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Lakshmijan and ors. Vs. Nazumia and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal678,140Ind.Cas.601
AppellantLakshmijan and ors.
RespondentNazumia and anr.
Cases ReferredPurna Chandra v. Dinabandhu Mukherji
Excerpt:
- .....taluk were produced by the landlord in accordance with the requirements of section 10 of the patni sale regulation. on the other hand, no evidence of the kind was adduced in regard to taluk no. 400. this clearly indicates that what was sold was taluk no. 401. the mere fact that the collector made a mistake in his register in entering the sale against taluk no. 400 cannot deprive the plaintiff of his title to the property which has been found to have been purchased by him. with regard to the second contention there can be no doubt that the sale under the patni regulation is only voidable and not void (see sm. ramsona chowdhry v. naba kumar [1912] 10 i. c. 90 and as no steps were taken to set aside the sale under the procedure laid down in the regulation, it cannot be now impugned as.....
Judgment:

Graham, J.

1. This appeal arises out of a suit for khas possession of certain land on establishment of title. The plaintiff's case was that Taluks Nos. 400 and 401 were advertised for sale under the Patni Sale Law and that on 16th May 1921 he purchased Taluk No. 401 for a sum of Eh. GO. The Collector how. over by mistake entered the sale against Taluk No. 400 which was not sold at all. The plaintiff subsequently applied to the Collector for rectification of the error, but was referred by the Collector to the civil Court on the ground that the matter was beyond his jurisdiction. Thereupon this suit was instituted. The defence was that what was sold was Taluk No. 400 and not 401; and that if the latter taluk was in fact sold, the sale was void on account of certain irregularities in the procedure. The trial Court on a consideration of the evidence found that Taluk No. 401 and not 400 was sold and gave a decree accordingly. That decree was confirmed on appeal by the Subordinate Judge of Chittagong; and defendants 7 and 8 have now preferred this second appeal. Two points have mainly been relied upon on behalf of the appellants, Firstly, it is argued that the Courts below hold without any legal evidence that the taluk sold was No. 401 and not No. 400; and, secondly, it has been urged that they have erred in law in holding that the sale was voidable and not altogether void. We do not think there is any substance in either of these contentions.

2. With regard to the first point a reference to the judgment of the Courts below shows that there was legal evidence to support the conclusion of fact arrived at, namely, that what was sold was Taluk No. 401. Two of the strongest pieces of documentary evidence, were Exs. 3 and 4 which go to show that the kabuliyat, Ex. 1 (a), relating to Taluk No. 401, and a statement of the balance of rent due in respect of that taluk were produced by the landlord in accordance with the requirements of Section 10 of the Patni Sale Regulation. On the other hand, no evidence of the kind was adduced in regard to Taluk No. 400. This clearly indicates that what was sold was Taluk No. 401. The mere fact that the Collector made a mistake in his register in entering the sale against Taluk No. 400 cannot deprive the plaintiff of his title to the property which has been found to have been purchased by him. With regard to the second contention there can be no doubt that the sale under the Patni Regulation is only voidable and not void (see Sm. Ramsona Chowdhry v. Naba Kumar [1912] 10 I. C. 90 and as no steps were taken to set aside the sale under the procedure laid down in the Regulation, it cannot be now impugned as invalid by way of defence in a suit the period of limitation having expired long ago. Both the points argued therefore fail and this appeal must be dismissed with costs

Suhrawardy, J.

3. I agree with my learned brother in what he said on the first point taken on behalf of the appellants. As to the second point the case is fully covered by the decision in Sm. Ramsona Chowdhuri v. Naba Kumar [1912] 10 I. C. 90 where it has bean held that the validity of a sale under the Patni Law cannot be questioned by way of defence. It has been pressed upon us with great vehemence that the sale in this case was a nullity, there being no proof of the service of notice in connexion with the sale as provided for by Regulation 8 of 1819. This defence, in my opinion, cannot be urged in the present suit, for the very cogent reason that the zamindar is not a party to the suit. Under Section 8 of the Regulation the zamindar shall be exclusively answerable for observance of the forms described therein. The question therefore with regard to the observance of these forms cannot be agitated as against a purchaser who is a stranger. The proper mode for setting aside the sale on account of non-observance of the forms mentioned in Sections 8 and 10 is to bring a suit under Section 14 of the Regulation. Whatever view may be taken with regard to the question arising under Section 47, Civil P.C., which is very differently worded, the defendants cannot be allowed to plead that the sale is invalid by way of defence.

4. We have been referred to the Full Bench decision in Purna Chandra v. Dinabandhu Mukherji [1907] 34 Cal. 811 (F.B.) in which it has been held that a sale under the Public Demands Recovery Act without observing the formalities mentioned in Section 10 of the Act, is a nullity. That decision is in do way an authority applicable to the 'present case. There, the Court was construing the provisions of Section 10, Public Demands Recovery Act, which provides that in the absence of the proper service of notice the Collector will have no jurisdiction to sell the property. The learned Chief Justice who delivered the judgment in that case felt some difficulty in holding the sale void, because of the absence of proof of proper service of notice, but he contented himself with following the previous decisions on the point. I am satisfied that in the present case the sale cannot be said to be void, apart from the question whether the sale can be attacked on this ground by way of defence. It has not been dispute before us that there were arrears of rent due, and that the sale was held for the purpose of realising the arrears. The regulation makes it incumbent upon the Collector to look into the certificate of notice directed to be issued in the moffussil before he puts up the property to sale. But it does not make the jurisdiction of the Collector to sell a defaulting patni defendant on proof of such certificate. Section 14 of the Regulation contemplates a suit not only for setting aside a sale on the ground of the irregularity in the publication of processes, but also on the ground that there was no balance due. It has been held in cases under the Land Revenue Sale Law that where no balance was due, the officer had no jurisdiction to sell the property. It is not necessary for me to consider whether the same rule would apply in the case of a patni sale. But it seems that a suit under Section 14 can be brought both on the ground that there was no rent due and also on other grounds of irregularity in the sale procedure. In my opinion the sale is not void and the objection that it is invalid cannot be raised by way of defence.


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