BILAS CHANDRA ROY Vs. RAJENDRA CHANDRA DAS ROY

JUDGEMENT

(1.) The plaintiff Bilas Chandra Roy who is the appellant before us was the owner of an entire estate bearing Touzi No. 9299 in the Dacca Collectorate, The revenue of the estate is Rs. 88- 1-1 payable in three instalments and the amounts and the latest days of payments, fixed under Section 3 of Bengal Land Revenue Sales Act XI of 1859, of these instalments are Rs. 60-4-0 on the 12 January, Rs. 16-9-1 on the 28 March. Rs. 1140 on the 28ih June. On the 26 June 1919 the plaintiff himself paid Rs. 11-4-0 at the Dacca Post Office with a revenue money order form duly filled in according to the rules contained in the Bengal Touzi Manual 1918 on account of the revenue payable on the 28 June. On the 6 July the plaintiff received Exhibit 12 the acknowledgment portion of the money order which, instead of being a receipt for the payment of revenue, contained an intimation endorsed in red ink in the following terms "Received after expiry of due date. The amount is kept in revenue deposit. The Mahal should be released by filing an application otherwise it will be sold at auction sale." This endorsement is dated the 2nd July. The 29 and 30 June and 1 July were holidays. Within two or three days of receiving this acknowledgment at Munshiganj, where the plaintiff was a practising pleader, he wrote to Rasik Chandra Gangopadhaya Defendant No. 2 who is his Ammukhtear requesting him to file an application for converting the revenue deposit to revenue in respect of Touzi No. 9299. Rasik did not answer this letter until 13 September when he wrote the postcard Exhibit 14 which reached the plaintiff a day or two later. During this interval on or about the 23 August a young son of the plaintiff died suddenly. Also before this postcard was written the plaintiff's estate had been advertised for sale for arrears of revenue, the sale date being fixed for the 22nd September. In this postcard the defendant Rasik, after explaining his delay in writing on account of his not getting a copy wanted for some other matter, wrote. "For Mahal Nos. 9299 and 221 two petitions and two Agentnama...will be necessary. Also the receipt for the deposit of money and something for extra expanses and for the Mukhtear and his clerk will be necessary." On the 15 September the plaintiff sent Rs. 2 by money order to Rasik. A day or two later the plaintiff sent his clerk Satis Chandra Choudhuri (P.W. No. 6) to Rasik at Dacca with an Agentnama and three blank demi papers signed by the plaintiff. No application was filed by the Defendant No. 2 in accordance with plaintiff's instructions, but on the 2! September, he sent the postcard Ext. 17 to the plaintiff. In this he informed him that the sale of Mahal No. 9299 for arrears of revenue was fixed for the next day and that in order to prevent the sale it would be necessary to pay a fine and also over Rs. 100/- for cesses in arrear. The plaintiff was therefore asked to send Rs. 125/- by Telegraghic money order at once. This postcard did not reach the plaintiff until the 24 September as he had left Munshiganj for his home in Maijpara on the 20th. On the 22 September, the plaintiff's estate was sold by auction at the revenue sale for an arrear of Rs. 7-1-8. There was Rs. 4-2-4 to the plaintiff's credit in the Collectorate accounts when the instalment of Rs. 11-8-0 was payable, and this explains why the arrear was this smaller amount. The estate was bought by Defendant No. 1, a pleader's clerk for Rs. 530. The value of the estate is over Rs. 5,000. On the 19 November 1919 the plaintiff appealed to the Commissioner of the Dacca Division to have the sale set aside under Section 2 of Act VII (B.C.) of 1868 and Section 26 of Act XI of 1859. This appeal was dismissed on the 29 May 1920 end the sale was confirmed on the 5 June following. On the 22 January, 1921 the plaintiff brought the present suit which was dismissed by the Subordinate Judge, 4 Court Dacca on the 23 February 1922 and he has appealed to this Court.

(2.) The above is a statement of the facts of the case which are either now undisputed or which if disputed we hold to have been established by the evidence on the record. Where there is a variance between the evidence of the plaintiff and the second defendant we have no hesitation in accepting the plaintiff's version. The lower Court has doubted his veracity on the ground that he has made discrepant statements as to whether he wrote his first letter to Defendant No. 2 two or three days after 6 July or a day or two before receiving Exhibit 14, this defendant's post card of the 13 September. We find no such discrepancy. The sentence "This post card letter I received a day or two after the writing of this letter" must mean that the plaintiff received it a day or two after it was written. This is the grammatical meaning of the sentence and the meaning given to it by the learned Subordinate Judge is inconsistent with the plaintiff's evidence that Exhibit 14 is a reply to his first letter. If it was a reply it could not have been received a day or two after the plaintiff wrote his letter. Also the contents of Exhibit 14 indicate that it was reply to a letter from the plaintiff received sometime previously. Exhibit 14 also shows from its reference to several matters that this defendant's denial that he was then acting as the plaintiff's Revenue Agent is false. The contents of the second post card Exhibit 17 are not what he would have written if, as he says in his evidence, he found Touzi No. 9,299 in the Bakiat list two days before he wrote the letter.

(3.) The plaintiff brought this suit to set aside this revenue sale. He also asked for a declaration that the sale certificate issued to Defendant No. 1 did not affect his title to certain specified Mouzas. In the alternative he asked for a decree directing a reconveyance of the estate. There were also prayers for recovery of possession and mesne profits. The ground on which he claimed these reliefs were that the sale was void as there were no arrears of revenue at the time of the sale, that the sale was the result of a fraudulent conspiracy between the two defendants, that the sale was bad on account of failure to serve the notices required by law and that the notices did not properly describe the estate. At the hearing of the appeal six points were argued: (1) That on the evidence it should be held that the plaintiff's money order reached the Collectorate before the time for payment expired; (2) That the payment to the post office of Rs. 11-4-0 by Revenue Money Order was a valid payment in time; (3) That a fraudulent conspiracy between the two defendants has been proved; (4) That notices required by law were not served at all; (5) That the 28 June was the date of payment of the June kist to which Section 2 of Act XI of 1859 is applicable and not the latest day of payment fixed under Section 3 of that Act; (6) That the sale certificate conveys no title to the property in suit.