1. The subject-matter of the litigation which has given rise to this appeal is a share of four villages Padnia, Monaia, Chaduor and Dhndhwa. The case for the plaintiffs is that the lands of these villages appertain to five taluks or mohals, Khaira, Aramgarh, Maiiechuck, Kendil and Tar wan, and that one-third or five annas four pies of the four villages appertains to taluka Khaira. The plaintiffs further assert that this share in Khaira was owned by two brothers. Jehangir Buksh and Nabi Buksh in equal halves and that they acquired a valid title to the moiety share of Jehangir Buksh, on the 26th February 1898. On the 5th December 1898, the plaintiffs had their names registered with respect to the share acquired by them. On the 5th March 1899, they applied, apparently under Section 70 of the Land Registration Act, to have a separate account opened in respect of their share. This application was granted. Subsequently on the 30th May 1904, the residuary share called the ejmali kalam, was sold for arrears of revenue, and was purchased by the defendants. The defendants claimed before the Revenue authorities that they had acquired by their purchase a thirteen annas four pies share of the villages as comprised in taluka Khaira, and were entitled to have their names registered in respect thereof. This contention was accepted as well-founded by the revenue authorities on the 10th April 1905. On the 27th September 1907, the plaintiffs commenced this action for declaration that the residuary share did not and could not represent any share beyond a half of the one-third included in taluka Khaira The Courts below have refused to accept this contention and have concurrently dismissed the suit. The plaintiffs have appealed to this Court, and on their behalf it has been contended that upon the facts found, there is no answer to their claim. In our opinion, this argument is manifestly well-founded.
2. It is indisputable that only one-third share, described as five-annas four-pies share, of the four villages was included in taluka Khaira The two brothers, Jehangir Buksh and Nabi Buksh, were entitled to this one-third in equal halves; in other words, if the entire interest in the villages was taken as the unit, each of the brothers had a two annas eight-pies share-but if the share included in Khaira was taken as tie unit, each of the brothers had an eight-annas share. The plaintiffs have undoubtedly, acquired the whole interest of one of the brothers, Jehangir Buksh, which had been inherited by his son, Mahomed Buksh. When the plaintiffs applied to have their names registered in respect of the share acquired by them, they were registered as proprietors of a two-annas eight-pies share but as is usual, it was not stated what was the standard of reference. It is indisputable however, that the plaintiffs applied to have their names registered in respect of a two-annas eight-pies share in relation to the entire village treated as sixteen-annas. Subsequently, when they applied to have a separate account opened in respect of their share, they proceeded on the same basis. It now turns out, however, that the officers in the Collectorate made a mistake, and, through a misapprehension, assumed that the separate account was opened in respect of a two-annas eight-pies share out of the five annas four-pies share treated as sixteen-aunas. It is incontestable that the plaintiffs did not in any manner contribute to this mistake. They have throughout uniformly and consistently claimed a half of the one-third share included in taluka Khaira; they have sought to get their names registered in respect of such share and to have a separate account opened in respect thereof. The officers in the Collectorate have committed a blunder, and have treated the residuary share not as two-annas eight-pies out of five annas four-pies but as thirteen-annas four-pies out of sixteen-annas, (i.e., they have treated for this purpose the share included in Khaira as sixteen-annas). These are the facts as established beyond possibility of challenge. The only question is, what is the true legal position of the parties? The Courts below have held that the plaintiffs have lost the share which undoubtedly belonged to them, by reason of the blunder of the officials in the Collectorate. We are entirely unable to accept this view as well-founded. The Collector had no jurisdiction to expose for sale a share in excess of the share in default. The plaintiffs had paid the Government revenue payable in respect of the half share out of the one-third included in Khaira, which belonged to them. The share in default was the remaining half share. If the officers thought the share in default was a five-sixth share and not one half, clearly the title of the plaintiffs could not be affected there by. The act of the Collector in exposing for sale any share in excess of the half of the one-third share, which was really in default, was wholly without jurisdiction; and it is now firmly settled that an act of the Collector, if without jurisdiction, cannot affect the title of th9 owners: See Bal Kishen Das v. Simpson 25 C. 833 : L.R. 25 I.A. 151 : 2 C.W.N. 513; Mohomad Jan v. Munshi Ganga Bishen Singh 13 C.L.J. 525 : 15 C.W.N. 443 : 9 M.L.T 446 : 8 A.L.J. 480 : 13 Bom. L.R. 413 : 38 C. 537 : (1911) 2 M.W.N. 277 : 21 M.L.J. 1148 : 10 Ind. Cas. 272; Harkhoo Singh v. Bunsidhur Singh 25 C. 876 : 2 C.W.N. 360 and Jogendra Mohan v. Uma Nath 35 C. 636 : 8 C.L.J. 41 : 12 C.W.N. 646. The cases of Kalanand Singh v. Sarafat BHassein 12 C.W.N. 528 and Rahimuddi Munshi v. Nalini Katna Lahiri 13 C.W.N. 407 : 1 Ind. Cas. 81, upon which the learned Vakil for the respondents relisd, are clearly distinguishable, as there the Court was called upon to consider the legal effect of a revenue sale held with jurisdiction; and the same remark applies to the decision in Shyam Kumari v. Rameswar Singh 31 I.A. 176 : 32 C. 27 : 8 C.W.N. 788 and Bhawani Kosr v. Mathura Prasad 7 C.L.J. 1 to which reference was made in the course of the arguments at the Bar. Here, the officers in the Collectorate erroneously supposed that the share in default was much larger in extent than it really was, and under, this impression, exposed for sale the share of the plaintiffs in respect of which no default had been made so far as the plaintiffs are concerned, the sale was clearly beyond the statutory authority vested in the Collector and could not prejudice their rights.
3. The result, therefore, is that this appeal mast be allowed and the decrees of the Courts below discharged. The suit is decreed with costs in all the Courts. The plaintiffs will recover possession of the share claimed, but in the circumstances, we direct that no mesne profits be allowed before the date of this judgment. We may add that it has been stated to us that a question of redemption may possibly arise between the parties in their character as purchasers on the basis of mortgages; if any such question arises, it must be determined in a suit properly framed for the purpose.