NAJIB MOHAMMAD Vs. RAHMAN KHAN

JUDGEMENT

(1.) The suit culminating in this appeal was instituted by respondents 1 to 4 for a declaration that appellants 1 and 2 have acquired no title to the suit property by virtue of their purchase of the same, from the auction, purchasers at a revenue sale, and for confirmation, of possession, or, in alternative, for recovery of possession. The salient facts are simple and are undisputed. Touzi No. 4011 in Mouza Berhampur, in Cuttack District, bearing a Sadar Jema of Rs. 3/9/0, was recorded in the name of one Salim Khan and seven others in the Collector's registers. The plaintiffs' predecessors-in-title were some of the joint proprietors recorded in respect of a share of 5 annas in the touzi. Salim Khan himself owned 0-5-4 share, Sujat Khan 0-0-4 share, and Naliman Bibi and Mazahar Khan together 0-5-4 share. In the year 1932, a separate account was opened in the name of the plaintiffs' predecessors-in-title under Section 11, Bengal Revenue Sales Act, 1859, (Act XI of 1859), and the revenue of the touzi was distributed over two separate touzis, namely touzi No. 4011/1 allotted to the plaintiffs' predecessors-in-title, and Touzi No. 4011/R allotted to the rest of the joint proprietors whose successors-in-interest are the pro forma defendants 3 and 4. In the year 1939, the separate account was closed by the Collector and thereafter the touzi stood recorded, as before, jointly in the names of several proprietors as touzi No. 4011. On 10-4-1943 the estate was sold in public auction for arrears of land-revenue for the November Kist of 1942 and was purchased by one Gopinath Mohanty. Gopinath Mohanty sold the property a few months later to one Radhakrushna Kedia by a registered sale-deed, dated 16-6-1943 (Ex. B.). In 1945, defendant No. 1 purchased the same property from Radhakrushna Kedia, and a few months later he sold eight annas interest out of the same to defendant No. 2. Defendants 1 and 2 have thus, through mesne conveyances, acquired 16 annas interest in the estate and are in possession. A few months after the purchase by defendant No. 2, the plaintiffs raised the present suit for a declaration that defendants 1 and 2 have acquired no interest in the estate through their purchases, and that the revenue sale held by the Collector was illegal as there was, in fact, no arrear of rent due, and as the requisite notices were not served on the plaintiffs. They also averred that they had no notice of the closure of the separate accounts by the Collector in the year 1939 and that, consequently, the Collector had no jurisdiction to close the said accounts' without their knowledge. The contesting defendants traversed these allegations and pleaded that the plaintiffs were aware of the closure of the separate accounts, as well as of the revenue sale held by the Collector. The trial Court dismissed the plaintiffs' suit holding that the notices under the Act were duly served, that the revenue sale was not vitiated by any illegality or irregularity and that, consequently, the Civil Court had no jurisdiction to try the suit. Against this judgment the plaintiffs appealed to the Subordinate Judge. The learned Subordinate Judge upheld their contentions and allowed the appeal, reversing the decree of the trial Court. The purchaser defendants 1 and 2 have, therefore, come up in second appeal to this Court.

(2.) At the outset I should like to point out that there is an utter economy of material on the side of the plaintiffs in support of the allegations made by them. The first plaintiff was the sale witness examined on behalf of the plaintiffs. A few documents were also filed which, however, do not throw much light. The trial Court, as well as the lower appellate Court had, therefore, to rely upon presumptions, and upon certain general principles of law in determining the issues raised by the parties. We have ourselves felt, in this Court, that the plaintiffs' case suffers from paucity of material and tried, to obtain relevant information from the records available in the Collectorate. Unfortunately, on a reference to the Collectorate we were told that no papers relating to the closing of the separate accounts or of the revenue sale, are now in existence as they had been destroyed under the rules. Another point that I should like to mention is that the contentions now urged before us were not raised by the plaintiffs in the pleadings though it is possible that they were raised in the lower Courts during the stage of arguments.

(3.) The main contention urged on behalf of the plaintiffs through their learned counsel, Mr. M.S. Rao, is that the Collector who directed the closure of the separate accounts had no jurisdiction to do so, as the facts which would have given him jurisdiction to close the accounts did not exist at the time. Secondly, it is urged that it was upon the party who relied upon the auction sale to prove that those facts which would give the Collector jurisdiction did exist, and since the defendants have failed in this respect the plaintiffs were entitled to a decree as prayed for. The latter contention appears to have prevailed with the learned Subordinate Judge.