1. This appeal arises out of a suit to set aside a revenue sale. The facts of the case are as follows:
The plaintiffs were part owners of an estate called Hari Krishna Nossa or Norra bearing Touzi No. 131 of the Patna Collectorate for which estate Rs. 208-0-8 were payable annually as Government revenue. This revenue is received by Government in four instalments and the latest day for payment of one of these instalments fixed under Act XI of 1859 is the 7th June. On the 7th June 1906, the estate was found to be Rs. 2-4-2 in arrear and it was consequently advertised for sale on the 19th September. On the 15th September, the plaintiff's agent Bunsi Lal for the first time, as he says, ascertained that this arrear was outstanding and he at once filed a petition to the Collector asking that officer to accept payment of the arrear and to exempt the mahal from sale under Section 18 of Act XI of 1859. On this petition, the Collector made the following order: 'Accept payment.' Payment was not, however, actually made until the 19th September and, on that date, before the fact of payment was notified to the Collector, the estate had been sold and purchased by the defendant No. 1. The plaintiffs Nos. 1, 2 and 3 then moved the Commissioner to set aside the sale and, on the 29th December 1906, the Additional Commissioner (Vide Ex. F) declined to interfere. Hence the present suit to set aside the sale was filed on the 2nd January 1907. The suit has been dismissed in the lower Court and the plaintiffs have appealed.
2. The decision of the learned Subordinate Judge is assailed for a variety of reasons in the memorandum of appeal and there are no less than 32 grounds of appeal set forth in that document; but only two points were pressed at all in Court. As to the others, some were not referred to by the learned pleader for the appellants and we may take it that he did not consider them of any importance and others he specifically intimated that he was not prepared to press. Thus a question is raised in paragraph 12 of the appeal memo. as to the amount of revenue annually payable by the estate and certain papers were filed by the appellants in this Court which were apparently intended to be utilized to prove their contention on this point. The point was not argued, however, and, by consent of one of the learned Vakils who appeared for the appellants, the application to receive these papers in evidence was refused. Similarly, the question of the service of notices before the sale is distinctly raised in several paragraphs of the memorandum of appeal; but the learned Vakil for the appellants said that he was not prepared to argue this point having regard to the provisions of Section 8 of Act VII of 1868.
3. The only two points that were pressed before us are the following:--(1) That there was no arrear at the time of the sale as payment of the arrear had been accepted by order of the Collector after the last date of payment fixed by the Board but before the actual sale. It has been contended that the order of the Collector to accept payment was tantamount to an order of exemption: (2) that there was no arrear of revenue due on the date of the sale for which the estate could be sold whether the payment of Rs. 2 odd was made before the sale or not.
4. In his argument on the first point, the learned pleader for the appellants pointed out that the case of his client was a very hard one as a property worth Rs. 35,000 had been, sold for Rs. 64,000 only on account of an arrear of Rs. 2 odd and he alleged that the arrear had accrued only by reason of the laches of the co-sharers of the plaintiffs. It must be noted, however, that the learned Judge of the Court below refused to allow evidence as to the value of the property to be f ally gone into (vide Order No. 43 dated the 3rd of January 1908) and the plaintiff's oral evidence on the point cannot, therefore, be accepted as conclusive. Nevertheless, it is apparent from the partition papers filed by the defendants that the estate is one of considerable value and it undoubtedly has been sold because a very insignificant amount of revenue was in arrears. This is not, however, a matter which can govern our decision in the case, as the Revenue authorities alone have the power to set aside a sale on the ground of hardship under Section 26 of Act XI of 1859.
5. The facts which are not disputed are that the plaintiff first became aware on the 15th September that the arrears were outstanding and that the estate had been advertized for sale and, on the same day, his agent Bansi Lal filed a petition before the Collector praying for permission to pay up the arrears and for an order exempting the estate from sale. No order was passed on that petition till the next day, Sunday, the 16th September, and the order then passed was 'accept payment.' This order was not communicated to the plaintiff's agent till Monday, 17th September. The plaintiff in accordance with a rule of the Collector's office had then to obtain chalans, which after being initialed by the Touzi Mohurir, must be passed by the accountant empowering him to pay in the sum due as arrears. This payment had to be made not, as in other Districts, into the Government Treasury attached to the Collectorate building but into the Bank of Bengal which, is a 15 minutes' walk from the Collectorate. After payment, the plaintiff was required to produce the chalan with the Bank's receipt thereon to satisfy the Collector that the payment had been made. The plaintiff's agent obtained the chalan, as he says on the afternoon of the 17th September but his case is that he was too late to pay in the money into the Bank that afternoon.
6. Tuesday, the 18th September was a close holiday and, on the morning of the 19th September, he paid the money into the Bank and obtained the receipt. As he was going to present it to the Collector, he found that his estate was put up for sale and, before he could place the receipt in the Collector's hands, the sale was completed. He then filed the receipted chalan with a petition stating the facts. The hour for the sale was 12 noon and the petition was presented at 1-9 P.M. The Collector, however, held that it was too late then to interfere with the sale which had been already concluded.
7. The plaintiff appealed to the Commissioner on the 7th December 1906 and the grounds of appeal appear in the paper-book with the Collector's reply in the margin to such grounds. Grounds 7 and 8 deal with the allegations regarding the payment of the arrears and in answer to them, the following passage occurs: 'Moreover, it appears that, on the 17th September two other arrear chalans were passed by the Account Department after the appellant's chalan, namely, (a) chalan presented by Gondhal in respect of estate Saidalipur, Purganna Azimabad, Touzi No. 317-2 for Rs. 2-8-10 and (b) chalan presented by Mahomed Sharf-ud-din in respect of Takh Pergunnah Rauza Narpet, Tonzi No. 35-1 J. for Rs. 1-6-6 and both of them were able to deposit the arrears on the very date and obtain exemptions. It is certainly unaccountable that the appellant whose chalan was passed first was unable to deposit on that date or sufficiently early on the sale day, the 19th September. The June Kist default following so closely the March default, the absence of the defaulter or any person on his behalf in the sale room, the unjustifiable delay in the deposit of the arrears in time and the omission to apply for exemption under Section 18 are clear evidences of the gross carelessness and culpable negligence in the payment of Government dues, and sale must be the legal consequence of such laches and laxity.
8. The appeal was disposed of by the Additional Commissioner on the 22nd December 1906. He held that there had been gross carelessness on the part of the plaintiff, that owing to the fact that the plaintiffs' co-sharers had defaulted in payment of the previous kist, he had every reason to expect default in the current kist but never looked for it till the fourth day before the sale, and that, when he had got orders for payment to be accepted, he did not follow them up but dawdled until in the end the estate was sold before he could produce the chalan.
9. Before the lower Court, the two other chalans referred to in the Collector's reply were produced in evidence to prove that the arrears which were paid up under them were paid on the 17th September, though the circumstances under which the payments were made in those cases and whether they differed from those under which the payment for the plaintiff was made by his agent were not gone into.
10. In all these circumstances, we are unable to differ from the view of the lower Court that the plaintiff's agent was not as diligent as he ought to have been in the payment of the arrears. At the same time, there is little reason to doubt that, in fact, the money was paid into the Bank before the sale was concluded. In consequence of this delayer dawdling on the part of the plaintiffs' agent, the plaintiff has undoubtedly suffered considerable loss by the sale of valuable property at much below its price, and the purchaser is the defendant, a pleader of the Judge's Court. The Commissioner, however, held that a sufficient case of hardship was not made out to justify his interference and, as that Court was the only authority which could have taken steps to have the sale set aside on that ground, it is unnecessary for us to do more than state the facts without expressing any opinion.
11. In support of this ground of appeal, it has also been contended that the order of the Collector to accept payment is tantamount to an exemption from sale and as the payment was accepted and made in all probability before the actual sale took place, there was no arrear outstanding and the sale was invalid. The law is. however, clear on the point that the fact of payment after the latest day is no bar to the sale (see the last paragraph of Section 6 of Act XI of 1859) and the decision of their Lordships of the Judicial Committee in the case of Lala Gauri Banker Lal v. Janki Pershad 17 C. 809 at p. 812 : 17 I.A. 57 seems to us to be conclusive against the appellant. Their Lordships there say that an order which ran as follows 'accept on payment of all Government demands' was not such an order as is contemplated by Section 18. An order under Section 18 should be an absolute exemption and not an order which may have effect as an exemption or not, according to what may happen, or be done, afterwards. The reason for the exemption must be recorded at the time when it is granted and their Lordships also say that it may be doubted whether the words 'accept etc.' are more than a note of one of the Collector's Officers that the money would be received and the mahal would be exempted from sale.
12. Accepting the principle laid down by their Lordships, it seems impossible to say in this case that any absolute order for exemption was passed. The order ran thus: 'Accept payment,' and, in all probability, it was the intention of the Collector to exempt if payment was made before the date of the sale. But there is no definite and specific order of exemption and the fact that the Collector might have intended to exempt if payment was made cannot be taken as an indication that the property was exempted. We think, therefore, in these circumstances that, although probably the payment had actually been made to the Bank before the sale took place, the sale cannot be set aside either on the ground that the property had been exempted or because payment of the arrears was made after the latest date for payment but before the sale. The fact that the Collector consented to accept payment does not amount to an absolute exemption such as is contemplated by Section 18 of Act XI of 1859.
13. There is also, in our opinion, no force in the second contention. It is argued that the June instalment of revenue became an arrear under Section 2 of Act XI of 1859 on the 30th June, that the Board could not, therefore, fix as the latest date of payment for any such arrear any date until after the 30th June, that consequently the latest date of payment for this instalment was really September and that there was no arrear at the time the sale was notified. But this argument does not bear investigation. Section 2 of Act X[ of 1859 refers to the kist or instalment by which the settlement and kistbandi of a mahal have been regulated and not to the kist or instalment noted in the Collectorate Touzi Department. Touzi Estate No. 131, the subject of the present case, is a new estate formed by partition out of a larger estate. The settlement roll and kistbandi of the parent estate which was permanently settled in 1849 is Ex. 1. The revenue of that estate was Rs. 352 payable according to the kistbandi in nine instalments: one-sixth in October, 1-6th in November, 1-8th in December, 3-16th in January, 3-16th in February, 1-8th in March, 1-16th in April, 1-8th in May and 1-16th in June; and this is the kistbandi referred to in Section 2 of Act XI of 1859. This amount of revenue was subsequently altered to Rs. 356 odd but no change was apparently made in the kistbandi. In 1901, the partition of the old estate was complete, and the estate which is the subject of the present case was created as a separate revenue paying estate and, on the 4th January 1901 (vide Ex. E), the proprietor contracted to pay Rs. 208-0-8 (Note: the figures in the printed paper-book are incorrect) to the Government year by year and instalment by instalment. That is, he undertook to pay the new revenue in accordance with the original kistbandi of the parent estate. The Government do not, however, insist upon payment being made month by month in accordance with the old kistbandi but they fix the instalments in the Touzi Department differently.
14. The present estate is one which pays over Rs. 100 as revenue and, therefore, under the rules (see the Revenue Sale Manual p. 97), the money is actually received by Government in four instalments: 7th June, 28th September, 12th January and 28th March being the latest dates of payment of each of these instalments. But these latest dates are apparently for instalments, already due before the beginning of the month in which the latest date is fixed and an examination of the Touzi Roll (Ex. A) will show that the present arrear had accrued by the end of May. On 31st May, according to the old kistbandi, two instalments, one for April and one for May in all, 3-16th were due. Now, 3-16th of Rs. 208 is Rs. 39 and this is the amount for which the latest date for payment was the 7th June. There is, therefore, no force in the contention of the appellants. The 7th June is fixed by the Board as the last date of payment for arrears that accrued due before the 1st June. Under the agreement and according to the law, the Board of Revenue could, in this case, have fixed nine latest dates of payment annually and could, have insisted on payment of revenue accordingly; but, for convenience and to avoid multiplicity of accounts, the Board, in fact, allow payment of 2 kists to be made at one time up to the 7th June, that is, after the expiry of the month for which the sums included in the demand are due. It cannot, therefore, he said that there was no arrear due for which the estate could he sold and the argument addressed to us on behalf of the appellants is based on a confusion between the 'instalments' mentioned in Section 2 of Act XI of 1859, which are the instalments noted in the original engagements and the instalments entered in the Touzi Register.
15. The finding of the Court is against the appellant on both the points pressed before us. The appeal must, therefore, be dismissed with costs. We assess the hearing fee at 5 gold mohurs.