BADRI NARAIN SAHU Vs. BENI MADHO PRASAD

JUDGEMENT

(1.) This is an appeal by some of the defendants first party in a suit to set aside a revenue sale. The property in question is Tauzi No. 3308/16, that is to say, separate Account No. 16 of Tauzi No. 8308, of the Saran Collectorate. This separate account belonged, as to eight annas share, to the plaintiffs, and as to the remaining eight annas, to defendant 2, called the defendant second party. The defendant second party having defaulted in payment of his share of the revenue, the separate account was sold under Act 11 of 1859 on 2l March, 1938, and it was purchased by original defendant 1, since deceased, for Rs. 2225. There was an appeal by the plaintiffs to the Divisional Commissioner which was dismissed. Thereupon, the sale was confirmed and the sale certificate was granted to the auction-purchaser on 23 November 1938. The present suit was brought on 22nd August 1939 under the provisions of Section 33 of Act 11 of 1859. The sale was impeached substantially on the ground that the notices under Secs.5, 6 and 7 of Act 11 of 1859 were not proclaimed or served in the manner required by law, and that in consequence of the material irregularities in publishing and conducting the sale, the property yielding an annual gross income of more than Rs. 3000 was sold for Rs. 2225 only.

(2.) After the institution of the suit original defendant l died and he was substituted by four persons who were made defendants 1, l(a), 1(b) and 1(c), called defendants first party. The suit was contested by defendants 1(b) and l(c) on the ground that the notices required by Act 11 of 1859 were duly served and the disputed property which was heavily encumbered was sold for an adequate price, and that, therefore, the plaintiffs did not sustain substantial injury. The learned Subordinate Judge who tried the suit held that the notices under Section 5 that were required to be served at the kutchery of the proprietor of the estate or at some conspicuous place upon the estate and also at the police station were not served. He also held that the service of notice under Section 7 was not properly proved. Thus he held that the sale was held contrary to the provisions of the Act. He further held that the property was sold for an inadequate price. He accordingly decreed the suit. Hence this appeal by defendants l(b) and 1(c).

(3.) The first point raised by Mr. S. N. Dutta for the appellants is that the sale being impeached only on the ground of non-service of notices under Secs.5, 6 and 7 of Act 11 of 1859, the suit is barred under the provisions of Section 8 of Act 7 of 1868(B.c). This point was not taken in the Court below, but as it is a pure question of law, it can be raised in appeal. Section 8 of Act 7 of 1868 runs as follows: Every certificate of title which may be given to any purchaser under the provisions of Section 28 of the said Act 11 of 1859, or of Section 11 of this Act shall be conclusive evidence, in favour of such purchaser and of every person claiming under him, that all notices in or by this Act, or by the said Act 11 of 1859, required to be served or posted have been duly served and posted: And the title of any person who may have obtained any such certificate shall not be impeached or affected by reason of any omission, informality, or irregularity as regards the serving or posting of any notice in the proceedings under which the sale was had at which such person may have pur chased.