NANAK PRASAD SAHU Vs. MTKASEDA KUMRI

JUDGEMENT

(1.) This is the last of three second appeals which have been preferred from decisions in 1931 of Mr. Sharma as officiating Additional District Judge of Monghyr in appeals arising from suits to set aside sales held under the Revenue sales Act. The decisions in the others are reported in Jadunandan Singh V/s. Savitri Devi 1933 Pat 236 and Damodar Prasad V/s. Mt. Wakulunissa Bibi 1935 Pat 490.

(2.) In the suit out of which the present appeal arises the plaintiff sued to have the sale under the Revenue Sales Act, 1859, held on 6 June 1927, in respect of his ten annas odd share in village Nishara bearing tauzi No. 761, set aside on the ground that the essential notices had not been served. It was averred that the defendant, in collusion with Teni Sahu, his son-in-law, had fraudulently secured surreptitious service return of the notice and fraudulent sale of the plaintiff's share and purchase thereof and Teni Sahu, in collusion with the Court peon, had also prevented plaintiff from having any knowledge or information of the sale until 22 September, following. The plaint sets out that an appeal against the said sale had been summarily rejected by the Commissioner of Bhagalpur. There was no allegation in the plaint that the sale had been held by the Collector without jurisdiction nor even that there had been no arrear of land revenue in respect of which it could have taken place and in particular there is no reference to any "kist" or instalment whether in the restricted meaning of Section 2 of the Act or in the signification of the term in the Tauzi Manual, the Tauzi Ledger and popular parlance. Equally in the issues framed there is no mention of any question of jurisdiction or in particular of the sale having been held prior to the date on which the Collector could legally hold it. Further nowhere in the judgment of the firsts Court is there any mention of the question of jurisdiction or of "kist. "

(3.) Thus until the stage of appeal the substantial question agitated was whether the sale was liable to be set aside on the ground of fraud and suppression of notice. The learned Subordinate Judge decided the issue on that point in the negative. The appellate Court found itself in complete agreement with that finding and it is not contested before us. It differed indeed from the view of the first Court that the suit on the ground set out in the plaint was not entertainable by reason of Section 33 of the Act, which enables the Court to annul a sale only on a ground set out in the appeal provided by Section 25 which appeal must be preferred on or before the sixtieth day of sale whereas the plaintiff's appeal being late, there was no valid appeal. The appellate Court is here in error, since an appeal preferred out of time is no appeal in the eye of the law as observed by my brother Mohamad Noor, J., in Pirthwi Chand Lal V/s. Kirtyanand Singh 1932 Pat 21 and the trial Court's view that the suit, as framed, would fail also on this ground, is correct. Thus the suit, as framed, was bound to fail on these grounds of fact and law. But the lower appellate Court allowed to be raised and accepted a point in favour of the plaintiff- appellant admittedly raised for the first time at the hearing of the appeal. The point is that the Collector had in the circumstances of the case, no jurisdiction to sell the estate.