SURAJ NARAYAN CHAUDHURY Vs. SARASWARI BAHURIA

JUDGEMENT

(1.) The question for determination in this appeal is whether the sale of 5-annas 10-gandas in Ladugaon, Touji No. 554 for arrears of Government revenue ought, in the circumstances of the case, to be set aside. The respondent was the proprietor of this share which was the residuary share in the touji. On the 6th June 1919 this residuary share was put up for sale and was purchased by the appellant. According to the notice under Section 6 of Act XI of 1859 the estate was in arrears for Rs. 45-7-3. The respondent unsuccessfully moved the Commissioner for setting aside the sale. The suit out of which the present appeal arises was thereupon instituted on the 6th February 1920 and on behalf of the plaintiff two specific points were argued in the Court below; first, that there was collusion and conspiracy between the plaintiff's patwari and the defendant second party and that her share was purchased by the defendant second party in the benami name of defendant first party as a result of that conspiracy; and, secondly, that the estate was not in arrears on the 6th of June 1919 and that accordingly the Collector had no jurisdiction to put up that share for sale on that date. On the first question the learned Subordinate Judge found against the plaintiff and I entirely agree with his decision on the point. As the question is a short one I will deal with it at once. The allegation in regard to the question of fraud and collusion is as follows: "When she (the plaintiff) learned of this namely the sale of her estate she began to make enquiries and came to know that the defendants second party having bribed the plaintiff's patwari Khantar Das and won him over to their side, did not let the arrears of revenue be paid, in spite of the fact that the patwari had money with him. They took recourse to fraudulent, illegal and surreptitious proceedings and having got the disputed share sold by auction on the 6th June, 1919, for a grossly inadequate price, purchased the same in the name of their relative, defendant first party." In her evidence the plaintiff repeated her allegations made in the plaint. She said that defendant second party won over Khantar Das to his side by bribe and "hence he did not pay Government revenue and the property was sold." In cross-examination she said that her patwari had sufficient money with him to pay the Government revenue and that he acted in collusion with defendant second party. She was then asked the following questions:

(2.) It seems to me that on this evidence the learned Judge was right in saying that the plaintiff has entirely failed to establish her case of fraud and collusion. It may be that she was defrauded by her patwari Khantar, but if that be so, she ought to proceed against Khantar. In order to succeed in this action she must establish collusion between her agent and the actual purchaser at the revenue sale and upon her own evidence it is impossible for the Court to give her any relief on the footing that there was fraud and collusion between her agent and the purchaser at the revenue sale.

(3.) But although the learned Subordinate Judge decided this particular issue in favour of the defendants he actually set aside the revenue sale on the second ground urged before him on behalf of the plaintiff. As I have said before the property was actually put up for sale on the 6th June 1919. The case of the plaintiff is that the property was sold for her default in paying the Chait kist and that the estate was not in arrears until the 1st of Baisak corresponding to 7th of June. She accordingly contends that the sale held on the 6th of June 1919 was entirely without jurisdiction. If the plaintiff be right in her view that the property was sold for her default in paying the Chait kist, she is, undoubtedly, entitled to succeed in the action.