1. A preliminary objection was taken as to the competence of the plaintiff to bring this appeal or indeed to sue at all in respect of this estate on the ground that the estate had passed out of her hands by sale under a mortgage decree.
2. This sale in execution, however, was held on the 19th June 1907 and the Revenue sale now in dispute was held on the 26th March 1907.
3. The decree on the mortgage has, moreover, been impugned in a Regular suit and the matter has been carried to His Majesty in Council. We are asked to postpone the hearing of this appeal until the decision of their Lordships of the Privy Council in the suit to set aside the mortgage decree.
4. This we decline to do on the simple ground that there was an interval of nearly three months between the Revenue sale and the mortgage sale and should the plaintiff succeed in this suit she would be entitled to mesne profits out of the estate from the date of the Revenue sale till the date of the mortgage sale and, therefore, has a subsisting interest in the estate itself and can, therefore, carry on this appeal.
5. This is an appeal from the judgment and decree of the Subordinate Judge of Midnapur dismissing plaintiff's suit to cancel an alleged Revenue sale under the following circumstances:
6. The plaintiff, a purdanashin lady, purchased an eight anna share of mahal Gunotipota No. 944 Touzi in the Midnapore Collectorate, at a Civil Court sale on the 21st September 1904. The eight annas share was a separate Revenue paying estate known as separate account No. 1.
7. There was an arrear in the kist for January 1907 and on the 25th March 4907 the plaintiff applied to the Collector praying for exemption from sale of the said share upon payment of the revenue in arrear vide Exhibit 7, page 25, Paper Book.
8. On this the Collector endorsed: 'May be accepted if paid to-day'.
9. The plaintiff's Karpardaz thereupon went to the arrear collection mohurir for information as to the Government demands due which were required to be paid. The information given to him was that Rs. 807 was the total amount due and this sum was deposited on the same day.
10. It appears that a certificate which had been issued against the plaintiff for Rs. 69-13-9 for arrears of embankment charges (pulbandi) was not mentioned to the plaintiff's agent and accordingly was not paid. On the following day, March 26th, the estate was put up for sale under Act XI of 1859 and not under the certificate and sold for the nominal price of Rs. 500, the property being valued at Rs 50,000. The defendant No. 2 purchased it and subsequently sold it to defendant No. 1. The plaintiff's appeals to the Commissioner and to the Board of Revenue were dismissed and she, therefore, brought this suit.
11. We may mention that although the point now in issue, namely, whether the estate could be sold for arrears of pulbandi only under Act XI of 1859 without taking the necessary steps under Section 5 of the Act, was raised in express terms in the appeal to the Commissioner, it does not appear that the point was urged before him, or, if it was, he did not consider it necessary to notice it. The question, however, which would arise under Section 33 of the Act is not material inasmuch as it is admitted that if this was a sale under the Revenue Sale Law at all, it cannot be set aside.
12. The only point, which really arises in this case, is whether the sale for an arrear of Rs. 69-13-9 for pulbandi, which was already the subject of a certificate, the sale under which was fixed for the same day 26th March, could be held under the Revenue Sale Law in face of the fact that the Collector's Ledger Book, the chalans given to the plaintiff, the robkari of the 24th May 1907 and the order for sale on the Account List of arrears of Revenue payable all show that the Revenue and other charges had been fully paid up and that nothing remained due but the sum of Rs. 69-13-9 under the certificate No. 4654. The Account List on pages 9-16 of the Paper-Book clearly refers to the certificate which will be found on page 36, Paper-Book and the Collector must have known, when he passed the order, that the only debt due from the estate was already the subject of a certificate decree or if he did not, the plaintiff ought not to suffer for his laches. Now the certificate was issued not only against the plaintiff as proprietress but against one Jogendra Nath Pathuk, the usufructuary mortgagee in possession and this is urged as a further ground for holding that the estate could not be sold under Act XI of 1859 as for an arrear of Government Revenue. No arrear of Government Revenue was or could be due from Jogendra Nath Pathuk, yet he was equally liable with the plaintiff for the pulbandi arrear for which the estate was actually sold.
13. The Sub-Judge refused to admit the Collector's Ledger as it was tendered at a late - stage of the case, but we thought it right to admit it as a public document about which there was no dispute and the learned Vakil for the Respondents very frankly admitted that he could have no objection to its going in, though he asked us at the same time to take in the judgment in appeal of the Commissioner. This we saw no objection to doing and we have already dealt with it above.
14. We may point out that there is evidence that the existence of the arrear of Rs. 69-13-9 may have purposely been withheld from the plaintiff for we find certain pencil calculation on the back of Exhibit I showing that the person, who estimated the plaintiff's dues at Rs. 807-1-1, had Exhibit I actually before him and in his hands when he made the calculation. One of the witnesses, who knows the mohurir Prabhat Chandra's handwriting well and who attests it in the entries made in ink in Exhibit I, does not venture to deny that the pencil entries are his but says he cannot make out in whose writing they are. This witness Utpal Chandra Bhutacharya, Land Revenue Touzi mohurir, says that parties have always made all necessary enquiries from Prabhat and this practice has been going on ever since he joined the Department. He significantly asks: 'From whom but Prabhat Babu should parties get these informations as to how much is deposited?' and this rather discounts the value of the Commissioner's judgment which is based on the fact that plaintiff's agent had no business to rely on casual enquiries from a busy man like the mohurir, Prabhat, oil the day before the sales. Prabhat himself gives a very half hearted denial to the pencil entries and we must take it that he alone had the opportunity of making them. He does not deny that the karpardaz came to him for information but says he does not remember, but he admits that he was the man who the very next day certified to the Collector that Rs. 69-13-9 remained unpaid without drawing any attention to the fact that this sum was due under a certificate for pulbandi, although the order sheet was before him and he boasts in his evidence that he could not make an incorrect statement under those circumstances. Yet the order sheet (pages 9-16) clearly shows the reference number of the certificate on the face of it.
15. We fully appreciate the improtance of the dictum of their Lordships of the Judicial Committee in the case of Gobind Lal Boy v. Sam Janam Misser 21 C. 70 at p. 83 : 20 I.A. 165 that anything which impairs the security of purchasers at Revenue sales tends to lower the price of estates put up for sale and that the purchaser should not be exposed to the danger of having his sale set aside after a year upon new grounds.
16. But the ground taken in this case is not new. It is the ground that has been apparent on the face of the Collectorate proceedings from the beginning and was taken on the grounds of appeal to the Commissioner. Having regard to the carelessness apparent in this case with which any and every statement of a mohurir is accepted by the Subordinate Revenue officers and passed on to the Collector and to the immense temptation these mohurirs are under to traffic in Revenue sales, we think that the evidence of the bona fides of the mohurirs should be most carefully scrutinized and when as in this case there appears prima facie suspicion of misrepresentation, the technical effect of the Collector's order should be very strictly interpreted in favour of the plaintiffs.
17. There is no direct evidence of an attachment under the certificate for Rs. 69-13-9 but the certificate itself obtained the force of a decree on the 12th March 1907 when it was filed and the order for sale on 26th March, which was passed on the same day, is clearly an order for execution of the decree by sale and operates as an attachment within the meaning of Section 17, for the words of that Section are not 'ordered to be attached' but 'held under attachment by the Revenue authorities otherwise than by order of a Judicial authority,' but the sale is not bad on that ground alone since the attachment, if any, was made after the last day of payment and after the estate had become liable to sale for arrear of Government Revenue--Bunwari Lall v. Mohabir Persad 12 B.L.R. 297 : 1 I.A. 89. But the main ground for holding that the sale must be set aside is that it is not for arrears of Revenue at all. Section 33 says 'no sale for arrears of Revenue shall be annulled by a Court of Justice', it does not say 'no sale purporting to be for arrears of Revenue shall be set aside'. It is in vain to say that the Collector could have sold the estate for arrears of embankment charges if he had not issued a certificate and had proceeded under Section 5 of the Act.
18. It is urged that the omission to proceed under Section 5 is a mere irregularity but their Lordships of the Judicial Committee did not lay this down in Gobind a Lal Roy's case 21 C. 70 at p. 83 : 20 I.A. 165, and the only authority we have been referred to, the case of Deonandan Singh v. Manbodh Singh 32 C. 111, merely says that the non-issue of a notice under Section 5 is an irregularity which does not make a sale a nullity unless the ground has been specified in the appeal to the Commissioner. This case is rather in plaintiff's favour and in any case no notice under Section 5 was held to be necessary in that case as the arrears were not other than those of the current year and of the year immediately preceding.
19. But to say that no notice under Section 5 is necessary when the sale is not for arrears of Revenue at all but for other demands recoverable by the same process as land revenue is going very much further than any authority with which we are acquainted, more especially when the arrears of pulbandi are already under process of recovery by the certificate procedure.
20. It is useless to enter into an examination of all the facts and documents referred to by the learned Sab-Judge. The first five issues which he set himself to try were decided in favour of the plaintiff. The 10th issue was the most important in the light of the questions as framed and the principal part of his judgment is upon this viz., whether there were any arrears of revenue due by the plaintiff for which the property was sold.
21. It is, of course, perfectly clear that the headnote to Exhibit 12, which is the certified copy of the Collector's order Exhibit I, is not part of the document at all. But we have the whole document in original at pages 9-16 and that document shows that the Collector was misled into thinking that the arrear of Rs. 69-13-9, which clearly appears by the reference to the certificate to be an arrear of pulbandi, was as a matter of fact an arrear of revenue, and on this he ordered an immediate sale on the sale proclamations already issued under Section 6 of Act XI of 1859. The proclamation is to be found on pages 76-77 and shows that the arrear of Land Revenue was Rs. 547-10-10.
22. Now it is clearly established by the Collectorate Ledger exhibited in this Court, by the chalans Ex. 2 (series) pages 12-16 supplemental Paper-book and by the Collector's robkari on the 24th May 1907 that this Rs. 547-10-10 had been fully paid up and receipts granted for it. It is true no formal order of exemption had been passed in respect of it and, therefore, the estate was still liable to sale for this arrear as advertized, but it is equally clearly established by these same papers that the estate was not sold for those arrears but for Rs. 69-13-9 due for pulbandi under the certificate, These are all the findings of fact that are necessary to dispose of issues Nos. 6 to 10.
23. Applying the law as we understand it and following the principles laid down by the Judicial Committee in the case of Gobinda Lal Roy v. Ram Janam Misser 21 C. 70 at p. 83 : 20 I.A. 165, we are of opinion that the sale as held on the 26th March 1907 was not a sale for arrears of land revenue and that it was not competent to the Collector to hold such a sale under Act XI of 1859.
24. It appears to us that when the Collector has acknowledged payment in full of the arrears of land revenue for which the sale was advertized and has elected to proceed by certificate procedure against an arrear of a different character and has already directed a sale under that procedure, he cannot turn round and treat the arrear under the certificate as an arrear of Land Revenue without any notice to the parties under Section 5, and proceed to sell the property under the Land Revenue proclamation on the mere ground that no special exemption order has been passed. The embankment charges ordered to be levied under the Certificate Act are taken out of the purview of Act XI of 1859 unless and until fresh notices are issued under Section 5 and they cannot be treated as arrears of Land Revenue. The sale, therefore, not being for an arrear of land Revenue is liable to be set aside and the judgment and decree of the Subordinate Judge must be discharged with costs.