Gupta, says:
There were 2 or 3 bids including the last bid of Purna Babu and then the Collector said that when the sale would be cancelled upon payment further bidding was not necessary. No one else bid after that.
18. P.W. 8,Dhirendra Chandra Das Gupta, says:
In holding the sale the Collector repeated with Purna Babu once or twice that if the money came he would have to accept it and Purna Babu expressed his assent to it * * * when the bidding was going on the Collector said that if they would take the money when it came, there was no use for much bidding, and after that Purna Babu bid and no other bidders did so.
19. The Nazir, D.W. 1 Gobinda Gopal Mazumdar, whose evidence on this point is on a par with what it is on all other points, says:
I do not remember whether when bidding was going on the Collector said that it was no use bidding as the money would be paid the day after and the sale cancelled.
20. On the evidence quoted above, which we see no reason to disbelieve and which fits in very well with the probabilities of the ease, we have no hesitation in holding at least this: that everybody present at the sale was under the impression that if the money would arrive the sale would not be effective. That the facts were as we have found clearly appears from a petition which was filed before the Collector on behalf of the plaintiff on the very next day, viz., the 16th: vide Ex. 1 as appears from the Collector's initials with that date underneath the same, in which it was said:
Both the agents of the zamindar having agreed to that and having given express undertaking to that effect you did not allow the bidders present to bid any further.
21. The story given in the plaint was the story given on the very next day, and it is inconceivable that it could find a place in this petition unless it was substantially true or that it would not have been challenged if it was not so. An auction sale held under such circumstances is not a sale with free and unrestricted competitive bidding which is its essential characteristic and is not a sale which can be upheld. Added to it is the patent fact that the sale, such as it was, fetched a ridiculously low and utterly inadequate price which cannot but have been its direct result. The patni rent for one year was Rs. 13,000 and odd and the patni itself was knocked down for Rs. 16,000. The plaintiff's case is that its value is Rs. 5 lacs, but in any case it is evident that it is nowhere near what it has fetched.
22. Two other points have been found in favour of the plaintiff by the Subordinate Judge and as they have formed the subject of the appellant's attack it is as well that we should deal with them quite shortly.
23. The Subordinate Judge has held that there was no comprehensive application and notice in this case, such as is required by Section 8, Clause (2) of the Regulation. The application that was made is Ex. E and the notice that was put up is Ex. 12. The Subordinate Judge found on a comparison of these two with the notice Ex. H that was put up on the same day at the zamindar's kutchery, that in Ex. H a very large number of tenures were mentioned as being in arrears, while in Ex. E and Ex. 12 it was this one tenure that was asked to be sold and advertised for sale. The conclusion that he has arrived at on this comparison is that inasmuch as there were other tenures which were in arrears in Ex. H and the zamindar mentioned only this particular tenure in the application Ex. E and in the notice Ex. 12, the requirements of the section were not complied with. We are unable to agree with the view which the Subordinate Judge has taken. It has not been proved that there was any other patni tenure of the zamindar that was sought to be proceeded against under the regulation; and so long as that has not been proved, the mere fact that there were other patni tenures in arrears as shown in the notice put up at the zamindar's kutchery would not mean that the application and the notice were not the comprehensive ones required by Section 8.
24. It is not wholly easy to construe a Regulation of 1819, which was concerned with a zamindari as the unit in its relation to touzis created long after and several of which may be within one zamindari. But we are not called upon in this case to determine whether a petition in which all the patnis within one particular touzi are mentioned and a notice of similar purport would not be enough or whether the petition and the notice should not contain all the patnis within the entire zamindari. But we are not prepared to hold that it is necessary to state in the application or in the notice any patni which may be in arrears but in respect of which the zamindar does not desire to proceed. It is true that an omission to issue a general notice as required by Section 8 is fatal: Bhupendra Narayan Sinha v. Madar Buksh 0049/1925 . But from the decision of the High Court in Bhupendra Narain Sinha v. Madar Buhsh AIR 1921 Cal 296 which the Judicial Committee affirmed by the decision cited above it would appear that in that case what was contained in the notice was one patni only while from the evidence it appeared that there were about 40 cases under Regn. 8 in which the zamindar was interested. In the case of Bejoy Krishna v. Lakshmi Narain (4) it was pointed out that the lots to be sold are to be mentioned in the notice under Section 8, Clause (2) and that under Section 10 the sale should take place in the order given in the notice. The plaintiff-respondent, after the hearing of the appeal was over and while the case stood over for judgment, put in an application for letting in some additional evidence to show that there were other patnis in respect of which the defendant is the zamindar and which were also sold under the regulation at the said sale. We have rejected this prayer as having been made too late.
25. The Subordinate Judge has also been at great pains to hold that the notice that was put up at the Collector's kutchery was not put up at a conspicuous place as required by Section 8, Clause (2) of the regulation. We have examined the evidence that there is on the record on this point and we think that this conclusion is wholly untenable. There is a large body of evidence which establishes that the place inside the Nezarat where the said notice was put up is the usual place where such notices have always been affixed and that the public have free access to the place and everybody interested in matters of this description knows very well that it is to be found there. The word 'conspicuous' must be a relative term; and upon such evidence as there is on the record it is impossible to hold that the place in question is not a conspicuous place. Reference in this connexion may in particular be made to the evidence of the Collectorate Nazir, D.W. 1 Gopal Gobinda Mazumdar, and the plaintiff's own witnesses such as P.W. 2 Jnanendra Mohan Sircar, P.W. 5 Kristo Nath Gupta, P.W. 6 Shyamapado Gupta and P.W. 7 Dwijendra Nath Lahiri.
26. The result is that in our opinion the appeal should be dismissed and we order accordingly. The respondent will be entitled to his costs.
27. The cross-objection is also dismissed but with no order as to costs.