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(Shebaits of Sree Sree Idol Issur) Sridhar Thakur and ors. Vs. Jamini Sundari Dassya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal415,166Ind.Cas.485
Appellant(Shebaits of Sree Sree Idol Issur) Sridhar Thakur and ors.
RespondentJamini Sundari Dassya
Excerpt:
- 1. this appeal has arisen out of a suit for a declaratory decree in respect of a revenue sale held on 24th june 1932, of mahal taraf ratahar and others, appertaining to touzi no. 365 of the rajshahi collectorate, after having the same determined to be bad and inoperative (illegal and ultra vires), and of no force and effect. in the plaint, there was also a prayer for temporary injunction against the defendant respondent, restraining her from taking possession of the disputed property till the disposal of the suit. the prayer for temporary injunction was withdrawn during the pendency of the suit. the case of the plaintiffs before the court was that the revenue payable in respect of the touzi in question for the march kist of 1932, became arrear only on 1st april 1932, and as such the sale.....
Judgment:

1. This appeal has arisen out of a suit for a declaratory decree in respect of a revenue sale held on 24th June 1932, of Mahal Taraf Ratahar and others, appertaining to Touzi No. 365 of the Rajshahi Collectorate, after having the same determined to be bad and inoperative (illegal and ultra vires), and of no force and effect. In the plaint, there was also a prayer for temporary injunction against the defendant respondent, restraining her from taking possession of the disputed property till the disposal of the suit. The prayer for temporary injunction was withdrawn during the pendency of the suit. The case of the plaintiffs before the Court was that the revenue payable in respect of the Touzi in question for the March kist of 1932, became arrear only on 1st April 1932, and as such the sale that was held on 24th June 1932, was illegal and ultra vires; it was further stated by the plaintiffs that the revenue payable for the Mahal in suit was payable in four kists, namely, 12th January, 28th March, 28th June and 28th September, and that the plaintiffs paid the revenue in the said manner all along and could not pay the revenue for the March kist on account of the world wide economic depression. It was the case of the plaintiffs that the Mahal in question was advertised for sale not only for arrears of revenue but also for cesses due, and that as such the sale held on 24th June 1932, was not legal. It was asserted by the plaintiffs that the sale notices and the sale proclamations required to be served under the provisions of Sub-section 6 and 7, Revenue Sale Law, were not served in the locality, and were not duly published in the Calcutta Gazette in the manner provided by law. It was the case of the plaintiffs also that owing to irregularity referred to in the plaint, the property having an annual income of Rs. 1,744, and worth Rs. 17,000, was sold at an inadequate price of Rs. 1,100 only and that thereby the plaintiffs suffered substantial injury. It was further stated by the plaintiffs that they had suffered extreme hardship as a Telegraphic Money Order for Rs. 1,000 was not delivered to their agent on the date of the sale by the Post Office, and that as such the arrears of revenue could not be deposited in the Collectorate on the date of the sale. The last of the above allegations of fact on which the plaintiffs' case before the Court rested, relating to hardship could not be considered to be the basis of a ground for holding that the sale was not in accordance with law. The evidence in the case does not establish the position that the telegraphic money order arrived at the post office on the 24th June, and that the amount covered by it could not be paid by the post office to the plaintiffs' agent on account of shortness of fund. The ground of hardships as aforesaid, was not made out, and no question of irregularity or illegality arose on the facts alleged, relating to nondeposit of arrears on the date of sale. The claim made by the plaintiffs in the suit was resisted by the defendant. The allegations of fact made in the plaint on which the plaintiffs' case before the Court was based were denied; and it was asserted by the defendant that notices of the sale were properly served and published in the manner provided by law. In addition to the denial of the allegations made in the plaint, there was the definite statement made by the defendant in her written statement filed in Court that the suit was not maintainable in the form presented in the plaint, without any prayer for setting aside the sale. On the pleadings of the parties, various issues were raised for determination in the case. The learned Subordinate Judge in the Court below gave his decision against the plaintiffs on the material issues arising for consideration in the case, and the plaintiffs' suit was dismissed. The plaintiffs have appealed to this Court against the decision and decree of dismissal passed by the trial Court on 23rd April 1934.

2. In support of the appeal to this Court the main questions raised by the learned Senior Government Pleader appearing for the plaintiffs-appellants may be dealt with under the following heads: In the first place it was urged in consonance with the statement made in the plaint that the revenue payable for estate No. 365 which was sold on 24th June 1932, was payable in four kists, and the kist of the 28th March, became arrear on the 1st April, and that the sale could not under the law, be held before the next kist day, the 28th June; and that as the sale was held on 24th June 1932, it was in law illegal and ultra vires. The question thus raised in has to be decided and the date on which the revenue payable by the plaintiffs for a particular kist became arrears has to be determined with reference to the materials placed on the record. The most relevant evidence on this part of the case was that afforded by the Doul Kistibandi, Ex. C in the case, in respect of Touji No. 365, dated 14th December 1813. It was apparent from that document, that the 28th March could not be the relevant date for a particular kist, inasmuch as the kists mentioned in the Doul Kistibandi were 12 in number according to the 12 Bengali months. The 28th March was not the date when any kist was payable; the Pous, Magh and Falgun kists became arrear on the 1st Chaitra, the 14th March; and the latest day of payment under the Revenue Sale Law was therefore the 28th March.

3. This view of the matter is established on other materials placed on the record, namely the Arrears List Ex. 7, and the sale notices, Exs. E (6) and E (7) series. That the plaintiffs themselves knew, and considered that the kist in question became arrear on the 1st Chaitra, i.e., 14th March, is apparent from their statement in Ex. A, the memorandum of appeal filed by them before the Commissioner, for setting aside the revenue sale that had taken place on 24th June 1932. It may be that the statement contained in Ex. A does not amount to an admission operating as an estoppel against the plaintiffs; but there is no doubt that it was a relevant piece of evidence which went to indicate clearly what the date was when the kist in question became in arrear, according to the plaintiffs themselves. On the materials before us, we are unable to come to the conclusion, as we were invited to do, that the trial Court was wrong in not coming to the conclusion that 28th March 1932 was subsequently fixed for payment of the kist in question, and it became arrear on 1st April 1932. The Doul Kistibandi, Ex. C, taken along with the other evidence on the record, establishes the position as indicated above, that the sale held on 24th June 1932 was not illegal and without jurisdiction. It was suggested in the course of argument that the sale for arrears of revenue in the case before us, having been held not only on account of arrears of revenue but on account of arrears of cesses due in respect of the estate in question, it could not be said that the sale was one for arrears of revenue. The contention was not however pressed, in view of the position, well established now, that in a case even of amalgamation of dues on account of cesses with revenue payable in respect of an estate, a sale for arrears of revenue could not be set aside on the ground that it was illegal or ultra vires. In the case before us, the amount due on account of cesses was mentioned in the sale proclamation; but it was not amalgamated with, or included in, the revenue; the amount of revenue in arrear and the amount of cesses due were separately mentioned. In this view of the case, there can be no question that the mention of the amount of cesses due along with the arrears of revenue in the sale notification, in pursuance of which the revenue sale in question was held, did not make the sale illegal under the law.

4. The next question raised before us related to the non-service or non-publication of the sale notifications and notices, as required by Sub-section 6 and 7, Revenue Sale Law. The ground of irregularity in the matter of actual service of processes was not urged before us, and on the facts proved in the case, there can be no question that the conclusion arrived at by the Court below that the allegation of non-service of sale notification or notices, as required by law, had not been established, is correct. The ground urged before us on this part of the case related to the position that there was no publication in the Calcutta Gazette, of the sale in proper time as mentioned in Section 6, Revenue Sale Law. The position is this, the notification of the sale was published in the Calcutta Gazette at a time when there was remaining, not the full period of 30 days before the sale, but only 28 days. It was urged that the law enjoined publication of the notification in the Gazette leaving a full period of 30 days before the sale of arrears of revenue could be held. It has to be noticed in this connection that the provision of Section 6, Revenue Sale Laws does not prescribe a period of 30 days in the matter of publication in the Gazette of the notification of sale; and it cannot be said that the provision relating to affixing the sale notification at certain places, which precedes the one relating to the publication of the sale notification in the Gazette, fixing a period of 30 days was applicable also to the publication of the sale notification in the Gazette. Even if it were conceded in favour of the appellants that there was an irregularity in the matter of publication of sale proclamation in the Gazette, within the time prescribed by law, that amounted to an irregularity; and for the purpose of avoiding the sale on the ground of irregularity, it had to be made out by the plaintiffs that they had suffered substantial injury by reason of the irregularity complained of.

5. The next question therefore was whether it had been established in the case before us that there was substantial injury attributable to any irregularity in the matter of publishing the sale. The evidence in the case to which detailed reference has been made by the learned Subordinate Judge in the Court below, does not establish the case of inadequacy in the price fetched at the sale, as alleged by the plaintiffs, or that the inadequacy of price was attributable to the irregularity or illegality in publishing the sale, and that substantial injury had resulted by reason of the same. That the property sold used to fetch a net annual income of anything like Rs. 1,700 was not at all established in evidence, and it was made out that in view of the economic depression in the country, the price at which it was sold at the sale for arrears of revenue, at which sales prices are almost always low, was altogether inadequate. Evidence on the record went to show that properties in the locality have been sold at sales for arrears of revenue at their annual net profits or even at half of that. The position therefore is this: that conceding in favour of the appellants that there was any irregularity in the matter of publication of the notification of sale, although there was none established, no case of substantial injury, as contemplated by Section 33, Revenue Sale Law, having been made out, the plaintiffs were not entitled to avoid the revenue sale.

6. The conclusions arrived at on the different points raised in the appeal before us, as indicated above, dispose of the appeal; and on those conclusions the appeal must be dismissed. It may be mentioned that in view of the defence raised by the contesting defendant in the suit, respondent in this appeal, that the suit was not maintainable in the present form without a prayer for setting aside the sale, decision was given by the Court below on the question of the maintainability of the suit. It is not necessary to express any opinion on that question in view of the conclusions we have arrived at on the merits of the case. The inclination of our opinion however is that the suit as framed merely for a declaration that the revenue sale was illegal and ultra vires and without any force and effect, was not maintainable under the law, in the absence of any prayer for consequential relief. The relief that had to be applied for in the case was one for setting aside the sale held for arrears of revenue; that was not done and the suit with a prayer for a declaration, pure and simple, presumably for the purpose of avoiding payment of proper Court-fees, was not a suit which was contemplated by the Revenue Sale Law. In the result the appeal fails, and it is dismissed with costs.


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