JAGADISH CHANDRA MITRA Vs. KUNJA MOHAN SHAH

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for setting aside a revenue sale which was held on 9 January 1933. It appears that originally there was touji 313 of the Dacca Collectorate in which defendants 1 and 2 and their brother had 2 annas 5 gandas share. They sold their share to the plaintiffs predecessors, after which there was a partition and the 2 annas 5 gandas share was retained as old No. 313 for which the revenue assessed was Rs. 179 odd. The present suit concerns the residuary mehal 313 of 9 annas odd share in which the plaintiffs are now the owners of 8 annas share while the remaining 1 anna share belongs to defendant 2 who is the step-brother of defendant 1. The total revenue for the residuary share is Rs. 104-13-6. According to the Collectorate registers there are four latest dates for payment of arrears of revenue, namely 28 June, 28 September, 12 January and 28 March, the revenue being payable in four kists. The amount of Rupees 12-3-3 was in arrears on 28th March 1932. The notification for sale was issued on 7 December 1932. The sale actually took place on 9 January 1933, the property being knocked down to defendant 1 for Rs. 51. The plaintiffs case is that the sale was held without jurisdiction as the date of sale was prior to the date of the latest day for payment of arrears which should be 12 January in this case, and further the sale was vitiated by fraud because defendant 1 by fraudulent misrepresentation dissuaded intending purchasers from bidding. The learned Subordinate Judge has held in favour of the plaintiffs on both these points and decreed the suit. Hence this appeal by the defendant.

(2.) The same two points have been raised in this appeal. The first question is whether the latest date for payment of arrears under Section 3, Land Revenue Sales Act is 12 January 1933 in this case as held by the learned Subordinate Judge. The defence contention is that the date mentioned in the Land Revenue Boll of Touji 313 are the latest dates for the payment of arrears of land revenue and they are not the dates of the respective four kists. For this reliance is placed on Ex. 0. The plaintiffs case on the other hand is that the aforesaid dates are also the dates of the kists. Consequently when one kist is in default the latest date for the payment of that arrear would be on the following date for payment. Therefore in this particular case the arrear shown against 28 September would be payable on 12 January in accordance with the provisions of Section 3, Land Revenue Sales Act. Dr. Sen Gupta for the defendant-appellant has laid stress on Cols. 6 and 7 of Ex. C. wherein the heading is the latest date for the payment of the arrears of land revenue . This must be taken along with the other Collectorate registers which go to show that the four instalments are also taken to be kists. In the land revenue arrear list (vide Ex. E), the entries contain a heading for "kists ending 28th September 1932". The touji ledger (vide Ex. F) shows a statement of the four kists and further the payments made on 24 June 1932 and 27 June 1932, for instance, are credited to the current land revenue account of the first kist. For the second kist payments were made on 22 September, 1932, 27 September 1932 and 29 September 1932 and the total sum Rs. 22-4-0 was credited to the current land revenue account leaving a balance of Rs. 3-12-0. This latter sum together with Rs. 7-8-3 due on account of previous arrears gives the total sum of Rs. 12-3-3 in arrears on 28 September 1932. That the kists are also the same as the latest dates for the payments mentioned in the Land Revenue Boll is further confirmed by the oral evidence of plaintiff 1 who speaks of "Mats June, September, January a March, not according to Bengali calender nor on 30 Bhadra". This is corroborated by the defendant 1 himself. He says: "My own kists are January, March, June and September" and further: "If a kist is not paid in time the property is put up to sale at the time of the next kist." Taking all the evidence together it seems to us to be reasonable to hold that the dates and the amounts mentioned in the Land Revenue Roll (vide Ex. C) are the kists as also the latest dates for the payment of arrears. Consequently an arrear in respect of 28 September would have its latest date of payment on 12 January following. Dr. Sen Gupta has laid stress on the notification of sale (vide Ex. A-l), which was issued on 7 December 1932 and which contains the following words: This proclamation of sale is being served for realization of the arrears of revenue in respect of the demand (of revenue) payable on or before 30 Bhadra 1839, B.S. for the above mentioned Mahals and shares of Mahals and the latest date for payment of which was fixed on 28 September 1932.

(3.) The expression 30 Bhadra 1339, B.S. however is misleading and inconsistent with the oral evidence in this case. The view that we are inclined to take is consistent with that taken by the Judicial Committee in Mt. Saraswati Bahuria V/s. Surajnarayan Choudhuri . There also the revenue payable was taken to be in respect of four instalments in spite of the fact that the entries in the notification issued by the Board of Revenue contained the words "latest dates for payment". Their Lordships did not rely on the notification that was issued under Section 7, Revenue Sales Act. In Krishna Chandra Bhowmick Vs. PabnaDhanabhandar Co., Ltd. , it was found that the latest dates for payment of instalments of revenue and the latest dates for payment of arrears were the same. In the present case, having regard to the evidence before us, we prefer to follow the authority of the aforesaid two decisions of the Judicial Committee rather than the view that was taken in Radha Gobinda Deb V/s. Girija Prosanna Mukherji, . In these circumstances we think that the learned Subordinate Judge was right in holding that the latest date of payment in the present case is 12 January 1933. Consequently the sale which was actually held on 9 January 1933 was without jurisdiction.