Patna High Court
Suraj Narayan Chaudhury vs Saraswari Bahuria on 19 February, 1925
Equivalent citations: AIR 1925 PATNA 750
JUDGMENT Das, J.
1. The question for determination in this appeal is whether the sale of 5-annas 10-gandas in Ladugaon, Touji No. 554 for arrears of Government revenue ought, in the circumstances of the case, to be set aside. The respondent was the proprietor of this share which was the residuary share in the touji. On the 6th June 1919 this residuary share was put up for sale and was purchased by the appellant. According to the notice under Section 6 of Act XI of 1859 the estate was in arrears for Rs. 45-7-3. The respondent unsuccessfully moved the Commissioner for setting aside the sale. The suit out of which the present appeal arises was thereupon instituted on the 6th February 1920 and on behalf of the plaintiff two specific points were argued in the Court below; first, that there was collusion and conspiracy between the plaintiff's patwari and the defendant second party and that her share was purchased by the defendant second party in the benami name of defendant first party as a result of that conspiracy; and, secondly, that the estate was not in arrears on the 6th of June 1919 and that accordingly the Collector had no jurisdiction to put up that share for sale on that date. On the first question the learned Subordinate Judge found against the plaintiff and I entirely agree with his decision on the point. As the question is a short one I will deal with it at once. The allegation in regard to the question of fraud and collusion is as follows: "When she (the plaintiff) learned of this namely the sale of her estate she began to make enquiries and came to know that the defendants second party having bribed the plaintiff's patwari Khantar Das and won him over to their side, did not let the arrears of revenue be paid, in spite of the fact that the patwari had money with him. They took recourse to fraudulent, illegal and surreptitious proceedings and having got the disputed share sold by auction on the 6th June, 1919, for a grossly inadequate price, purchased the same in the name of their relative, defendant first party." In her evidence the plaintiff repeated her allegations made in the plaint. She said that defendant second party won over Khantar Das to his side by bribe and "hence he did not pay Government revenue and the property was sold." In cross-examination she said that her patwari had sufficient money with him to pay the Government revenue and that he acted in collusion with defendant second party. She was then asked the following questions:
Q. How do you say that Khantar, in collusion with defendant second party got the property to be sold?
Her answer was as follows:
I always saw Khantar having friendly relation with defendant second party and the property was sold through Khantar and I say so. There is no other reason for my saying so.
2. It seems to me that on this evidence the learned Judge was right in saying that the plaintiff has entirely failed to establish her case of fraud and collusion. It may be that she was defrauded by her patwari Khantar, but if that be so, she ought to proceed against Khantar. In order to succeed in this action she must establish collusion between her agent and the actual purchaser at the revenue sale and upon her own evidence it is impossible for the Court to give her any relief on the footing that there was fraud and collusion between her agent and the purchaser at the revenue sale.
3. But although the learned Subordinate Judge decided this particular issue in favour of the defendants he actually set aside the revenue sale on the second ground urged before him on behalf of the plaintiff. As I have said before the property was actually put up for sale on the 6th June 1919. The case of the plaintiff is that the property was sold for her default in paying the Chait kist and that the estate was not in arrears until the 1st of Baisak corresponding to 7th of June. She accordingly contends that the sale held on the 6th of June 1919 was entirely without jurisdiction. If the plaintiff be right in her view that the property was sold for her default in paying the Chait kist, she is, undoubtedly, entitled to succeed in the action.
4. The sale having taken place, it is for the plaintiff to show that there was no jurisdiction in the Collector to put up the property for sale on the 6th of June 1919. The only evidence which she adduces in support of her case is a notice issued by the Collector under Section 7 of Act XI of 1859 and the sale certificate issued in this case. The notice under Section 7 runs as follows: Whereas a sum of Rs. 45-7-2 is due on account of arrears of revenue for the period ending the 21st Chait, 1326, corresponding to the 28th March, 1919 in respect of Touji No. 554, having a sadar jama of Rs. 167-8-3 lying within the jurisdiction of this Court for the realization of the same, the 6th of June 1919, is hereby fixed as the date, of sale by auction. A notification is, therefore, issued in the name of Musammat Saroshwati Bahuria forbidding all the tenants as well as the co-sharers of the said mahal to pay to the defaulting proprietor their dues accruing after the last day fixed for payment of Government revenue on pain or not being allowed credit in their accounts with the purchaser in respect of the sum so paid.
5. In order to understand the significance of this notice, it is necessary to consider Section 7 of Act XI of 1859. That section provides as follows:
Whenever an estate or share of an estate is notified for sale, as provided by Section 6 of this Act, the Collector or other officer as aforesaid shall affix a proclamation in the language of the district, in his own office, and as soon thereafter as may be in the Munsifs Courts and Police thanas within which the estate or share of an estate, or any part of it, is situated, and also at the cutchery of the malguzar or the owner of the estate, or share of an estate, or at some conspicuous place upon the estate or share of an estate, forbidding the raiyats and under-raiyats to pay to the defaulting proprietor any rent which has fallen due after the day fixed for the last day of payment, on pain of not being entitled to credit in their accounts with the purchaser for any sums so paid.
6. It is necessary then for the Collector to mention in the notice under Section 7 the last day fixed for payment of Government revenue under Section 3 of Act XI of 1859. It is not necessary for him to state the day on, which the Government revenue should have been paid according to the Settlement and kistbandi of the mahal. As has been often pointed out, care should be had in avoiding confusion between the month for which the instalments are due according to the Original Settlement and kistbandi of the mahal and the month in which the latest dates of payment are fixed. Section 2 of Act XI of 1859 defines an arrear of revenue and it provides that if the whole or a portion of a kist or instalment of any month of the era according to which the Settlement and kistbandi of any mahal have been regulated be unpaid on the first of the following month of such era, the sum so remaining unpaid shall be considered an arrear of revenue. Section 3, on the other hand, empowers the Board of Revenue to determine upon what dates all arrears of revenue and all demands which by the Regulations and Acts in force, are directed to be realized in the same manner as arrears of revenue, shall be paid up in each district under their jurisdiction, in default of which payment the estate in arrears in those districts, except as hereinafter provided, shall be sold at public auction to the highest bidder. It is necessary to remember that Government revenue is not in arrear until the first of the following month when the Government revenue should be paid according to the original kistbandi; and the Collector has no power to put up the estate for sale until the expiry of the latest date fixed for the payment after the estate is in arrear. Now, there can be no doubt as to this on the construction of Section 2 and Section 3 of the Land Revenue Sales Act. To take a concrete example: if revenue should be paid in the month of March according to the original kistbandi, then the estate is not in arrear until the first of April and the Collector has no jurisdiction to put up that estate for sale until the expiry of the next latest date fixed for payment after the first of April. The argument of the plaintiff in this case is that according to the original kistbandi the revenue, to recover which the property was ultimately sold, should have been paid on the 28th of March. The estate was, therefore, not in arrear until the 1st April and as the next latest date fixed for payment of the Government Revenue was the 7th of June, the Collector acted beyond jurisdiction in putting up the property for sale on the 6th June 1919. In my opinion there is no substance in the argument on the construction of the document upon which the plaintiff relies. As I have said, that was a notice issued under Section 7 of the Act; and, as it appears from Section 7, the date mentioned in that document is the latest date fixed for payment under Section 3 and not the date for payment of Government revenue under Section 2 of the Act. That being so, it is clear that the estate was already in arrears and the latest date fixed for payment was the 28th of March. That being so, the Collector had complete jurisdiction to put up the property for sale on the 6th June.
7. The learned Vakil also relies on the sale certificate Ex. G. No doubt it is stated there that the property was sold for arrears of revenue of March kist of 1919; but the document was inartistically drawn, and there is nothing to indicate that the term "kist" used in that document is used in the sense in which that term is used in Section 2 of the Act. I may point out that the manner in which these notices are drawn up in, the Collectorate give us endless trouble and that care should be had in avoiding confusion between the month for which the instalments are due according to the Original Settlement and kistbandi of the mahal and the month in which the latest dates for payment are fixed under Section 3 of the Act. On the construction of Ex. B, I have no doubt at all that the latest date fixed for payment was the 28th of March and that the property was liable to be put up for sale on the 6th of June.
8. The only other point which has been argued before us is that there was an excess payment of 10-annas 7-pies per year ever since 1902 on behalf of the respondent and that accordingly there was in the hands of the Collector Rs. 11 in all which he should have credited to the respondent in her account. Assuming that the argument of the learned Vakil is right, it is to be pointed out that the arrear to recover which the property was sold was Rs. 45-7-3. The learned Vakil states that in that case the notice issued under Section 6 was wrong in so far as that notice stated that the arrears were Rs. 45-7-3. But Section 6 does not require the Collector to mention the arrears for which the property is put up for sale.
9. In my opinion the decision of the learned Subordinate Judge on the second question which I have dealt with is erroneous. It follows that this appeal must be allowed and the judgment and decree of the learned Subordinate Judge must be set aside and the plaintiff's suit must be dismissed with costs in this Court and in the Court below.
Adami, J.
10. I agree.