1. This appeal arises out of a suit to set aside a sale held under the Revenue Sale Law (XI of 1859).
2. The sale was in respect of a residuary share only. Various irregularities were alleged in the plaint, but the learned Subordinate Judge held that the omissions to mention some of the kismats in the notice under Section 6 was an irregularity, and further that the understatement of the Government revenue in the sale proclamation was also an irregularity. He was of opinion that the first named irregularity, namely, the omission to mention some of the kismats in the notice under Section 6 resulted in substantial injury to the plaintiff and accordingly set aside the sale.
3. The defendant purchaser has preferred this appeal.
4. It is contended on his behalf that the ground upon which the sale has been set aside was not specified in the ground of appeal to the Commissioner, nor was it mentioned in the plaint in the present suit, and that being so, the sale cannot be set aside.
5. Having regard to Section 33 of the Act we think that this contention must prevail.
6. The omission to mention some of the kismats in the notice under Section 8 was not at all specified in the ground of appeal to the Commissioner. That being so, it is not open to the plaintiff to set aside a revenue sale upon any grounds other than those urged before the Commissioner [see Gobind Lal Roy v. Ranjanam Misser 21 C. 70 : 20 I.A. 165 : 17 Ind. Jur. 536 : 6 Sar. P.C.J. 356 : 10 Ind. Dec. (N.S.) 679 and Sheikh Mohammed Aga v. Jadunandan Jha 10 C.W.N. 137 at pp. 142, 143 : 2 C.L.J. 325].
7. The objection based on the understatement of Government revenue appears to have been taken before the Commissioner; but the learned Subordinate Judge has not found that that has affected the sale or resulted in substantial injury.
8. It may be mentioned that neither of the two grounds on which the sale has been set aside, was taken in the plaint in, the present suit.
9. Under the circumstances, the sale cannot be set aside and the decree of the lower Court must accordingly be reversed, the result being that the sale will stand and the suit dismissed with costs of this litigation, which we assess at Rs. 350 in all for both Courts.
10. This, no doubt, is a hard case for the respondent, The appellant, however, agrees to grant a permanent lease to the respondent of 3 kanie of khamar land and the actual homestead land, which before the sale belonged to the plaintiff, at an annual mokurari rent of Rs. 15 (rupees fifteen) in consideration of the respondent paying to the appellant the costs mentioned above, namely, Rs. 350, within three months from this date, If the respondent fails to pay the said amount within the time specified above, this appeal will stand decreed with costs, in all Rs. 350 for both Courts.
11. If the amount is paid, the appellant agrees to execute a permanent lease and the respondent agrees to execute a kabuliyat with respect to the khamar and the homestead land within three months of the said payment. It is agreed that the lease is to commence from the 1st Baisak 1325 B.S.