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Province of Bengal Vs. Ramlal Oswal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1942Cal308
AppellantProvince of Bengal
RespondentRamlal Oswal and anr.
Excerpt:
- .....was the judge's registrar but that they were so served owing to the carelessness of the peon who served the notices. i agree therefore with the finding of the appellate court that there was an irregularity in the service of these notices.2. the appellate court has also found that substantial injury was caused to the plaintiff by this sale. although i do not agree entirely with the reasons given by the learned judge for this finding in so far as he states that the point would be established by the mere fact that the plaintiff has brought the present suit nevertheless there is evidence to support this finding and to prove that there was sufficient profit from the tenure in suit to show that its value exceeds considerably the amount of re. 1 for which it was purchased at the revenue sale.....
Judgment:

Roxburgh, J.

1. This appeal arises out of an appellate decree setting aside a sale held under the Land Revenue Sales Act of 1859 on the ground that there had been material irregularity in the publication of notices under Section 6 of that Act which irregularity had caused substantial injury to the plaintiff. The trial Court had refused to set aside the sale. The irregularity complained of lies in the fact that the copy of the notice under Section 6 of the Act required to be served in the Court of the District Judge of Jalpaiguri was, in fact, served in the Court of the Munsif. It was so served at a time when the District Judge himself was not in Jalpaiguri but was in one of the other stations, Dinajpur or Jalpaiguri, of his judgeship. The Munsif of Jalpaiguri is, by notification published in 1934, Judge's Registrar and papers required to be filed with the Judge should, during his absence, be filed with the Registrar. No evidence was given to show that notices required to be published in the Court of the District Judge should be published in the Court of the Munsif acting as his Registrar. It may be noted that it appears from the judgment of the Commissioner who heard the application under the Act in this matter that the reason for his refusal to interfere was that such notices were to be so served at the Court of the Munsif. If that had really been the case, one would have expected a clear evidence to that effect. The only evidence that we have is the statement of the peon to the contrary effect that such notices were served in the Court of the District Judge. It seems clear, as noted by the appellate Court in this case, that the notices were not served at the Court of the Munsif owing to any notion that this was the correct procedure as he was the Judge's Registrar but that they were so served owing to the carelessness of the peon who served the notices. I agree therefore with the finding of the appellate Court that there was an irregularity in the service of these notices.

2. The appellate Court has also found that substantial injury was caused to the plaintiff by this sale. Although I do not agree entirely with the reasons given by the learned Judge for this finding in so far as he states that the point would be established by the mere fact that the plaintiff has brought the present suit nevertheless there is evidence to support this finding and to prove that there was sufficient profit from the tenure in suit to show that its value exceeds considerably the amount of Re. 1 for which it was purchased at the revenue sale by the Province of Bengal and there is no reason for me to interfere with that finding. Lastly the main point of attack against the decision of the appellate Court is that there is no evidence to justify the finding in this case that the substantial injury in question had been caused by the irregularity in publication of notices. The plaintiff himself did not attempt to make a specific case on this line, for his case in the plaint as supported by the evidence was that no notice of any kind either under Section 6 or under Section 7 was served either on the land or in the Collectorate or in the Judge's Court and no attempt was made to show that although the notices under Section 6 were served at the Collectorate nevertheless the failure to serve the notices properly at the Court of the District Judge had [itself led to the substantial injury in the case due to paucity of bidders. However that may be it is necessarily difficult to supply direct evidence to show that such irregularity had led to the injury. The point must usually be one of inference. The learned Subordinate Judge who heard the appeal has not indeed discussed the basis of his view that the irregularity had led to the injury but in my opinion the circumstances are such that he might reasonably in this case come to the finding of fact to which he has come that there was a direct connexion between the two, and the case does not seem to be one therefore in which his finding should be interfered with. The result is that the appeal is dismissed with costs.


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