DHARENDRA KRISHNA MUKHERJI Vs. NIHAR GANGULY

JUDGEMENT

(1.) These two appeals are against two decrees of the Subordinate Judge of Hooghly dismissing two suits instituted by the appellants in the First Court of the Subordinate Judge at Hooghly for the re-versal of sales of two Patni Taluks, viz., Lot Rampura and Lot Haripur in the district of Hooghly under the Bengal Patni Taluk Regulations of 1819. The material provisions of the Patni Regulations are these: Section 8. First - Zamindars, that is, proprietors under direct engagements with the Crown, shall be entitled to apply in the manner following for periodical sales, of any tenures upon which the right of gelling or bringing to sale for an arrear of rent may have been specially reserved by stipulation in the engagements interchanged on the creation of the tenure. Second - On the first day of Baisakh, that is, at the commencement of the following year from that of which the rent is due, the zamindar shall present a petition...to the Collector, containing a specification of any balances that may be due to him on account of the expired year, from all or any talukdars or other holders of an interest of the nature described in the preceding clause of this section. The same shall then be stuck up in some conspicuous part of the cutcherry with a notice that, if the amount claimed be not paid before the first of Jeth following the tenures of the defaulters will on that day be sold by public sale in liquidation. A similar notice shall be stuck up at the sadar cutcherry of the zamindar himself, and a copy or extract of such part of the notice as may apply to the individual case shall be by him sent to be similarly published at the cutcherry or at the principal town or village upon the land of the defaulter. The zamindar shall be exclusively answerable for the observance of the forms above prescribed, and the notice required to be sent into the mufassal shall be served by a single peon, who shall bring back the receipt of the defaulter, or of his manager, for the same, or, in the event of inability to procure this, the signatures of three substantial persons residing in the neighbourhood, in attestation of the notice having been brought and published on the spot. If it shall appear from the tenor of the receipt or attestation in question that the notice has been published at any time previous to the fifteenth of the month of Baisakh it shall be sufficient warrant for the sale to proceed upon the day appointed. In case the people of the village should object or refuse to sign their names in attestation, the peon shall go to the cutcherry of the nearest munsif, or if there should be no munsif, to the nearest thana, and there make voluntary oath of the same having been duly published; certificate to which effect shall be signed and sealed by the said officers and delivered to the peon. Section 10 - A person shall attend on the part of the zamindar, with a particular statement of the payments made up to the day of sale on account of the balance of each advertised lot, together with the receipt for, or certificate of, the notice directed to be published in the mufassal, nor shall any lot be put up to sale until the statement produced shall have been inspected, and the existence of a balance for the year ascertained therefrom, nor until the receipt for the notice shall have been read; the observance of which forms shall be recorded in a separate rubakari to be held upon each lot sold. Section 13. First - With reference to the injury that may be brought upon the holder of a taluk of the second degree by the operation of the preceding rules, in case the proprietor of the superior tenure purposely withholds the rent due from himself to the zamindar after having realised his own dues from the inferior tenantry, it is deemed necessary to allow such talukdars the means of saving their tenures from the ruin that must attend such a sale; and the following rules have accordingly been enacted for this purpose. Second - Whenever the tenure of a talukdar of the first degree may be advertised for sale in the manner required by Clauses (2) and (3) of Section 8 of this Regulation, for arrears of rent due to the zamindar, the talukdars of the second degree, or any number of them, shall be entitled to stay the final sale, by paying into Court the amount of balance that may be declared due by the person attending on the part of the zamindar on the day appointed for sale; in like a manner they shall be entitled to lodge money antecedently, for the purpose of eventually answering any demand that may remain due on the day fixed for the sale, and, should the amount lodged be sufficient, the sale shall not proceed, but, after making good to the zamindar the amount of his demand, any excess shall be paid baok to the person or persons who may have lodged it. Section 14. First - Should the balance claimed by a zemindar on account of the rent of any under-tenure remain unpaid upon the day fixed for the sale of the tenure, the sale shall be made without reserve, in the manner provided for in Secs.9 and 10 of this Regulation; nor shall it be stayed or postponed on any account, unless the amount of the demand be lodged. It shall, however, be competent to any party desirous of contesting the right of the. zemindar to make the sale, whether on the ground of there having been no balance due, or on any other ground, to sue the zemindar for the reversal of the same, and, upon establishing a sufficient plea, to obtain a decree with full costs and damages. Second. - In cases also in which a talukdar may contest the zamindar's demand of any arrear, as specified in the notice advertised, such talukdar shall be competent to apply for a summary investigation at any time within the period of notice; the zamindar shall then be called upon to furnish his kabuliyat and other proof at the shortest convenient notice, in order that the award may, if possible, be made before the day appointed for sale. Such award, if so made, will of course regulate the ulterior process; but, if the case be still pending, the lot shall be called up in its turn, notwithstanding the suit, and, if the zemindar or his agent in attendance insist on the demand, the sale shall be made on his responsibility, nor shall it be stayed or the summary suit be allowed to proceed, unless the amount claimed be lodged in cash, or in Government securities, or in currency notes, by the talukdar contesting the demand; and if such deposit be not made, the alleged defaulter will have no remedy but by a regular action for damages and for a reversal of the sale unless he makes an application under Section 14A.

(2.) The case of the appellants is that the sale of the two patnis is liable to be set aside on the following grounds: (1) that the petitions of the zamindar (respondents) under para. 1 of Clause (2) of Section 8 were not presented to the Collector of the district; (2) that the notices required to be served under paras. 2 and 3 of Clause (2) of Section 8 were essentially defective; (3) that the said notices were not published at the Kutehery of the appellants as required by para. 3 of Clause (2) of Section 8; (4) that the peon who served these notices did not bring back signatures of three substantial persons residing in the neighbourhood in attestation of the notices having been brought and published at the Kutehery of the appellants as required by para. 4 of Clause (2) of Section 8; (5) that the declaration of the peon that the notices were duly published under para. 6 of Clause (2) of Section 8 was not made immediately after the publication of the notices. The facts which have a material bearing on the first ground are these: The petitions of the zamindars under para, 1 of Clause (2) of Section 8 were addressed to the Collector of the Hooghly District. They were received by the Senior Deputy Collector of Hooghly on 17 April 19S9 = 3 Baisakh 1346 B.S. (1 and 2nd Baisakh being holidays). On that very day the Senior Deputy Collector asked the record keeper to report at once. On 2l April, the Collector of Hooghly issued a notice fixing 15 May 1989 = 1 Jaista 1346 B.S. for sale. On the last mentioned date the patnis were sold.

(3.) The argument of the appellants in support of the first ground is this : Presentation of the petitions to the Collector under para. 1 of Clause (2) of Section 8 means (1) filing of the petition by the zamindar and (2) receipt of the said petition by the Collector himself. Receipt of the petition is the first act of the Collector preparatory to or connected with the sale under the Patni Regulations, although some of the duties of the Collector of a district can be delegated to the Senior Deputy Collector under Section 8 of Regulation 4 of 1821 and Sections 20 and 21 of Regulation 8 of 1833. The duty of receiving petition presented for sale of patni tenures could not be delegated to the Senior Deputy Collector who is not a Collector within the meaning of section 1 of Bengal Act 8 of 1865. In these cases the petitions of the zamindar for sale were admittedly received not by the Collector himself but by the Senior Deputy Collector. Consequently, there was no valid presentation of the petition to the Collector within the meaning of para. 1 of Section 8 of the Patni Regulations. The patni sales in question are therefore liable to be set aside. Section 8 of the Patni Regulations as originally framed required the zamindar to present a petition "to the civil Court of the district and a similar one" to the Collector. Section 9 as originally framed contained a provision that the sale should be made by the Registrar or Acting Registrar of the civil Court or in his absence by the person in charge of the office of the Judge or Magistrate of the district within whose jurisdiction lands may be situated.