John Woodroffe, J.
1. The facts are already sufficiently set out and I need not repeat them. There does not appear to me to be substance in the objection 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.
2. As pointed out by Chatterjea, J., the authorities are against the contention that the sale is invalid on account of the notices having been published in the jurisdiction of the Pangsha Police Station instead of in that of the Baliakandi Police Station.
3. The decision of the contention that there was no arrear for which the property could be sold depends on the findings of fact. The first Court held that there was an arrear and the judgment of the Appellate Court being one of affirmance generally I think that that is the meaning of it on this particular point. The difficulty has arisen from the loose and inaccurate language used by the District Judge, who speaks of 'the Kist ending the 12th January 1908' when he is in fact speaking of the Kist the last day of payment for which was the 12th January 1908, as is stated later in the judgment which also contains the following passage: 'I fii(sic) that the revenue of the estate was in arrea(sic) at the time the estate was sold,' T(sic) ground is concluded by the finding of fact,(sic) it is quite clear to me what the Judge me(sic)
4. The last and fourth contention rai(sic) difficulty but I think is also co(sic) the findings of fact. When exan(sic) light of the decision of the case of (sic) Chowdhrani v. Secretary of State (sic) 36 : 8 C.W.N. 880 the question resolves itself into this: Did the Collector enter the bidders' ring by the offer of one rupee with which the sale commenced? If he did there may be some difficulty as is pointed out by Huda, J., in distinguishing this case from that cited. But what the Judge has found as a fact is that the Secretary of State was not really a bidder. It is true that the District Judge says that the peon made a bid of one rupee on behalf of the Secretary of State and in the bid sheet the Government is shown as a bidder in respect of one rupee and 50 rupees, at which price it purchased the property. But that is a fact in the case upon which the Judge had to express an opinion one way or another as to whether it indicated that the Collector was really a bidder. As to this the District Judge finds: 'The Collector did not enter the ring as a bidder; and the bid was made by the peon as a matter of form.' For this; as the Judge holds on the Peshkar's evidence, is the custom. According to such custom the peon opens the bidding with a bid of Re. 1. In other words the peon did not either on his own behalf or as a private purchaser bid. The Judge finds that 'it does not appear that the Collector authorised the making of the bid or that he intended to act under the first part of Section 58.' It is not suggested that the peon was bidding on his own behalf and if he was, this goes against the appellant's case that the Collector was bidding. This last is disposed of by the finding.
5. There is, it is true, some inconsistency between this and the previous finding, but reading the judgment as a whole what the Judge meant to say and to hold was that the peon, a Government official, started the bidding according to the custom as a mere matter of form and that the Collector was not in fact a bidder. If, as I hold, there (sic) conclusion of fact (which conclusion (sic) in accord with the facts) then (sic) was nothing which stood in the way (sic) the Collector taking over, as he did, the (sic) under the second portion of Section (sic) and the decision cited does not apply. (sic) reasons I would dismiss this (sic) costs. (sic)36 : 8 C.W.N. 880.
Charles Chitty, J.
6. This appeal arises out of a suit filed by the plaintiffs to set aside a sale of a revenue-paying estate held under Act XI of 1859 on 25th June 1908. The plaintiff No. 1 is a co-sharer in the Zemindary and the plaintiff No. 2 is the Putnidar. The plaintiffs' suit was dismissed by both the lower Courts. On second appeal to this Court the learned Judges of the Division Bench differed in their opinion. This is an appeal filed under Section 15 of the Letters Patent arising from such difference of opinion.
7. The plaintiffs before us have put forward the same four contentions as they did before the Division Bench, but it will be convenient to deal with those points in a different order.
8. The facts as found by the learned District Judge are that the appellants made default in the payment of an instalment of revenue, the last day for payment of which was 12th January 1908. The estate was accordingly put up for sale by the Collector on 25th March 1908, and sold to one Chandra Kanta Mitra for Rs. 135. The purchaser having failed to pay in the balance of his purchase-money within the prescribed time, on 27th April 1908 the Collector again notified the estate for sale. The second sale (the sale now in question) was held on 25th June 1908. On that day a peon of the Collector's cutchery opened the bidding with a bid of Re. 1. There were three other bidders present who competed among themselves, and the amounts bid rose by small advances to Rs. 50, which was offered by one Rajani Kanta Ghose. There the bidding ceased and the Collector purporting to act under the second portion of Section 58 of Act XI of 1859 took or purchased the estate on account of the Government at Rs. 50, the highest amount bid. This suit was instituted on 26th June 1909 just within the period of limitation.
9. The first contention of the plaintiffs is that the notices under Sections 6 and 7 of the Act were signed not by the Collector or Deputy Collector but by a Sub-Deputy Collector who, it is said, had no authority to sign them. The burden of showing this was upon the plaintiffs, and they have failed to show that the signatures were without authority. The signatures are expressed to be 'for the Collector' and may be presumed to be in order. The Act does not require the Collector to sign such notices himself. In any event, the matter is one of no substance, as the plaintiffs cannot have been injured in any way by the notices being so signed.
10. The next contention was that the notices under Section 7 were served in the Pangsa Police Station whereas the lands of the estate are within the Baliakandi Police Station. This, again, is a matter of no importance. As pointed out by Mr. Justice Chatterjea, it has been held in a series of cases that the non-service of notice under Section 7 would not invalidate a sale. It is immaterial for the purposes of the present case where they were served.
11. The third contention is that there was no arrear in this case at the time when the sale was ordered. This question depends on the findings of fact arrived at by the Courts below. The doubt, if any, arises in consequence of the words 'January Kist' having been loosely used to devote an instalment really due in December, the latest date for payment of which was, under the orders of the Board of Revenue, 12th January. If the instalment in arrear were a 'January Kist' properly so called, it would not under Section 2 be considered an arrear until the 1st of February following and the estate could not, therefore, have been legally sold before 28th March. The Subordinate Judge found that the arrears in this case, Rs. 89-15-9, became due before 12th January 1908. The learned District Judge is perhaps not very happy in his choice of words on this point but, in my opinion, he undoubtedly intended to affirm the finding of the first Court. He says at the commencement of his judgment: 'The appellants defaulted in the payment of revenue due for the Kist ending the 12th of January 1908.' That can only mean the Kist the latest date for payment of which was 12th January 1908. Later on, he finds that in the present case there unquestionably was an arrear at the time the sale was held. He then continues thus: 'The last date of payment for the January Kist is the 12th of January and on that date revenue amounting to Rs. 89-15-9 was still unpaid, and under the Board's Rules the Collector is required to conclude sale for arrears of one Kist before another Kist day has come round. The next Kist day after the 12th of January is the 28th of March. I find that the revenue of the estate was in arrears at the time the estate was sold.' In the papers to which Mr. Justice Chatterjea has referred, no doubt the Kist is referred to as the 'January Kist' or 'January Talab.' This may be due to the fact that the original due dates of payment have been lost sight of and the four latest dates for payment fixed by the Board of Revenue under Section 3, namely, 12th January, 28th March, 28th June and 28th September have been carelessly taken to give names to the several Kists, which were really payable before those dates but payment of which might be received up to those dates. In this view, there seems to be no ground for holding, as contended by the plaintiffs, that the sale was notified before this revenue, Rs. 89-15-9, was actually in arrear.
12. The last contention is the most important, and it is with respect to this that the main arguments in this appeal have been addressed to us. It is said that the action of the Collector in bidding Re. 1 and subsequently purchasing the estate on behalf of the Government at Rs. 50, the highest amount bid, was contrary to the provisions of the Act and, in particular, of Section 58. In support of his argument the learned Counsel for the plaintiffs relied very strongly on the case of Halimannissa Chaudhurani v. Secretary of State (sic) 36 : 8 C.W.N. 880. The cases are, in my opinion, clearly distinguishable in their facts. In the present case although the District Judge's finding is that the peon made a bid of Re. 1 on behalf of the Secretary of State, later on he finds that the 'peon opened the bidding with a bid of Re. 1 which is the custom. The Collector did not enter the ring as a bidder and the bid was made by the peon as a matter of form. It does not appear that the Collector authorised the making of the bid or that he intended to act under the first part of Section 68', i.e., to purchase the property for Re. 1 in the absence of bidders. In the case cited the facts were as follows: The property there in question had been previously put up to sale on 14th March 1900, when the only bidders competing were the Collector and the defaulter's agent. On that occasion the Collector began with a bid of Re. 1. The defaulter's agent then bid Rs. 10 and they bid against each other, until the Collector made his last bid of Rs. 800, and the defaulter's agent bidding Rs. 805 purchased the property. The proprietor having again made default, a second sale (the sale in question in that suit) was notified and took place on 18th December 1900, some nine months later. Again, the only bidders competing were the Collector and the agent of the defaulter. The Collector again began with a bid of Re. 1. The defaulter's agent followed with a bid of Rs. 10. The Collector then enquired whether any one was willing to increase the bid, and, as no one came forward, the Collector forthwith closed the sale and purported to take over the property under Section 58 of the Act on account of the Government at Rs. 10. Their Lordships held that this was contrary both to the letter and the spirit of the Act. It does not precisely appear in what respect they considered the proceeding contravened the express provisions of the Act, They were, however, obviously impressed by what could only be regarded as sharp practice on the part of the Collector, and they held that the spirit of the Act having been infringed the sale could not be allowed to stand. With that conclusion I respectfully concur. In the present case, however, the facts are quite different. If it be held (and in my opinion it ought to be held) that the bid of the peon was not a competitive bid, that the Collector did not, in fact, enter the ring as an ordinary bidder, cadet qustio. If, however, it be regarded as a competitive bid, we have then to see whether in this case the provisions of the Act have been infringed. It cannot, I think, be disputed that the Collector has the right, if he chooses, to bid for property on behalf of the Government. This appears to have been conceded by the learned Judges who decided Halimannissa's case (sic) 36 : 8 C.W.N. 880. They say: '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 be 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.' We were not referred to, nor have I been able to find any provision of law which prohibits a Collector from bidding if he chooses, nor can I find any such provision which prohibits him, if he has once made a bid, from subsequently exercising his powers under the second half of Section 58. One may fairly conjecture that it was never contemplated by the Legislature that the Collector, who acts on behalf of the Government, should enter into competition as a bidder at sales like the present conducted by himself on behalf of the Government. But what we have to see is whether there is any express provision of law which prevents him from taking such a course. In this case, apart from the fact that the peon, as a matter of form, opened the bidding with an offer of Re. 1, it is clear that the Collector never entered into the competition, that he made no further bid, that the sale was conducted with perfect fairness, and that the three bidders who were competing raised the price by no less than 24 bids to Rs. 50 at which amount they stopped. I am of opinion that the Collector was not precluded by the initial bid of Re. 1 from taking over the estate under the second portion of Section 58.
13. There are other difficulties in the plaintiffs' way with regard to this contention. Section 33 lays down in clear and unmistakable terms the law as to the jurisdiction of Civil Courts in suits to annul sales under this Act. It says (omitting immaterial portions): 'No sale for arrears of revenue shall be annulled by a Court of Justice, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of: and no such sale shall be annulled upon such ground, unless such ground shall have been declared and specified in an appeal made to the Commissioner under Section 2 of the Bengal Land Revenue Sales Act of 1868.' Now, each of these plaintiffs appealed to the Commissioner; but both appeals were dismissed for default. Plaintiff No. 1, Babu Amrita Lal Roy, did not declare or specify this ground in his appeal to the Commissioner. He merely complained in general terms that the sale could not stand inasmuch as it had not been held in conformity with the provisions of Act XI of 1859. Plaintiff No. 2, Surjya Kumar Lahiri, besides stating the same general ground as put forward by Babu Amrita Lal Roy, added as his sixth ground 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.' I may mention in passing that this has been found to be incorrect in fact. The District Judge has found that the Collector did call for further bids and that it was not until he realized that no one raised the bid of Rs. 50 that the estate was knocked down to Government at that price. That fact, moreover, was notified then and there to the persons assembled. The sixth ground of plaintiff No. 2 is not the ground now urged on behalf of both the plaintiffs. I specially asked their learned Counsel to formulate this ground, and he replied that the illegality or irregularity with which he charged the Collector in this case was that he entered the arena as a bidder with a bid of Re. 1 and having done so, he exercised his powers under the second part of Section 58, which he was by the provisions of the Act precluded from doing. It is clear, therefore, that neither of the plaintiffs in his appeal to the Commissioner put forward or specified at all the ground which they now wish to raise. There are clear authorities, as pointed out by Mr. Justice Chatterjea, that such ground must be declared and specified [see Gobind Lal 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.) and Sheikh Mohammed Aga v. Jadunandan Jha 10 C.W.N. 137 : 2 C.L.J. 325]. That is, in my opinion, sufficient to prevent the plaintiffs from raising this ground in the present suit.
14. Again, the plaintiffs must show that by reason of the irregularity complained of they have sustained substantial injury. They certainly have not shown in this case that they suffered substantial or any injury by the fact that the peon opened the bidding with a bid of Re. 1. That fact does not appear to have influenced the subsequent stages of the sale in the slightest degree. It was argued that Section 33 had no application, that this sale was nullity ab initio, that no property passed and so forth. In my opinion these arguments were put forward solely in order to surmount the difficulty, otherwise insurmountable, presented to the plaintiffs by Section 33. In this case it cannot be said that the Collector had no jurisdiction to sell this property. It was an estate falling directly within the provisions of the Act and, as has been found, there were arrears due and the sale was properly notified first for 25th March 1908, and later for 25th June 1908, what is complained of is not really a want of jurisdiction to sell the property but illegal action or irregularity in the conduct of such sale. This would clearly come within the purview of Section 33, and, as pointed out by Lord Macnaghten in the case of Gobind Lal 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.) above cited, it cannot have been intended to exclude from that section cases of illegality as distinguished from irregularity. The action of the Collector now complained of appears to be an irregularity rather than an illegality.
15. It has been said that this is a hard case, but the hardship does not appear to be so great as might be supposed, as we are told that the plaintiffs are even now, nearly ten years after the sale, still in possession of the property.
16. For the reasons given, I would dismiss the appeal with costs.
Shamsul Huda, J.
17. I regret I am unable to agree with my learned brothers in the decision arrived at by them.
18. This appeal arises out of a suit brought by the plaintiff No. 1, the owner of 8-annas 13-gandas. 1 kara 1 kranti share, and the plaintiff No. 2, the Putnidar of the entire Mahal Brindaban Chandra Roy and others, Touzi No. 3738 of the Faridpur Collectorate, for, among others, a declaration that the revenue sale of the Mahal held by the Collector on the 25th of June 1908 has passed no title to the defendant, the Secretary of State, and for setting aside the sale as being contrary to law and vitiated by various irregularities detailed in the plaint.
19. The facts are shortly these: This Mahal was treated by the Collector as having fallen into arrears for non-payment of Rs. 89-15-9 being the arrears payable in the January Kist of 1908, and was in the usual course put up for sale on the 25th of March 1908. There were three bidders present and Chandra Kanta Mitter who had offered the highest bid of Rs. 135 was declared the purchaser. Chandra Kanta having defaulted in payment of the consideration money, the Mahal was again put up to sale on the 25th of June 1908. The decision of the case mainly turns upon what happened at this sale. The Collector's peon seems to have started with a bid of one rupee on behalf of Government. There were three other bidders and one Rajani Kant Ghose ultimately offered the highest bid of Rs. 50, whereupon the Collector professing to Act under Section 58 of Act XI of 1859 bought the property on behalf of Government at that sum, as the highest bid was insufficient to recover the arrears due up to the date of sale.
20. The suit has been dismissed by both the Courts below. The points urged before the lower Appellate Court were the following:
First: That the sale notices were not signed by the Collector but by one of his Subordinates.
Second: That there were no arrears at the time the property was first put up to sale.
Third: That as the bidding opened with a bid of one rupee 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. In this connection it is also denied that any further bids were called for before the Collector closed the bidding and declared the property purchased on behalf of Government.
Fourth: That the sale notices were through the mistake of the Collector's office published in the jurisdiction of Thana Pangsha where as the entire property is situated in the jurisdiction of Thana Baliakandi.
Fifth: That owing to the above irregularities property which the Subordinate has found to be worth at least Rs. 3,000 has been sold for Rs. 50.
21. On the first point the learned District Judge held that the Deputy Collector who had signed the notices was authorised by the Collector to do so and that this was neither illegal nor irregular.
22. On the second point he held that the Mahal was in arrear, that the last day of 'payment for the January Kist' was the 12th of January and on that date revenue amounting to Rs. 89-15-9 was still unpaid.
23. On the third point the learned District Judge held that the bid of one rupee was made by the peon as a matter of form, that it did not appear that the Collector authorised the bid or that he entered the ring as a bidder. The learned Judge also found that under the orders of the Collector, the Peshkar called for further bids but as no one offered a higher bid, the estate was knocked down to Government and the fact was notified then and there to the persons assembled. He was also of opinion that the Collector had no motive to put the defaulter to trouble and the sale was fairly conducted. Upon this last finding the learned Judge distinguished this case from the case of Halimunnesa Chowdhurani v. Secretary of State (sic) 36 : 8 C.W.N. 880. He also was of opinion that this point was not raised in the grounds of appeal before the Commissioner and that under Section 38 of the Act, plaintiffs were precluded from urging it. He also arrived at the finding that the action of the Collector had caused no injury to the plaintiffs.
24. On the fourth point the learned Judge held that upon the grant of the sale certificate the question ceased to be material and, therefore, it was unnecessary to go into it. At the same time he expressed the opinion that upon the merits of the issue the appellants' case was very doubtful.
25. In the result the learned Judge dismissed the suit and the appeal.
26. The plaintiffs then filed a second appeal to this Court and all these points were urged at the hearing before N.R. Chatterjea and Newbould, JJ. See 41 Ind. Cas. 458.-Ed.. On the first point Mr. Justice N.R. Chatterjea expressed a doubt as to whether the delegation by the Collector was authorised but as in his opinion the appeal succeeded on other points, he did not think it necessary to decide the question finally. On the fourth point the learned Judge came to the conclusion that the non-service of notice under Section 7 did not invalidate the sale. On the second point Mr. Justice Chatterjea held that the finding of the first Appeal Court that the property was sold for 'January Kist' was binding on him in second appeal and as under Section 2 of the Act, the amount due under the January Kist did not become an arrear till the first of February, the sale for default of payment of the January Kist was unauthorised and thus there being no arrears to justify the sale it was liable to be annulled. On the third point Mr. Justice Chatterjea held on the authority of the decision in Halimannissa's case (sic) 36 : 8 C.W.N. 880 that the purchase was in contravention of the provision of Section 58 of the Act. With reference to the contention urged on behalf of the respondents that this ground was not specified in the grounds of appeal before the Commissioner the learned Judge was of opinion that the sixth ground, i.e., '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 bids,' was sufficient to cover the point and that though the reason given was different from that which was urged in the suit, the words declared and specified in Section 33 of the Act did not include the reasons for those grounds. On the fifth point the learned Judge held that substantial injury to the plaintiffs by reason of the irregularities complained of had been made out.
27. Mr. Justice Newbould disagreed with Mr. Justice Chatterjea's decision on the second and third points and though substantially agreeing with him on other points, was for dismissing the appeal. The result was that under Section 98 of the Civil Procedure Code the decree of the lower Appellate Court was affirmed and the appeal dismissed with costs.
28. Owing to this difference of opinion an appeal has been filed under Section 15 of the Letters Patent and the same points have been urged before us, I am of opinion that the appeal must succeed on the ground that Section 58 of the Revenue Sale Law did not apply and the action of the Collector under that section was unauthorised. Whatever view I might have taken if the matter had been res integra, the question being concluded by authority I see no sufficient grounds for differing from the decision of Brett and Mookerjee, JJ., in the case of Halimannissa Chaudhurani v. Secretary of State (sic) 36 : 8 C.W.N. 880. There as here the Collector had started with a bid of one rupee and had ultimately under the provisions of Section 58 taken over the property at the highest bid offered by another bidder. The reasons upon which the learned Judges decided that case also apply to the facts of this case, although certain circumstances of aggravation which existed in that case do not exist in this. I am unable to distinguish the present case from that case and hold that the action of the Collector in taking over the property at the highest bid offered by another was under the circumstances of the case unauthorised. There is no force in the contention that the first bid of one rupee was not a bid by the Collector. In the bid sheet signed by the Collector this bid is stated to be a bid on behalf of Government. The fact was distinctly alleged by the plaintiffs in paragraph 3 of their plaint and the statement was not traversed in the written statement filed by the Secretary of State nor was any issue raised on this point. The question, therefore, is not open to discussion.
29. Upon this view of the case it seems unnecessary to go into the question whether the sixth ground of appeal taken before the Commissioner covered the present question and whether the plaintiffs sustained substantial injury by reason of the irregularities complained of. The principle laid down in the case of Balkishen Das v. Simpson 25 C. 833 : 25 I.A. 151 : 2 C.W.N. 513 : 7 Sar. P.C.J. 363 : 13 Ind. Dec. (N.S.) 543 (P.C.) by their Lordships of the Judicial Committee, that where there were no arrears to justify a sale under the Act the sale was without authority and the Civil Court had jurisdiction to declare the sale void and the provisions of Section 33 relating to an appeal to the Commissioner of Revenue did not exclude that jurisdiction--is capable of extension to a case like the present where there has been no sale under the Act which requires to be set aside. On the view I take the position is this: The true purchaser, Rajani Kanta Ghose, does not insist on his purchase. He has not completed the purchase by paying the consideration money. The Collector's unauthorised action under Section 58 has conferred no title on the Secretary of State. The plaintiffs are, therefore, entitled to a declaration in terms of the prayer (a) of the plaint that their rights in the Mahal in suit have not been affected by the auction sale aforesaid and it is not necessary for them to get the sale set aside as it does not stand in their way. Having come to this conclusion I do not think it necessary to express any decided opinion on the other points, but I may generally state that on those points I am in agreement with Mr. Justice Newbould.
30. On the question as to whether there were arrears to justify the sale, it seems to me clear that the learned Judge in the Court below when speaking of the January Kist was not referring to Kists originally fixed in the engagement between Government and settlement-holder, but was referring to the amount of revenue for which the latest day of payment fixed by the Board of Revenue under Section 3 of the Act was the 12th day of January. The same interpretation may obviously be put on some of the notices which speak in the same loose way of the January Kist. As pointed out by Mr. Justice Newbould, what has happened is this that after the latest date fixed by the Board of Revenue for the payment of arrears the original Kists have lost all significance and have ceased to be referred to in the Collectorate papers.
31. I would for reasons above stated reverse the decision of the Courts below and decree the plaintiff's suit in terms of prayer ka of the plaint. I would allow the plaintiff his costs against the Secretary of State in this Court as well as in the Courts below.
32. According to the opinion of the majority of the Court the appeal is dismissed with costs.