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Jirjudhun Roy and ors. Vs. Bal Mokoond Lall and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal271
AppellantJirjudhun Roy and ors.
RespondentBal Mokoond Lall and anr.
Excerpt:
sale for arrears of revenue, suit to set aside - act xi of 1859, sections 6, 20 and 35--beng. act vii of 1868, section 8--certificate of title--secretary of state--parties--civil procedure code (act x of 1877), section 32 and 424. - .....with reference to the provisions of section 6, act xi of 1859, the admitted facts are these: the sale notification under that section was affixed in the particular places mentioned in the section on the 2nd may 1879, and the date fixed in that notification for holding the sale was the 31st may of that year. it so happened that the 31st may was a holiday, and the day following, viz., the 1st of june, was a sunday. the collector, therefore, professing to act under the provisions of section 20, act xi of 1859, issued a notification, either on the 25th or 26th may 1879, that the sale was to be held on the 2nd of june, and accordingly the sale in question was held on that date. the question is whether under the circumstances stated above the notification was issued and affixed in accordance.....
Judgment:

Mitter, J.

1. This suit was brought to set aside a revenue sale held under Act XI of 1859 on the ground that the sale was made contrary to the provisions of the aforesaid Act, and that the plaintiffs had sustained substantial injury by reason of the irregularity complained of in the plaint. The suit was brought under the provisions of Section 33 of the Act. The lower Court has awarded a decree in favour of the plaintiffs. It has found that the notification required to be affixed in the Court of the Judge of the District, and in the Office of the Collector under Section 6 of the Act was not affixed 30 days before the date fixed in the notification for holding the sale. The lower Court has further found that the notifications required by Section 7 of the Act to be affixed in his own office, as well as in the Munsif's Court and Police Thanahs within which any part of the estate is situated, as also at the cutcherry of the owner of the estate, or at some conspicuous place upon the estate, were not duly affixed and promulgated. Upon the question whether the plaintiffs have sustained any substantial injury or not, the finding of the lower Court is that the property sold is worth at least Rs. 10,000, and that it was sold for Rs. 2,200 only. With reference to this last point, which involves only a question of fact, the evidence bearing upon it has been placed before us, and we agree with the lower Court that the conclusion to which it has come is correct. As to the question raised with reference to the provisions of Section 6, Act XI of 1859, the admitted facts are these: The sale notification under that section was affixed in the particular places mentioned in the section on the 2nd May 1879, and the date fixed in that notification for holding the sale was the 31st May of that year. It so happened that the 31st May was a holiday, and the day following, viz., the 1st of June, was a Sunday. The collector, therefore, professing to act under the provisions of Section 20, Act XI of 1859, issued a notification, either on the 25th or 26th May 1879, that the sale was to be held on the 2nd of June, and accordingly the sale in question was held on that date. The question is whether under the circumstances stated above the notification was issued and affixed in accordance with the provisions of Section 6, Act XI of 1859.

2. Section 6, omitting the words, which are not material to the question now before us, is to the following effect: 'The Collector or other officer duly authorized to hold sales under this act, shall issue notifications in the language of the district, to be affixed in his own office, and in the Court of the Judge of the district, specifying the day on which the sale of the same will commence, which day shall not be less than thirty clear days from the date of affixing the notification in the office of the Collector or other officer as aforesaid.' It is contended on behalf of the appellant that this section should be read as if laying down two distinct provisions, viz., one requiring the issuing and affixing of a notification in which the date of the sale should be specified, and the other laying down that the actual sale should not take place until after the lapse of 30 clear days from the date of the affixing of the notification. I am of opinion that this construction cannot be reasonably put upon the section in question; because it says that the notification shall specify the day on which the sale of the estate will commence, which day shall not be less than 30 clear days from the date of affixing the notification in the Office of the Collector or other officer as aforesaid. Therefore the date of sale to be specified in the notification should be one which should happen to be more than 30 days from the date of its affixing. If this is the proper construction of this section it is quite clear that its provisions were not complied with in this case, because in the notification which was affixed on the 2nd of May the date of sale specified was the 31st May, and therefore it was less than 30 days from the date of affixing the notification. If the other construction had been intended by the legislature, then in that case we should have found some other provision in the Act which would have authorized the Collector, in a case like this, to alter the date of the sale. It was contended before us that this power is given to the Collector under the provisions of Section 20 of the Act, but I am of opinion that under Section 20 the Collector had no power in a case like this to alter the date of the sale. Section 20 says: 'In case the Collector or other officer as aforesaid shall be unable, from sickness, from the occurrence of a holiday, or from only other cause, to commence the sale on the day of sale fixed, etc.' It was contended that the words 'any other cause' would authorize the Collector to alter the date of the sale in a case like the present, but I am of opinion that this contention is not correct. It is a well-known rule of construction that general terms following particular ones apply only to such things as are ejusdem generis. The particular causes for altering the day of sale under Section 20 are sickness or the occurrence of a holiday. 'Any other cause' mentioned after these words must be one similar in its kind to those specified in the section. Therefore I do not think that the Collector could, in a case like this, under Section 20, alter the date of the sale. That being so I am of opinion that the requirements of Section 6 were not fulfilled.

3. Then it was contended that under the provision of Section 8, Beng. Act VII of 1868, the Court is bound to presume conclusively that the provisions of Section 6, Act XI of 1859 even as regards the fixing of the date of the sale were complied with. Section 8, Act VII of 1868 is to the following effect: 'Every certificate of title which may be given to any purchaser under the provisions of Section 28 of the said Act XI of 1859, or of Section 11 of this Act, shall be conclusive evidence in favour of such purchaser and of every person claiming under him, that all notices in or by this Act, or by the said Act XI of 1859, required to be served or posted, has been duly served and posted.' In this case it is not disputed that the defendant obtained a certificate of sale under the provisions of Section 28, Act XI 'of 1859. The effect of obtaining that certificate under Act VII is in my opinion simply this: That the Court will be bound to presume conclusively that any notice or notification required to be posted or served under Act XI of 1859 and Beng. Act VII of 1868 was duly served and posted. This section does not mean that the Court is bound to presume that the notification was affixed in the places mentioned in Section 6 thirty days before the date fixed in the notification as the date of sale. This view is further confirmed by the latter part of the section itself, which says: 'And the title of any person who may have obtained any such certificate, shall not be impeached. or affected by reason of any omission, informality, or irregularity as regards the serving or posting of any notice in the proceedings under which the sale was held, at which such person may have purchased.' This shows that any omission, informality, or irregularity as regards the serving or posting of the notification would not be a ground for setting aside the sale, but it does not lay down that an omission to fix the date of sale, in accordance with the provisions of Section 6, Act XI of 1859, would not affect the title of the purchaser. I, therefore, entirely agree with the lower Court that in this case the provisions of Section 6, Act XI of 1859 were not complied with. In this view of the case it is immaterial to enquire whether the finding of the lower Court with regard to the serving or affixing of the notification under Section 7 is correct or not.

4. The learned pleader for the appellant has raised another question before us, viz., that under Section 33 of the Act under which the present suit was brought, the plaintiff is not entitled to succeed in this action unless he shows that the ground of irregularity, upon which he impeaches the sale, was the ground upon which he preferred the appeal to the Commissioner which is provided for in the Act. Now Section 33, so far as it is material with reference to this point, is to the following effect: 'No sale for arrears of revenue or other demands, realizable in the same manner as arrears of revenue are realizable, made after the passing of this Act, shall be annulled by a Court of Justice, except upon the ground of its having been made contrary to the provisions of this Act, etc.' Therefore, it seems to me that if the plaintiff had impugned the sale before the Commissioner in his application for appeal upon the ground that the sale was made contrary to the provisions of Act XI of 1859, it would be a sufficient compliance with the provisions of Section 33. Referring to the petition filed by the plaintiff before the Commissioner, we find that the ground taken was sufficiently general to bring it within the purview of Section 33. The sixth ground is to the effect 'that irregularities took place in all the proceedings of sale, hence the sale is by all means fit to be set aside.' This is tantamount to saying that the sale was made contrary to the provisions of Act XI of 1859. I am, therefore, of opinion that this ground of appeal also should fail. This disposes of all the questions raised before us regarding the merits of the case.

5. Then a question was raised to the effect that the plaintiff was bound to make the Secretary of State a party to this suit, and in support of the appellant's contention upon this point our attention was drawn to the provisions of Section 35, Act XI of 1859. That section says: 'In the event of a sale being annulled by a final decree of a Court of Justice, and the former proprietor being restored to possession, the purchase-money shall be refunded to the purchaser by Government, together with interest at the highest rate of the current public securities.' Comparing this section with the analogous section in Regulation VIII of 1819, viz., Section 14, which is to the effect that 'the purchaser shall be made a party in such suits, and upon decree passing for reversal of the sale, the Court shall be careful to indemnify him against all loss, at the charge of the zamindar or person at whose suit the sale may have been made,' it appears to me that this Section 35 by itself does not afford any ground for the contention that the Secretary of State was a necessary party to the suit. It merely provides that in the event of a sale being annulled by a final decree of a Court of Justice, and the former proprietor being restored to possession, the purchase-money shall be refunded to the purchaser by Government, together with interest at the highest rate of the current public securities. But although it appears to me to be clear that Section 35 does not afford any support to the contention raised before us, yet it is by no means clear that the Government was not interested in the question raised in the suit, because, if the sale be set aside, the Collector will have to proceed de novo in the matter for the realization of the arrears of revenue. The Government, therefore, have such interest in the suit as would, on their application, entitle them to be made a party to it.

6. Further the lower Court was not, in my opinion, right in holding that under the provisions of Section 32 it could not add the Secretary of State as a party to the suit. The section referred to by the lower Court, viz., Section 424 of the Procedure Code, does not preclude the Court from adding the Secretary of State as a necessary party under the provisions of Section 32 of the Act. Section 424 only says that no suit shall be instituted against the Secretary of State in Council or against a public officer in respect of an act purporting to be done by him in his official capacity, unless a certain notice be given. But be that as it may, I am of opinion that in this case the defect of parties (if there was any) does not entitle the defendants on the record to contend that the present suit should be dismissed. I am, therefore, of opinion that this ground of appeal should also be overruled.

7. Then there remains the question of costs. It is true that in this case if any party should have been made liable for the costs of the suit it was the Collector, by whose irregular proceedings the sale took place; but the Collector was not made liable, and he is not before us in this appeal. It would be, in my opinion, unjust to make the defendants liable for the costs of the lower Court, and, therefore, the defendants should have been declared entitled to recover the costs of the lower Court from the plaintiff; but then after the decree was passed in favour of the plaintiffs, the defendants had no valid grounds of appeal to come up to this Court. They have, therefore, rendered themselves liable to pay the costs of the plaintiffs, respondents, in this appeal. Under these circumstances we think it will meet the ends of justice if we direct that each party should bear their own costs throughout the litigation.

Norris, J.

8. This is an appeal from the decision of the Officiating Subordinate Judge of Sarun, dated 14th February 1881, setting aside a revenue sale on the ground of irregularity, and that consequential injury had taken place. We are now asked to set aside the decision of the Court below. I agree with my learned brother that that judgment should be confirmed, and I will deal very shortly with the points made by the learned pleader who has appeared for the appellant before us to-day. His first ground of argument was that, assuming the Court below was right in holding that there had been an irregularity in the advertisement of the sale, that irregularity was not sufficient to warrant the sale being set aside; secondly, he urged that there was no irregularity; thirdly, that the plaintiffs could not be permitted to urge that ground here to-day, because they had not, in their petition of appeal to the Commissioner, complied with the requirements of Section 33, Act XI of 1859; and, lastly, it was urged before us as a matter of fact that the evidence on the paper book did not prove substantial injury. I will notice the last ground--the question of fact--first, beginning with the general observation that I should hesitate to reverse a decision passed in the Court below on a question of fact unless irresistibly compelled so to do, for this reason, that the Judge in the Court below has the inestimable advantage of having the witnesses examined and cross-examined before him, and is, therefore, able to form a far better opinion as to the value of their evidence than we can do sitting here in a Court of appeal. Upon that general ground I should hesitate long before I reversed a decision of a lower Court on a question of fact. But in this case the evidence abundantly bears out the facts necessary for the plaintiffs to prove that there had been substantial injury or damage caused to them by reason of the irregularities which have taken place in the conduct of the sale. I need not go into the evidence in detail; it has been laid before us at length by the learned pleaders, and it satisfies my mind fully that on the question of fact the plaintiffs' case was made out.

9. The next point to consider is, has there been an irregularity in the proceedings connected with the sale? That depends upon the construction to be placed upon Section 6, Act XI of 1859. (His Lordship read the section.) Now the object of this Section, I apprehend, was to give what the Legislature thought, reasonable publicity to the sale, and the real meaning of the section is that this should be done by means of affixing the prescribed notices strictly in time, or not less than thirty days before the date fixed for the sale. That is the real meaning of the section and if that be so, we have to consider whether that has been done in this case. It is admitted that this notice was not posted till the 2nd of May, and it is said that the sale was to take place on the last day of May. It is clear, therefore, that if the sale had taken place on the 31st of May the statutory period would not have elapsed. Then it is urged that this irregularity may be cured by reference to Section 20 of the Act of 1859, the marginal note of which is 'adjournment of sales.' The section is as follows: 'In case the Collector or other officer as aforesaid shall be unable, from sickness, from the occurrence of a holiday, or from any other cause, to commence the sale on the day of sale fixed as aforesaid, or if, having commenced it, he be unable, from any cause, to complete it, he shall be competent to adjourn it to the next day following, etc.' I agree with all that my learned brother has said as to the non-applicability of this section to cure the defect under Section 6, but further, when in Section 20 we find the words 'to commence the sale on the day of sale fixed,' this must refer to a day of sale which has been legally fixed. You could not adjourn a meeting which an Act of Parliament requires to be convened at 12 days' notice if only an 11 days' notice has been given; you cannot adjourn an illegally called meeting, and you can only adjourn a sale fixed for a certain day when it has been legally fixed for that day. Therefore Section 20 will not avail to cure the defect which, in my opinion, manifestly has arisen under the provisions of Section 6. Then the learned pleader says: 'Assume all that against me I crave in aid Section 8, Beng. Act VII of 1868. I am of opinion that this section will not avail to help the appellant in this case. The Act does not say that it shall be conclusive evidence that the proper statutory notice was given; it does not say it shall be conclusive evidence that a notice having been posted the right notice was posted, and that the contents of the notice were such as by. Section 6, Act XI of 1859, they are required to be; all that this section intended to do was to render it unnecessary to call evidence to show that the notice itself had been posted, but it is still necessary to prove that the contents of the notice are such as are required by Section 6, Act XI of 1859. Then it is further urged that this ground of appeal was not available because the provisions of Section 33 of the Act of 1859 had not been complied with. Section 33 says: 'No sale for arrears of revenue or other demands realizable in the same manner as arrears of revenue are realizable, made after the passing of this Act, 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 25 of this Act.' Therefore what the plaintiffs have to show is, in sending in this petition of appeal, that substantial injury has been sustained, and that the sale has been made contrary to the provisions of this Act. Now it seems to me that if the petition of appeal to the Commissioner, instead of being as precise and elaborate as it is, had simply said that the sale had been made contrary to the provisions of the Act, and that the plaintiff had sustained substantial injury, and confined itself to these two narrow statements, it would have been amply sufficient to have enabled the plaintiffs to raise the point here to-day.

10. Upon the questions of the non-joinder of the Secretary of State and of costs I entirely concur with my learned brother, and I do not think that I should add anything to what he has said.

11. On the whole I agree that this appeal should be dismissed.


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