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Hon'ble Maharajadhiraj Sir Bejoy Chand Mahatab Bahadur Vs. Mamezedar Rahman and Ors. (19.07.1916 - CALHC) - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.917
AppellantHon'ble Maharajadhiraj Sir Bejoy Chand Mahatab Bahadur
RespondentMamezedar Rahman and Ors.
Cases ReferredAhsanulla Khan Bahadoor v. Hurri Churn Mozoonidar
Excerpt:
putni regulation viii of 1819, section 8, notices under - non-publication for a period immediately preceding sale of putni, effect of--pntni, sale of. - .....brojo kissore singh, the evidence of the peon who is said to have stuck up the notices on the notice board in the collector's cutchery and the evidence of satish chunder chatterjee, who was the assistant nazir of the collector's court and who stated that on the first day when the notices were stuck up he himself attended to see the operation performed, so that there should be no mistake as to the notices having been stuck up. the learned judge, having heard the evidence and having had before him the return made to the assistant nazir, came to the conclusion that these notices had not been exhibited or stuck up on the notice board in the collector's court for a period of one month. the facts appear to be these: on the 14th april 1909, the notices were first affixed to the notice.....
Judgment:

Fletcher, J.

1. These are two appeals by the second defendant against the judgment of the learned Subordinate Judge of Bankura in two suits. The suits were brought to set aside a sale held under the Putni Regulation, namely, Regulation VIII of 1819, under which two putni tenures, one known as lot Gopalnagore and the other as lot Uttarkhandu, were brought to sale and at which sale the present appellant, the defendent No. 2, became the purchaser, lot Gopalnagore being purchased for a sum of Rs. 1,000 and lot Uttarkhandu for the sum of Rs. 500. That sale took place on the 15th May 1909. The plaintiffs are some of the co-sharers in the putni. The first defendant, the Maharaja of Burdwan, is the zemindar. The second defendant, the appellant before us, is the son of the defendant No. 3 who is also a co-sharer and the defendants Nos. 4 to 11 are the other co-sharers, the remaining defendants being formal defendants who were joined because they would not act along with the plaintiffs. The sale was challenged on the ground of improper publication of the notices required by the Putni Regulation. It was also challenged on the ground that the defendant No. 2 was not the real purchaser but had acquired the property on behalf of his father, the defendant No, 3, who was a co-sharer of the plaintiffs and most of the other defendants and that really the property had been acquired for the benefit of all the co-sharers. The case largely turns on the questions, first, as to whether the publication of the notices in the Collector's Cutchery as required by the terms of the Regulation has been properly proved and secondly, if that publication has not been properly proved, whether the non-publication of the notices in the Collector's Cutchery is fatal so as to render the sale invalid.

2. On the first point the learned Subordinate Judge has come to a clear finding that the evidence does not show that the notices were properly published. He had before him the evidence of the Nazir of the Collector's Court, namely, Brojo Kissore Singh, the evidence of the peon who is said to have stuck up the notices on the notice board in the Collector's Cutchery and the evidence of Satish Chunder Chatterjee, who was the Assistant Nazir of the Collector's Court and who stated that on the first day when the notices were stuck up he himself attended to see the operation performed, so that there should be no mistake as to the notices having been stuck up. The learned Judge, having heard the evidence and having had before him the return made to the Assistant Nazir, came to the conclusion that these notices had not been exhibited or stuck up on the notice board in the Collector's Court for a period of one month. The facts appear to be these: On the 14th April 1909, the notices were first affixed to the notice board in the Collector's Court. The return of the peon as well as the memo, of the Assistant Nazir on the return show that for some reason or other the notices had been removed on the 28th April 1909 and that the Assistant Nazir signed the memo., which was endorsed on the return, that he received back the notices from the peon on the 28th April. Then subsequently there appear to have been two corrections made on the return as well as on the memo, of the Assistant Nazir. The first correction was that the date 14th May was substituted for the dale 28th April and the next date which was substituted for the 14th May was the 15th May, that being the date on which the sale took place. There seems to be no doubt that the Regulation contemplates the notices being removed from the notice board in the Collector's Court on the date of the sale and the learned Judge, having that in view and having seen the witnesses and examined the documents, came to the conclusion that these alterations were made for the purpose of attempting to show that these notices which the evidence proved had been returned to the Assistant Nazir on the 28th April had, in fact, remained on the notice board in the Collector's Court down to the date of the sale. That was the view that commended itself to the learned Subordinate Judge, and from a perusal of the evidence, I come to the conclusion that that was the more probable and reasonable view to take on the evidence which has been placed before and read to us by Mr. Das, Counsel for the appellant.

3. Then the next point is: 'is the failure to have the notices on the notice board in the Collector's Cutchery for a reasonable time prior to the sale fatal under the Putni Regulation? It is quite true, as Mr. C.R. Das says, that the cases in this Court are not uniform as to what is required with reference to the notices that are to be stuck up on the notice board in the Collector's Cutchery, but excepting the obiter dictum in Ahsanulla Khan Bahadoor v. Hurri Churn Mozoomdar 17 C. 474 : 8 Ind. Dec. (N.S.) 855, the cases do not go further th ri this in Mr. Das's client's favour: that all that is required is that the notices should appear on the notice board in the Collectors Cutchery for a reasonable time preceding the time of the sale. I think if one discards the dictum in Ahsanulla Khan Bahadoor v. Hurri Churn Mozoonidar 17 C. 474 : 8 Ind. Dec. (N.S.) 855, that is the most favourable way that the authorities can be stated to be in favour of the view presented by Mr. C. R. Das. Accepting that test as the true test, what does the evidence show on the facts found in this case by the learned Subordinate Judge, with which I agree? It shows that between the 28th April and the 15th May, the most material portion of the time, no notice was exhibited on the Collector's notice board as required of the law. It seems to me that the failure to exhibit the notices, during that period immediately preceding the sale must be a matter which would render the sale invalid, I agree with the result arrived at by the learned Subordinate Judge and whatever view we take of the authorities, whether we take the view pressed by Mr. C. R. Das which is supported by one class of cases or whether we take the view expressed in the other class of cases that the notice must be exhibited on the notice board in the Collector's Court for a clear month preceding the sale, in either view that we adopt on the two different sets of authority, I think that this sale cannot stand. That being so, the two appeals fail and must be dismissed with costs. Only the plaintiffs-respondents will get costs in these cases. In Appeal No. 178 of 1913 we assess the hearing-fee at one hundred and fifty rupees.

Trunon, J.

4. I agree.

IN No. 44 of 1912.

5. This appeal not being pressed is dismissed with costs. Only the plaintiffs-respondents will be entitled to costs. The hearing fee will be assessed according to the scale of this Court.


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