LAKSHMIJAN Vs. NAZUMIA

JUDGEMENT

(1.) This appeal arises out of a suit for khas possession of certain land on establishment of title. The plaintiff's case was that Taluks Nos. 400 and 401 were advertised for sale under the Patni Sale Law and that on 16 May 1921 he purchased Taluk No. 401 for a sum of Eh. GO. The Collector how. over by mistake entered the sale against Taluk No. 400 which was not sold at all. The plaintiff subsequently applied to the Collector for rectification of the error, but was referred by the Collector to the civil Court on the ground that the matter was beyond his jurisdiction. Thereupon this suit was instituted. The defence was that what was sold was Taluk No. 400 and not 401; and that if the latter taluk was in fact sold, the sale was void on account of certain irregularities in the procedure. The trial Court on a consideration of the evidence found that Taluk No. 401 and not 400 was sold and gave a decree accordingly. That decree was confirmed on appeal by the Subordinate Judge of Chittagong; and defendants 7 and 8 have now preferred this second appeal. Two points have mainly been relied upon on behalf of the appellants, Firstly, it is argued that the Courts below hold without any legal evidence that the taluk sold was No. 401 and not No. 400; and, secondly, it has been urged that they have erred in law in holding that the sale was voidable and not altogether void. We do not think there is any substance in either of these contentions.

(2.) With regard to the first point a reference to the judgment of the Courts below shows that there was legal evidence to support the conclusion of fact arrived at, namely, that what was sold was Taluk No. 401. Two of the strongest pieces of documentary evidence, were Exs. 3 and 4 which go to show that the kabuliyat, Ex. 1 (a), relating to Taluk No. 401, and a statement of the balance of rent due in respect of that taluk were produced by the landlord in accordance with the requirements of Section 10 of the Patni Sale Regulation. On the other hand, no evidence of the kind was adduced in regard to Taluk No. 400. This clearly indicates that what was sold was Taluk No. 401. The mere fact that the Collector made a mistake in his register in entering the sale against Taluk No. 400 cannot deprive the plaintiff of his title to the property which has been found to have been purchased by him. With regard to the second contention there can be no doubt that the sale under the Patni Regulation is only voidable and not void (see Sm. Ramsona Chowdhry V/s. Naba Kumar [1912] 10 I. C. 90 and as no steps were taken to set aside the sale under the procedure laid down in the Regulation, it cannot be now impugned as invalid by way of defence in a suit the period of limitation having expired long ago. Both the points argued therefore fail and this appeal must be dismissed with costs Suhrawardy, J.

(3.) I agree with my learned brother in what he said on the first point taken on behalf of the appellants. As to the second point the case is fully covered by the decision in Sm. Ramsona Chowdhuri V/s. Naba Kumar [1912] 10 I. C. 90 where it has bean held that the validity of a sale under the Patni Law cannot be questioned by way of defence. It has been pressed upon us with great vehemence that the sale in this case was a nullity, there being no proof of the service of notice in connexion with the sale as provided for by Regulation 8 of 1819. This defence, in my opinion, cannot be urged in the present suit, for the very cogent reason that the zamindar is not a party to the suit. Under Section 8 of the Regulation the zamindar shall be exclusively answerable for observance of the forms described therein. The question therefore with regard to the observance of these forms cannot be agitated as against a purchaser who is a stranger. The proper mode for setting aside the sale on account of non- observance of the forms mentioned in Secs.8 and 10 is to bring a suit under Section 14 of the Regulation. Whatever view may be taken with regard to the question arising under Section 47, Civil P.C., which is very differently worded, the defendants cannot be allowed to plead that the sale is invalid by way of defence.