KUSUM KAMINI ROY Vs. APURBA KUMAR HAZRA

JUDGEMENT

(1.) This appeal arises out of a suit for setting aside the sale of Touzi No. 4977 of the Dacca Collectorate under the provisions of Act 11 of 1859. It appears that the arrears for which the estate was sold were for three years, 1928, 1929 and 1930. In the notice under Section 5 of the Act the arrears not only of the year 1928 but also of the year 1929 were included. Plaintiffs case is that this notice being contrary to the provisions of the Revenue Sale Law the sale was without jurisdiction and void. The trial Court did not give effect to this ground. Other grounds were also taken by the plaintiffs for setting aside the sale. The trial Court however found against the plaintiffs on the other grounds as well. The suit was accordingly dismissed by the trial Judge. On appeal by the plaintiffs to the lower appellate Court the learned Judge affirmed the decision of the trial Court. Hence this second appeal by the plaintiffs.

(2.) It is contended by Mr. Gupta appearing on behalf of the plaintiffs that in the notice which was issued in this case under Section 5, Revenue Sale Law, the Collector had no right to include the arrears of 1929 and consequently the notice is not a valid notice at all. Mr. Gupta also contends that under Section 5 the service of a valid notice is a condition precedent to the sale of the estate and as the notice in this case was bad in law the sale itself was without jurisdiction. I am unable to accept this contention. It is true that in the notice under Section 5 the arrears of 1929 should not have been included because that section only contemplates arrears other than those of the current year or of the year immediately preceding it. But if the arrears of the current year or of the preceding year are included along with the arrears which come within the purview of Section 5 that cannot invalidate the notice. It may be that if the Collector erroneously includes the arrears of the current year or of the year immediately preceding and fixes a certain time for payment of those amounts he may be precluded from selling the estate for arrears of the current year or of the year immediately preceding before the time fixed in the notice expires. But that does not necessarily mean that the notice is invalid. Further Section 33 lays down that no sale for arrears of revenue can be annulled by a civil Court except upon the ground of its having been made contrary to the provisions of this Act and then on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of. Two conditions are, therefore, necessary; the sales must have been held contrary to the provisions of the Act and it must be proved by the plaintiff that he has sustained substantial injury by reason of the irregularity which evidently includes illegalities as well. In the present case Mr. Gupta with his usual fairness conceded that there was no evidence to show that the plaintiff has sustained any substantial injury by reason of the inclusion of the arrears of 1929 in the notice under Section 5. This is the only point urged by Mr. Gupta in this appeal and as this point fails the appeal is dismissed with costs. Henderson, J.

(3.) I agree.