BHUPENDRA NARAYAN SINHA Vs. MAHARAJ BAHADUR SINHA

JUDGEMENT

(1.) This is an appeal from a decree passed by the Subordinate Judge of Murshidabad, setting aside a putni sale. The plaintiff held the mehal which formed the subject matter of the suit, eight annas in patni right and the other eight annas in durpatni right, the patnidars in respect of the latter share being the pro forma defendants 5 to 7. The principal defendant, the Raja of Nashi pur, is the zamindar. The patni was originally created in 1854. The plaintiff and the pro forma defendants 5 to 7 acquired it in 1902 and executed the usual security bond in respect of it and got their names recorded in the zamindar's sherista on payment of nazar. It comprises lands of three touzis, namely, Nos. 434 and 523 of the District of Murshidabad, and No. 1152 of the District of Birbhum. It goes by the name of Mehal Sail Mail and bears an annual jama of Rs. 12,350. For arrears of rent for the first half year of 1331 B.S. the defendant, the Raja, on 1 Kartick of that year, applied for sale of the patni mehal under Regulation 8 of 1819. The plaintiff objected to the proposed sale on the ground that the Regulation did not apply inasmuch as the mehal was comprised within more touzis than one. The Collector upheld the objection and rejected the application for sale. On appeal by the defendant the Commissioner affirmed the Collector's order on 13 May 1925. In the meantime the rent for the next half year having fallen in arrears the defendant on 1 Baisak 1332(=15 April 1925) made another application for the sale of the mehal under the said regulation for the entire amount of arrears of rent for 1331 B.S. The sale was fixed for 1 Jaistha 1332(=15 May 1925).

(2.) The plaintiff put in an objection on the ground already mentioned as also on other grounds, and in support thereof filed certified copies of the order of the Collector and of the Commissioner in connexion with his objection in the previous application for sale, to which reference has already been made. That objection was heard at 2 p.m. on the said 15 May 1925, the date fixed for the sale, by the then Collector Mr. W.S. Adie, who for reasons to which it is not necessary to refer, disagreed with the view taken by his predecessor and did not feel bound by the decision of the Commissioner and verbally rejected the plaintiff's objection. What happened next is a matter of controversy between the parties, and of it two versions have been given. (Versions of both parties were then stated and the judgment proceeded.) The accounts of the events set forth above have been taken from the pleadings of the parties and they represent only the bare outlines of the two stories in the main features which were developed in much fuller details in the evidence adduced, but with variations, here and there, which are not worth mentioning.

(3.) On 19 May 1925 the defendant put in the balance of the purchase money, that is to say, Rs. 13,600, and the Collector thereupon confirmed the sale on the 20th. The plaintiff then appealed to the Commissioner, who held that the sale was illegal and invalid and ordered the sale certificate issued by the Collector to be cancelled. The sale certificate was accordingly cancelled on 24 August 1925. The defendant thereupon moved the Board of Revenue who, on 8 February 1926, expressed the view that the sale was illegal, but that neither the Commissioner nor the Board of Revenue had jurisdiction to set it aside, and the plaintiff would have to seek his remedy if he so desired in the civil Court. The plaintiff accordingly instituted the present suit on 13 February 1926. The Subordinate Judge has decreed the suit and set the sale aside. From this decision the defendant has appealed. The validity of the sale was challenged on behalf of the plaintiffs on various grounds on some of which the Subordinate Judge held in plaintiff's favour and on the others in favour of the defendant. Connected with the appeal therefore there has been a cross-objection preferred on behalf of the plaintiff as respondent in the appeal.