1. This appeal arises out of a suit originally brought by the plaintiffs to set aside the sale under the Patni Regulation of a patni known as Lot Debibarpur or arrears of rent due in respect thereof for the year 1322. The plaintiffs are some of the many co-sharers in the patni and own between them a one-anna, nine ganda three kara Bhare: Mritunjoy Ghose, the defendant No. 1, was the purabaser at the sale on the 15th May 1916. The Maharaj Adhiraj of Burdwan, the Zamindar, is the defendant No. 2.
2. During the pendency of the suit the rent due for the first half of the following year 1323 being in arrears the patni was again sold on the 16th November 1916 and was purchased by Niranka Chandra Bose. The plaint was accordingly amended. A prayer for setting aside the second sale was added and Niranka was impleaded as defendant No. 22.
3. The Court below found that the first sale was irregular and set it aside. It was further held that the second sale fell with the first, the proceedings having been taken in the name of Mritunjoy, the purchaser at the first sale.
4. The appellant before us is the Zemindar, the Maharaj Adhiraj of Burdwan.
5. The notice of the first sale was only stunk up as the Regulation requires in the Collectorate and at the Sadar Cutchery of the Zemindar. So far, we are in entire agreement with the Subordinate Judge.
6. The appeal depends, in the first instance, on the question of fact whether the notice was similarly published at the Cutchery or at the principal town or village upon the laud of the defaulter.' The Regulation provides that this Muffassal notice 'shall be served by a single peon who shall bring back the receipt of the defaulter or of his manager for the same.' If such a receipt is not procurable provision is made for other evidence of the publication of the notice.
7. Now, the peon employed by the Zemindar on this errand was Surendra Nath Ghose. He has been examined as a witness and swears that he took the notice to the cutchery of Atul Krishna Ghose, one of the patnidars, 'at Debibarpur, and that Atul's gomashta, Rakhal Chandra Sai, wrote three names at the foot of the receipt, his master's name which he wrote at his master's request, his own signature and the name of the choukidar Benimadhab, who was present at the time. According to the Regulation, the signature of the gomashta or manager was in itself a sufficient receipt and as against the plaintiffs it is matter for comment that neither Atul himself nor his gomashta were put in the witness-box to contradiat the peon, Rakhal is also the gomashta of Nrisingha Chandra Ghose, one of the patnidars, and a witness for the plaintiffs. Another witness. Mongo-leswar Buxi, says he was Atul's Tehsildar. We are satisfied that he was a 'manager' within the meaning of the Regulation. The learned Subordinate Judge has disbelieved the peon's evidence mainly on the ground that the day on which the notice is said to have been served was also the day on which the marriage of Atul's son was eelebrated and though other co-sharers in the patni, suah as Pulin Behari Ghose, Nirmal Chandra Ghose and Mohini Mohan Ghose, were present on the occasion at his house, yet the peon made no endeavour to take a receipt from any of these persons. This argument does not appear to us to be of any great weight.
8. Atul was the largest co-sharer. He owned a third share of the whole. The share of the four plaintiffs is, as we have said, only one-anna, nine-gandas odd. The balance belonged to the defendants described as pro forma defendants who have not joined as plaintiffs in the suit who have not entered appearance, and among whom Atul is included.
9. The question whether the publication of the notice at Atul's Cutchery was a sufficient compliance with the law was not raised in the Court below, and was adverted to, but not argued, before us. Strictly speaking, the Regulation does not require personal service of the notice of sale on the defaulter. It requires the notice of the sale to be stuck up at the defaulter's Cutchery. The receipt of the defaulter or his manager is merely evidence that the notice hag been so published. All the defaulters in the present case had their Cutcheries, or places where they did their business, at Debibarpur and there can be no doubt that the principal Cutchery was that of the principal share-bolder, Atul, As. the plaint shows, the proceedings were taken in the name of Ram Chandra Ghose arid we gather that the patni was registered in the Raj office in that name. Ram Chandra is dead, and the observation of this Court in Rainarain v. Ananta Lal 19 C. 703 at p. 717 : IX Ind. Dec. (N.S.) 911 probably explains why the objection formulated in the plaint was abandoned. We propose, therefore, to deal with the case on the footing that publication at Atul's Cutchery was sufficient.
10. On that footing, no formal objection lies because the receipt was riot signed by the other co-sharers or any of them and we fail entirely to see why that fast should afford any ground for suspecting the truth of the peon's narrative still less for rejecting it off-hand.
11. The peon, we may mention, has been in the service of the Raj for seven or eight years and is presumably, therefore, an experienced hand, well acquainted with his duties. His antecedents are not satisfactory. He has served a sentence of one and a half year's imprisonment for forging pay bills. But we are not told how long it is since he came out of prison and the proof of the publication of this notice does not rest on his unsupported word.
12. It appears that the practice of the Raj office is to utilize the post for the purpose of making sure that the peon goes to the place where the notice has to be published. The peon is directed after publication to despatch a postcard intimating the fact from the nearest post office. There is no Post Office at Debitarpar, but there is a letter-box in which the peon says, hi posted his card. The card passad through tin Ahirbalma Post Office, at the post mark show, on the 26th April 1916, the date of publication. It was in due course received as the Raj office and is produced in this case (Exhibit D). There is no dispute that Debibarpur is served by the Aharbelma Post Office.
13. The learned Judge finds fault with the peon for not mentioning in the post-card the fast that publication was made in Atul's Cutchery. As we have said, the object of the post card is to ensure the peon's presence at the spot and for that purpose details such as these are unnecessary. The post-card states quite sufficiently that the peon had proceeded to Lot Debibarpur and served the notice there by hanging it up.
14. The defendant No. 2, the Maharaja, relied on the evidence of the peon on the receipt and on the corroborative evidence afforded by the post card. Other witnesses were examined by the auction-purchaser, the defendant No 1. They all give evidence, more or less positive, in support of the publication of the notice. The learned Subordinate Judge has rejected their testimony for reasons which in some it is once at least do not carry their own recommendation with them. There is no very apparent reason why the evidence of the Pleader, Dakhina Ranjan Bux, corroborating that of the peon as regards the posting of the post card, should not be accepted. Nor do we see why Suhi Bhusah Buxi should be summarily dismissed as untrustworthy. Tha Subordinate Judge says he is siding with the defendant No. 1. No reason is given for that statement and the witness himself says that his son had a dar patni interest which he lost owing to the sale. The son apparently is Janaki Nath Buxi who was examined as a witness for the plaintiffs. The evidence of Janaki Nath Banerjee, who also speaks to the notice being published, is not referred to by the Subordinate Judge. At the time this witness was in Atul's service, though he is now in the service of the Bakshis of Debibarpur. He accompanied Atul to the Collectorate when the patni was 'sold. But we do not propose to discuss the whole of the evidence in detail, or to reverse the decision of the Subordinate Judge merely because we flight be disposed to take A different view of the credibility of this witness or that. The case does not depend entirely on oral testimony and the evidence must he considered as a whole with reference to its character and the mode in which it should be approached and dealt with.
15. In the first place, if some of the evidence for the defense must be discounted as that of partisan witnesses, a similar criticism applies to the evidence for the plaintiffs. Mohini Babu, on whom the Subordinate Judge relief, has, no doubt, a res pea table position but he is one of the defaulting patnidar and a plaintiff. Nirmal, Pulin and Nrisingha Ghose are also defaulting patnidars. They appear in the category of pro forma defendants and, supporting as they do the plaintiffs' case, it is not, clear why they did not join in bringing the suit. Two of the other four witnesses who speak to not seeing the peon at Atul's house are dar-patnidari whose interests were destroyed by the sale.
16. Secondly, the evidence of the plaintiffs is wholly of the negative description. The peon and Rakhal may have been at Atul's house without the witnesses seeing them.
17. Again, the evidence for the defense was taken first and the plaintiffs had to meet that evidence. If they were to succeed they were bound to challenge the receipt produced by the peon. The defence could not be expected to sail Atul, the principal patnidar, or his manager, Rakhal. In our opinion, as we have already indicated, it was plainly incumbent on the plaintiffs to put those persons in the witness box. Some attempt has been made to explain the omission to do so. The explanation, however, is unsatisfactory. It appears that Atul had originally claimed to be co-purchaser of the patni with the defendant No. 1 in equal shares. But the defendant No. 1 had refused to admit the claim and before the trial of the present Bait, Atul had himself instituted a suit to set aside the second sale of the patni and to have it declared that if both sales were set aside he was entitled to his original share in the patni, In paragraph 7 of his plaint (Exhibit I he stated that ha did not join as plaintiff in the present suit because the plaintiffs had made false aspersions on him in their plaint. The point in the present suit does accuse the pro forma defendants of colluding with the defendant No, 1. That, however, did not prevent the plaintiffs from (sailing three of the pro forma defendants as witnesses and there seems no reason why they should not have called Atul' like wise. The plaintiff, Mohini Babu, himself said that Atul was not siding with any party. In any case, the omission lo sail Atul and Bakhal must tell against the plaintiffs. The judgment of the learned Subordinate Judge in this connection speaks with an uncertain sound and we are unable to follow him.
18. We may add that we have not forgotten that the chaukidar, Benimadhub, was not sailed by the defence but his evidence would have been of quite minor importance.
19. On the whole case, we have come to the conclusion that the evidence adduced for the plaintiffs is essentially weak evidence and, even if we leave out of account the witnesses examined on behalf of the defendant No. 1, the balance inclines in favour of the peon's story. Regard being had to the receipt, the issue really becomes whether Rakhal was present during the whole or any part of the marriage ceremony on the 25th April. The plaintiffs' witnesses say that he was not there or that they did not see him. But there are the names on the receipt which the peon says were written by Rakhal. There is no evidence that they are not in Rakhal's handwriting. The post-card shows that the peon was in the neighbourhood. If then we take it, as we think we ought to take it, that Rakhal wrote the name?, he was also in the neighbourhood; If the peon was in the village, there is so much the less reason to doubt that he performed his duty. If Rakhal was there, he would naturally attend the ceremony at Atul's house to which the peon would also be attracted. The circumstances and the probabilities combine to favour the truth of the peon's story which we must end by accepting. We are Both of opinion that the appeal should succeed.
20. In coming to that conclusion we have attached no importance to the fact that some of the patnidars attended the sale on the 2nd Jaistha. It was held on the 2nd as the first of the month fell on a Sunday. If a patnidar does not pay his rent he knows that his patni will probably be put, up for sale on the next sale day. The rent of the patni seems never to have been paid in proper time. There were 21 co-sharers who could not agree and rent was never paid before proceedings were taken under the Regulation to compel payment. The patni, it would also seem, is not a very profitable one the collections amount to sum Rs. 1,900. The rent is Rs. 1,655 and, in addition, there are the collection charges.
21. The first sale standing, the evidence establishes, and before us it was hardly disputed, that the second sale must stand also. The proceedings were taken in the name of the defendant No. I, the auction-purchaser, and were duly and regularly conducted throughout.
22. As the case may possibly go further, we ought not to leave it without nothing the argument urged upon us on the appellant's behalf that, even if the first sale be held irregular, the second sale, the prescribed formalities in respect thereto having been observed, would be Valid and effectual. The argument proceeds on the ground that an irregular sale under the Regulation being not void but merely voidable the first sale remained valid till it was rescinded. The purchaser at that sale acquired a lawful title with the right to possession. He was recorded as potnidar in the and lord's office. The mere institution of a suit would not affect his title which could only be destroyed by the avoidance of the sale. Meanwhile, proceedings taken against the tenure standing in his name would be according to law. Proceedings under the Regulation, it was added, are taken not against the person or the patnidar but against the tenure. If the original patnidar impeached the validity of the sale it was their duty to protect themselves by paying the rent during the pendency of their suit. Otherwise, it was said, if the purchaser defaulted, the landlord would have no means of recovering his dues.
23. Reference was made to Ranee Sumo Moyee v. Shooshee Mokhee Burmonia 12 M.I.A. 244 at p. 263 : 11 W.R.P.C. 5 : 2 B.L.R.P.C. 10 : 2 Suth. P.C.J. 173 : 2 Bar. P.C.J. 424 : 20 E.R. 331 : 1 Ind. Dec. (N.S.) 489. for the purpose of showing that neither the landlord nor the auction-purchaser are guilty of trespass by reason of an informal sale before the sale is avoided. The case I also shows that the landlord is not without remedy for his rent. The rule of limitation applied would be equally applicable under the present Limitation Act and nothing more need be said about the recovery of the rent
24. In Rajnarain v. Ananta Lal 19 C. 703 at p. 717 : 11 Ind. Dec. (N.S.) 911, cited above a question arose whether proceedings taken in the names of deceased patnidars were valid, Much stress was laid on a passage in the judgment of Tottenham, J, at page 717, in which, speaking for himself and Ghose, J., he says that proceedings under the Patni Regulation taken for the realization of arrears of patni rent are not taken against persons at all, but against the tenure. And the Zemindar is quite right in setting out in his petition and notices the name of the patni and the name of the patnidar as recorded in his books.' The learned Judge, however, differed on another point on which the case went off. In any case, neither the passage cited nor the similar language used in the earlier case of Raghub Chunder Banerjee v. Brojonath Koondoo 14 W.R. 489 : 9 B.L.R. 91n, carries the argument to the necessary length.
25. Reliance was also placed on Suresh Chandra v. Akkori Singh 20 C. 746 : 16 Ind. Dec. (N.S.) 503. But that case is not much in point. The plaintiffs there were se-patnidars and the suit was not a suit under Section 14 of the Regulation. It related only to a small portion of the patni. The case, no doubt, is authority for the proposition that an irregular sale is not void but voidable. It is also authority for the view that a sale can only be avoided by a suit properly framed under Section 14. But nothing was decided as to the effect of a successful suit under the Regulation.
26. The case cited on the other side of Joykrishna v. Sarfannessa 15 C. 845 : 7 Ind. Dec. (N.S.) 814 is more to the purpose. The plaintiff was the transferee of a patni tenure who had not registered his name in the landlord's office. He brought his suit under Section 14. The landlord pleaded that he was not bound to recognise the plaintiff as his tenant and that the plaintiff was not entitled to sue or to be restored to possession. The Court (Sir Comer-Petheram, C.J., and Tottenham, J.) held that 'the effect of setting aside the sale will be that the parties 'must be reinstated in their original position.'
27. Nothing is gained by describing proceedings for sale as proceedings in rem. The Zemindar sells in the exercise of a statutory power of sale. The rights and duties of the parties are governed by the Regulation which makes the Zemindar exclusively answerable' for the observance of the forms prescribed (Section 8). The purchaser obtains a statutory title to have his name registered in the Zemindar's office and to obtain possession (last clause of Section 5). But the validity of the title and the validity of the registration depend on the validity of the sale which is the foundation of the new position created. A second gale, pending proceedings to set aside the first, rests on that foundation, secure or insecure as the event may determine. The second, sale is part of the superstructure and will stand or fall with the first.
28. In the present suit both sales were challenged and, if we had agreed with the Subordinate Judge as regards the first sale, we should also have agreed with him as regards the second.
29. With these observations, the appeal is allowed; the appellant is entitled to his costs in this Court and the Court below, to be paid by the principal respondents, the plaintiffs in the suit.
30. The respondents Nos. 1 and 21 (defendant No, 22) are also entitled to the costs actually incurred by them in this Court and the Court below. They will receive between them in equal parts one-quarter of the hearing fee of this appeal. The balance of the hearing fee will go to the appellant, the Maharaja.