SECY OF STATE Vs. RAMNATH BHATTA

JUDGEMENT

(1.) This is an appeal by the defendant, the Secretary of State for India in Council, in a suit in which the plaintiff, Ramnath Bhatta, claimed damages for a wrongful act of the Collector of Chittagong. The facts, on which there is no dispute, are that one Faizali was the recorded proprietor of a certain revenue paying taluk. The plaintiff purchased the taluk on 14 May 1919 in execution of his mortgage decree. Two years later, on 16 June 1921, he applied for registration of his name in place of Faizali. The Land Registration Officer decreed his case on 19 September 1921. The decree was drawn up in January 1922, and the plaintiff's name was substituted in place of Faizali in the register on or about 16 February 1922. But before that date namely on 22 November, 1921, the taluk was duly sold by the Collector for arrears of revenue under the Bengal Land Reveune Sales Act of 1859. After paying all Government arrears there remained a sum of Rs. 1,504 odd the surplus sale proceeds which Under Section 31, Act 11 of 1859 was to be held by the Collector in deposit on account of the late recorded proprietor or proprietors and to be paid to them according to their recorded interest in the taluk sold. The plaintiff on 22 January, 1922 applied to the Collector that the surplus sale proceeds might be paid to him. His application was registered and on 15 March an order was passed that the money be paid to him. But a third person, Siddiq Ahmed, instituted a suit in the civil Court and the Court sent a request to the Collector not to pay the money to the plaintiff until the matter was decided by the civil Court. Thereafter on 22 March, Faizali who was the recorded proprietor on the data of the sale applied that the money might be paid to him.

(2.) It does not appear that the rival claims of Faizali and the plaintiff and Siddiq Ahmed were duly considered by the Collector or the Deputy Collector but that on 22 March, an order was made that the surplus sale proceeds be paid to Faizali and on 23 March accordingly the money was paid to Faizali. Thereafter the plaintiff instituted the present suit claiming that he was justly entitled to the surplus sale proceeds and the Collector in paying the same to Faizali has unjustly deprived him of his dues and he claimed the sum of Rs. 1,504 odd from the Secretary of State for India in Council. The defence taken was twofold: in the first place that the Collector was right in paying the money to Faizali who was recorded proprietor on the date of the sale, and secondly that in any case the plaintiff had no cause of action against the defendant. Both the Courts below have decided on the facts that the Collector committed an error in paying the money to Faizali and that it was justly due to the plaintiff and thus decided issue I in favour of the plaintiff. As to issue 2, that in any case the defendant was not liable the learned Munsif held that the Collector was in the position of a trustee for the plaintiff in respect of the surplus sale proceeds and that the Collector in full possession of the facts paid out the money to the wrong man through the fault of the office in not bringing the plaintiff's claim if not also the prohibitory order of the civil Court to his notice. He therefore held that the liability of the defendant was undoubted. The learned Subordinate Judge did not record his opinion on the issue at all holding it apparently as an axiom that when the Collector committed an error the Secretary of State for India in Council must be held liable.

(3.) In appeal it is urged by the learned Assistant Government Pleader that assuming the facts, namely that the Collector committed an error in paying the money to Faizali the Secretary of State for India in Council is not liable to make good the loss to the plaintiff in the circumstances of this case. It is to be observed that the order of payment was not made by the gentleman who was acting as the Collector of the District at the time. The order was made by a Deputy Collector. It also appears that the Deputy Collector's attention was not drawn at the moment when he signed the order of payment to Faizali, that a previous order of payment to the plaintiff remained uncancelled, and that the civil Court's request for postponement also remained without consideration. There was thus an error or delinquency on the part of the clerical staff who apparently did not bring the proper facts to the notice of the Deputy Collector and the Deputy Collector committed an error in ordering payment of the surplus sale proceeds to Faizali. The question then is whether on these facts the Secretary of State for India in Council is liable to make good the loss to the plaintiff.