CHOUDHURY MOHAMMAD MANJURAL HAQUE Vs. SHEBAIT OF SRI SRI ISWAR LAKSHMI NARAYAN JEW THAKUR, SRI SRI ISWARI SARADIA DURGA DEBI THAKURANI AND SRI SRI ISWARI JAGADHATRI DEBI THAKURANI, BISSESWAR BANERJEE

JUDGEMENT

(1.) This judgment is being delivered under peculiar circumstances which have been fully explained in our order dated 29 July 1943 on a petition for review of judgment presented by the plaintiff-respondent. We shall recapitulate them briefly here: This appeal was heard by us at great length in January last, a number of questions of law and fact being involved. The case was then set down for judgment on 29 January 1943 [See ( 43) 30 A. I. B. 1943 Cal. 361-- Ed.]. At the last moment however the parties informed us that they had arrived at a compromise. A petition embodying the terms was put before us and as some of the appellants were minors their guardian, who was also one of the appellants, asked for leave to enter into the compromise on their behalf, submitting that the terms were for their benefit. It may be mentioned that under these terms the appellants were to be given half of the property in suit whereas if the appeal were pressed there was danger of their losing the whole. In these circumstances we, the Court, also considered the terms to be for the benefit of the minors and accordingly granted the leave sought. The result was that while we delivered judgment disposing of all but one of the issues raised in the appeal, we merely mentioned the remaining issue without deciding it, and we made a consent decree in accordance with the terms of the compromise. There the matter rested for some months. Then, suddenly all the appellants but one including the guardian appellant brought a suit on the Original Side of this Court repudiating the compromise and asking that it be set aside. In the verified plaint they stated that they had not been informed of its terms, that they had not authorised them, that they were not for the benefit of the minors and so on. When these allegations were brought to our notice, we examined the record of the appeal and found that we had been misled by an affidavit into believing that the compromise had the authority of the guardian as well as of the other appellants. In the light of the statements in the abovementioned plaint, we had no option but to set aside the so-called consent decree, recall the judgment and remit the parties to the position which they occupied just before judgment had been delivered. We then heard the parties again on the issue left undisposed of in our judgment of 29 January 1943, and set down the case for final judgment. The subsequent events arising out of an application under Order 23, Rule 3, have been dealt with in a separate order of today and need not be repeated. We are now delivering our final judgment in the appeal.

(2.) This appeal is by the defendants in a suit for a declaration that a certain order made by the Board of Revenue, Bengal, on 13 September 1937 was ultra vires and void. The facts are briefly these: The revenue paying estate bearing touzi No. 655 of the Birbhum Collectorate comprises four separate accounts, viz., Nos. 1, 2 and 3 and the "ejmali" or residuary account. We are concerned in this case mainly with separate account No. 2 comprising 6 annas odd of the estate. The annual revenue payable in respect of this separate account is Rs. 1491-9-4 in four kists of instalments, namely, Rs. 21-12-2 in respect of the quarter 29 March to 28th June, for which the latest date of payment is 28 June (1 or June kist); Rs. 89-13-3 in respect of the quarter 29 June to 28 September, for which the latest date of payment is 28 September (2nd or September kist); Rs. 624-6-7 in respect of the quarter 29th September to 12 January, for which the latest date of payment is 12 January (3 or January kist); and Rs. 755-9-4 in respect of the quarter 13 January to 28 March, for which the latest date of payment is 28 March (4 or March kist).

(3.) We are mainly concerned here with the second kist of the year 1936-37 amounting to Rs. 89-13-3 for which the latest date of payment was 28 September 1936. There are nine cosharers in this separate account who are defendants 1 to 9 in this suit. By a private apportionment amongst themselves defendants 1 and 2 appear to have arranged to pay 4/5ths of the revenue and defendants 4 to 9 the remaining 1/5th. Accordingly defendants 1 and 2 paid their share of the September kist amounting to Rs. 71-12-6. There was also an excess payment of Rupees 1-12-4 made towards the first kist and carried forward to the second. This left Rs. 16-4-5 to be paid by defendants 4 to 9 before 28 September. But there was sent on their behalf a money order of only Rs. 3-14-3 on account of land revenue on 22nd September, so that there resulted an arrear of Rs. 12-6-2. For the realisation of this arrear the separate account was put up to sale under Section 13, Bengal Land Revenue Sales Act, 1859 (Act 11 of 1859) on 8 January 1937. As no bids were forthcoming, the Collector, proceeding under Section 14, stopped the sale and declared that the entire estate would be sold for arrears of revenue at a future date, unless the other recorded sharer or sharers should within ten days purchase the share in arrear by paying to Government the whole arrear due from the share. On 11 January 1937, the plaintiff who was a co-sharer in the zemindary (in the residuary account) asked the Collector for permission to purchase the aforesaid separate account No. 2 by paying the arrear due therefrom. This was allowed and accordingly on 14th January 1937 his agent paid in Rs. 12-6-2. On 19 January 1937, the Collector declared him the purchaser of the defaulting share. No appeal having been preferred against the sale within the prescribed 60 days, it was confirmed, and on 6 April 1937 a sale certificate was issued to the plaintiff under Section 28 of the Act. On 7 April 1937, the Collector ordered delivery of possession to him under Section 29. This last order has not yet, however, been carried out, because before it could be carried out, the defendants preferred an appeal to the Commissioner on 1 May 1937 praying that the sale be set aside. The appeal was out of time, and as the appellants were unable to prove that they were entitled to any extension of time on the ground of fraud, the appeal was rejected on 11 May 1937. On 25 May 1937 they presented a petition to the Board of Revenue against the Commissioner's order. The Board called for the records and a report from the Commissioner, and on 13 September 1937 after perusing both set aside the sale. It is against this order of the Board that the present suit is mainly directed. The Board's order, so far as it is material, was in the following terms: On the merits of the ease the Board has no doubt that there was hardship which would have justified the Commissioner in recommending the Board to set aside the sale. The separate account was put up for sale on 8 January 1937 for arrears of Rs. 12-6-2 due for the September kist, On 14 January 1937 it was sold to a cosharer under Section 14. On the same day (i.e. 22 September, 1936) that Rs. 3-14-3 was sent as revenue by money order instead of the proper amount of the September kist, viz., Rs. 16-0-9, Rs. 15-7-0 was paid as case. On 8 January 1937, the defaulting proprietors who are now the petitioners paid Rs. 711-1-7 for the January kist and again in March they paid Rs. 842 for the March kist. It is, therefore, obvious that they did not know of the default until March. The Commissioner did not make the recommendation to the Board under Section 26, because the application to set aside the sale under Section 25 was filed more than 60 days after the sale. It is not certain that the Commissioner had power to extend the time for an appeal under Section 25, though according to Note 12, p. 57 of the Sale Manual, 1932, he could do so where fraud is proved. If he can do so in case of fraud he ought to be able to do so in case of manifest hardship. This seems to the Board to be a case where the same consideration, that moved the Board in its Resolution No. 1851--sales of 8 May 1918 (p. 122 of the Sale Manual) to remand the case to the Commissioner, can be applied. It has always been the declared policy of Government to administer the sale law leniently, and the Board holds that all final Courts including revenue Courts have an inherent power to make such orders as may be necessary for the sake of justice. Under Section 4, Regn. 1 of 1829, the Board of Revenue has a power to control over the proceedings of Commissioners. There is always a stronger case for exercising this power when the order has been to confirm a sale than when the order has been one setting aside a sale. The Board therefore overrules the objections of the auction-purchaser which are based not on the merits of the case but on absence of jurisdiction because the order of a Commissioner under Section 25 is final. The sale is set aside.