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Judgment
The plaintiff in this case is Musammat Rajbansi Kuer. She holds a 9-annas share in Touzi Nos. 4543. The entire mahal was sold by auction for arrears of Government revenue for the June instalment on the 21st of September 1911 and was purchased by the defendant Bhirukhi Ojha for Rs. 5,750. An appeal was filed to the Commissioner. This appeal was dismissed on the 2nd of April 1912. On the 27th of February 1913 the plaintiff filed the present plaint asking that the sale be set aside on ten grounds as set forth in paragraph 6 of the plaint.
(1). The sale was a fraudulent sale brought about by her co-sharer Rameshar Prasad Singh for whom Bhirukhi Ojha is a mere benamidar.
(2). The account of the arrears as entered in the ledger is wrong.
(3). No notice under Sections 6 and 7 was issued.
(4). The notice u/s 6 was not properly prepared.
(5). The date of sale was not properly given in the notice.
(6). The name of the mahal is Chako Chapra Gangi Chapra but in the said notice only Chako Chapra was given.
(7). There are six proprietors but the name of one only was given in the notice.
(8). The amount of arrears as entered in the notice was wrong.
(9). The notice u/s 7 was not served and was not in proper form.
(10). By reason of this fraud the mahal the fair value of which is Rs. 18,000 has been sold for Rs. 5,750.
Paragraph 7 of the plaint runs as follows:
That your petitioner also begs to submit that when the June instalment of 1911 had fallen into arrears, the said mahal ought not to have been sold by auction before the 28th September 1911, and the Revenue Officers had no power, according to the provisions of law, to sell the said mahal before the 28th September 1911. For the above reason also the said sale is entirely against law, null and void and ineffectual.
A written statement was filed and upon the pleadings the following issues were framed:
Is the suit maintainable in its present form ?
Has the plaintiff any cause of action ?
Whether defendant No. 2 is a furzidar for defendant No. 1 ?
Whether defendant No. 2 was party to the fraud ? (Defendant No. 1 is Rameshar Prasad Singh. Defendant Nos. 2 is Bhirnkhi Ojha).
Whether the sale is irregular and illegal and can it be set aside ? Whether the price is inadequate ?
What is the extent of the plaintiff''s share in this mahal ? Can the plaintiff get his share re-conveyed from defendant No. 2. If so, on what term ?
Whether the amount of the arrears stated in the notice is correct ? Whether the account in the tauzi ledger of the Collector is correct ?
The learned Subordinate Judge found that there was no evidence to show that Bhirukhi Ojha was a furzidar for Rameshar Prasad. He found also that notices under Sections 6 and 7 had been properly served and were in order: that the plaintiff had failed to prove that there was no arrear of revenue on the date of sale and that the amount shown in the notices as the arrears was correct and that no order could be made ordering the defendant No. 2 to re-convey 9 annas of the mahal to the plaintiff. But upon the ground that the sum due for the kist ending the 7th of June 1911 was not an arrear but a sum to be paid as revenue for the June kist, he held, that under Sections 2 and 3 of Act XI of 1859, that sum if not paid on the 7th of June would not become an arrear of revenue until the 1st of July and that the date of payment of that arrear would be the 28th of September 1911. On this reasoning he held that there were no arrears on the 21st of September 1911, the date of the sale, and that, therefore, the sale was ab initio void. He, therefore, gave the plaintiff a decree for the recovery of the mahal sold.
We have no hesitation in agreeing with the learned Subordinate Judge that there is no reliable evidence on the record to show that the defendant No. 2 is farzidar for the defendant No. 1. There is no real attempt to show any connection between them. There is a considerable body of evidence to show that Bhirukhi Ojha has since the sale, been in actual possession of the estate. We have also no hesitation in saying that the plaintiff has entirely failed to prove that the notices u/s 6 and Section 7 were not served. It is clear that a receipt for these notices was signed by Fauzdar Lal. The learned Subordinate Judge has shown clearly that the evidence given by Fauzdar Lal that he did not receive this notice is entirely false. There is also no reason for supposing that the use of the term Chako Chapra in the notice was not a completely adequate description. in the register D the village is known as Chako Chapra and the omission of the words Gangi Chapra could not mislead any body desirous of bidding at the sale. The only point upon which the plaintiff can succeed is the point taken by the learned Subordinate Judge.
As we understand the framing of the issues the plaintiff was not serious in the suggestion made in paragraph 7 of his plaint. If indeed there was anything in the suggestion that the arrears of revenue the latest date for payment of which has been fixed as the 7th of June, were not really arrears until the 1st of July, every revenue sale held in Bengal and Bihar during the last fifty years would be void. The learned Subordinate Judge seems to us to have fallen into this error that he has regarded the revenue kist as falling due on the 7th of June whereas the fact is that the 7th of June is the latest date of payment for previous arrears. We have been shown papers to prove that the kists in which the revenue of this particular mahal is paid are as follows:
Rs. as. p. For Chait Baisakh ... 68 12 0 For Jeth, Asharah Shraban ... 80 6 5 For Asin, Kartik, Aghan ... 34 6 0 For Pus, Magh, Phagun ... 85 15 0
The Chait-Baisakh kist becomes payable on the last day of Baisakh which ordinarily falls between the 1st and 15th of May, and in the year 1911 did fall on the 29th of April. Therefore, the sum due for the Chait-Baisakh kist became an arrear on the 1st of May, and if this arrear was not paid by the date fixed by the Board of Revenue as the latest date of payment the 7th of June, the estate became immediately liable to sale. But of these facts, there is upon the record no evidence and the question is whether we shall be exercising a wise discretion in allowing the appellant to bring this evidence upon the record at the appellate stage. We feel bound to say that the view taken by the learned Subordinate Judge was a view which the defendants to the suit could hardly anticipate. There was no indication in the framing of the issues that the case would be fought upon this basis. There was no suggestion in the grounds of appeal taken before the Commissioner that this was the origin of the plaintiff''s assertion that the estate was not in arrears at the date of the sale. We feel that for the ends of justice an opportunity must be given to the defendant to bring upon the record, the necessary evidence to show that the kist for payment of which the latest date fixed is the 7th of June is the Chait Baisakh kist and that the sum due thereunder became an arrear of revenue on the last day of Baisakh. We, therefore, remit the record to the learned Subordinate Judge with instructions that he take evidence upon this point and submit the evidence to this Court before the 1st of July. Let the record be sent down at once.