MIDNAPORE ZEMINDARY COMPANY LIMITED Vs. ENATULLA SARKAR, AND ON HIS DEATH HIS HAIRS AND LEGAL REPRESETATIVES JANMAN BEWA

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for at rears of rent. The tenancy is said to have been created by a kabuliyat, dated the 28th July 1900. The plaintiffs contend that the rent is payable at the annual rate of Rs. 95-8. The defendant is not the original tenant, but a purchaser of the tenure at a sale in execution of a decree for arrears of rent, held at the instance of the landlord. His contention is that in the sale proclamation it was stated that the rent was payable in respect of the tenancy at the rate of Rs. 71-10 and that whatever the terms of the kabuliyat might have been, he is not bound to pay rent at a higher rate. The District Judge has accepted this contention and has made a decree accordingly.

(2.) On the present appeal it has been contended that there is no legal evidence to show that it was stated in the sale proclamation that the rent was payable at the rate of Rs. 71-10. The District Judge has, on this point, accepted secondary evidence, as the sale proclamation has been destroyed; that secondary evidence was furnished by the sale certificate. An entry in the sale certificate shows that the property, which was sold, was liable for rent at the rate of Rs. 71-10 a year. This entry must have been based on the entry in the sale proclamation under Section 287 of the Civil Procedure Code of 1822, which was in force when the sale took place on the 15th May 1908. Under that section the decree-holder was bound to specify the property to be sold, as fairly and accurately as possible, and, under Section 316 the sale certificate was to state the property which had been sold. It is the universal practice that the description of the property sold as inserted in the sale certificate is taken from the sale proclamation. Prosonnu Kumar Mukherjee v. Srikant Raut 16 Ind. Cas. 365 : 40 C. 173 at p. 182 : 16 C.L.J. 202 : 17 C.W.N. 137.

(3.) There is consequently ample evidence upon which the District Judge could have held, as he has held, that there was an advertisement in the sale proclamation that the rent was payable at the rate of Rs. 71-10 a year. The plaintiffs are manifestly bound by this statement in the sale proclamation Deendyal Paramanik v. Juggeshur Roy Marsh 252 : 2 Hay 21; Raj Narain Mitter v. Panna Chand Singh 30 C. 213 : 7 C.W.N. 203; Aman Ali v. Mir Hossain 4 Ind. Cas. 739 : 10 C.L.J. 605; Shariat Mondal v. Surja Kant Acharja Bahadur 7 C.W.N. 386; Srimati Giribala Delia v. Mina Kumari 5 C.W.N. 497; Haradhan Chattoraj v. Kartik Chandra Chattopadhya 6 C.W.N. 877; Abdul Sawan v. Nekbar Mandal 16 Ind. Cas. 632 : 17 C.L.J. 652; Sailoja Prosad Chatterjee v. Gyani Das 16 Ind. Cas. 355 : 18 C.L.J. 29; Prosonna Kumar Mookerjee v. Sri Kant Raut 16 Ind. Cas. 365 : 40 C. 173 at p. 182 : 16 C.L.J. 202 : 17 C.W.N. 137. The decision in Lal Gopal Dutt Chowdhry v. Manmatha Nath Dutt 32 C. 258 : 9 C.W.N. 175 has no bearing upon this question.