NRISINHA KUMAR SINHA Vs. SHYAM SUNDAR DEBANSHI

JUDGEMENT

(1.) This appeal is by the plaintiff. The plaintiff's case is that the disputed lands are the choukidari chakran lands situate in mouja Jamuni and Kanaipur appertaining to touji no. 1401 of the Birbhum Collectorate. The previous number of the touji was No. 139 of the Murshidabad Collectorate. On 29th June 1939 a requisition for payment of dues under the Village Choukidari Act was issued under Section 59 of the said Act. Thereafter without serving a notice under Section 5, Bengal Land Revenue Sales Act, 1859, the said choukidari chakran lands were advertised for sale after the issue of a notice under Section 6, Bengal Land Revenue Sales Act 1859. The sale took place on 19th September 1939 and the disputed lands were purchased by defendant 1, at the highest bid. The plaintiff who owned 4 as. 8p. share in the disputed lands instituted this suit for setting aside the sale and for recovery of possession, There was an alternative prayer for reconveyance if the prayer for setting aside the sale could not be entertained. In view of the findings arrived at by the Courts below the alternative prayer has not been pressed in this Court and no reference need be made to the allegations on which the alternative prayer was founded. The validity of the sale was attacked on two grounds: (1) That the notice under the provisions of Section 5, Bengal Land Revenue Sales Act, 1859, was neither issued nor published and (2) that in the requisition under Section 54 of the said Act the disputed lands were not properly described. The same misdescription attached to the notification under Section 6, Bengal Land Revenue Sales Act, 1859 and that in consequence of misdescription the disputed lands were sold at an under valuation.

(2.) The defence of the contesting defendant was (1) that the suit was bound to fail on account of non-joinder of the other co-sharers of the plaintiff; (2) that the service of a notice under Section 5, Bengal Land Revenue Sales Act, 1859 was not necessary in order to bring to sale choukidari chakran lands under the special provisions of the Village Choukidari Act, 1870; (3) that there was no misdescription of the lands sold and even if there was any the misdescription was not such as to justify a reversal of the sale.

(3.) The trial Court dismissed the plaintiff's suit and the judgment of the trial Court was affirmed on appeal. The findings of the lower appellate Court are (1) that there was no defect in the frame of the suit because of the non-joinder of the other co-sharers of the plaintiff ; (2) that the misdescription was not sufficient to justify a Betting aside of the sale and (3) that notice under Section 5, Bengal Land Revenue Sales Act, 1859, was not necessary.