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Sheikh Mohammad Abdul Aziz Vs. Baijnath Goenka and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.380
AppellantSheikh Mohammad Abdul Aziz
RespondentBaijnath Goenka and ors.
Cases ReferredLala Mobaruck Lal v. The Secretary of State
Excerpt:
revenue sale law (act xi of 1859), sections 5, 6, 7 - notice service of--certificate of sale--evidence conclusion--bar of suit to set aside--sale--public demandsar recovery act (viii of 1868 b.c.), section 8. - .....the subordinate judge dismissed the suit on the ground that the purchaser had obtained a sale certificate from the collector, that this certificate was conclusive evidence that all notices required to be served or posted under act xi of 1859 were duly served and posted, and that the title of the purchaser who had obtained the certificate could not be impeached or affected by reason of any omission in formality or irregularity in the service or posting of any such notice.4. on appeal to the district judge, he has set aside the sale and now the auction purchaser appeals to this court.5. in the lower courts his main contention was that under section 8 of act vii of 1868, a suit to set aside the sale on the ground of irregularity in serving notices under sections 5, 6 and 7 of act.....
Judgment:

1. This is an appeal by the auction purchaser at a revenue sale.

2. The sale took place on the 24th August 1903 when the property was purchased by the defendant No. 1. The plaintiff and the defendant 2nd party were maliks of the shares sold. The plaintiff alleged that he had paid his share of the Government revenue, that his co-sharers in collusion with the purchaser defaulted and caused the sale fraudulently, that notices under Sections 5, 6 and 7 of the Sale Law were not issued and served, and that the price fetched at the sale was inadequate.

3. The Subordinate Judge dismissed the suit on the ground that the purchaser had obtained a sale certificate from the Collector, that this certificate was conclusive evidence that all notices required to be served or posted under Act XI of 1859 were duly served and posted, and that the title of the purchaser who had obtained the certificate could not be impeached or affected by reason of any omission in formality or irregularity in the service or posting of any such notice.

4. On appeal to the District Judge, he has set aside the sale and now the auction purchaser appeals to this Court.

5. In the lower Courts his main contention was that under Section 8 of Act VII of 1868, a suit to set aside the sale on the ground of irregularity in serving notices under Sections 5, 6 and 7 of Act XI of 1859 was not maintainable.

6. Section 8 of Act VII of 1868 provides as follows : Every certificate of title which may be given to any purchaser under provisions of Section 28 of the said Act XI of 1859 or of Section 11 of this Act shall be conclusive evidence in favour of such purchaser and of every person claiming under him, that all notices in or by this Act or by the said Act XL of 1859 required to be served or posted, have been duly served and posted; and the title of any person who may have obtained any such certificate shall not be impeached or affected by reason of any omission, informality, or irregularity as regards the serving or posting of any notice in the proceedings under which the sale was had at which such person may have purchased.'

7. We are of opinion that the provisions of this section operate as a bar to the success of the present suit and we are supported in this view by the case of Sheorutton Singh v. Net Loll Sahu 30 C. 1 : 6 C.W.N. 689 in which it was distinctly held that in a sale for arrears of revenue after the certificate of title has been issued to the purchaser, Section 8 of Bengal Act VII of 1868 will operate as a bar to a suit to set aside the sale on the ground of irregularity in serving and posting notices under Section 6 of Act XI of 1859. The principle applies to notice under Sections 5 and 7.

8. On behalf of the respondent our attention has been drawn to the case of Bal Mokoond Lal v. Jirjudhun Roy 9 C. 271 in which it was held that the Court was not bound under Section 8 of Bengal Act VII of 1868 to presume conclusively that the provisions of Section 6 of Act XI of 1859 as regards the fixing of the date of sale had been complied with. The effect of ft certificate of title having been given to the purchaser is merely, it was said, that the Court is bound to presume conclusively the duo service and posting of notices, but this did not cover all the requirements of Section 6 of Act XI of 1859. One of the requirements of that section is that the notice under Section 6 should be posted not less than 30 clear days before the date of sale. It appeared on the fall of the proceedings that the date fixed for the sale was not 30 clear days after the posting of the notice under Section 6 and it was held that Section 8 of Act VII of 1868 did not cover the irregularity.

9. Then, another case to which our attention has been drawn is the Full Bench case of Lala Mobaruck Lal v. The Secretary of State for India in Council 11 C. 200 (F.B.) In this case also the question whether Section 8 of Act VII of 1868 had any application in a case where notices under Section 6 of Act XI of 1859 had been affixed less than thirty days before the sale. We may refer to the observations in regard to these cases in Sheoruttan Singh's case 30 C. 1 : 6 C.W.N. 689.

10. It is not contended in the present case that there was any thing wrong about the date of the sale, and the allegation of fraud has been, negatived and is not now relied upon. In the circumstances we are of opinion that the suit must fail.

11. For these reasons, we decree the appeal with costs to be paid by the plaintiffs-respondents.


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