MANINDRA NATH SEN Vs. KHUDIRAM DAS

JUDGEMENT

(1.) This appeal is pressed upon two grounds. The first ground is to the effect that the revenue sale to set aside which the plaintiff instituted the present suit was bad, because notices under Sub-section 6 and 7 of the Revenue Sale Law were defective in certain particulars. For disposing of this ground it would be sufficient to say that this was not a ground declared or specified in the appeal which the plaintiff had made to the commissioner. The memorandum of appeal filed by the plaintiff before the commissioner and the judgment of the commissioner in that appeal have been placed before us. We find that amongst other points taken, all that was said with reference to the procedure adopted for the sale was that the notices had not been properly served, but there was no point taken that notices were in any way defective. The wording of Section 33 of the Revenue Sale Law is very particular; and as worded, that section requires that the grounds should be declared and specified. There can be no question that, apart from anything else, omission to take the ground in a definite form and with sufficient particularity before the commissioner is a bar to the ground being put forward as a ground in a suit to set aside the sale.

(2.) The other ground on which the appeal has been pressed before us is in substance this: that the revenue for arrears of which the sale took place was due for the March kist of 1927 and it became an arrear on 1 April 1927 and that therefore the latest day for its payment would be 12 January 1928 and that inasmuch as the sale was held on 23 September 1927, it was a sale held without jurisdiction. It should be pointed out that in the trial Court no ground of this description was put forward and although there was an objection to the effect that the plaintiff believed that no arrears were really due and so the collector had no jurisdiction to sell the property that ground was practically abandoned at the trial, because the plaintiff at the trial admitted that the revenue due for March kist 1927 was really in arrears. In the memorandum of appeal filed before the Subordinate Judge from the decision of the trial Court the ground now taken before us was not taken. But at the hearing of the appeal before him it was put forward. The learned Judge held that the kistbandi not having been produced and no materials having been placed before him for the purpose of showing that the March kist of 1927 was a kist according to the kistbandi and not an instalment payable by the last date of payment as fixed by the Board of Revenue, it was not possible to hold that the contention was well founded. We think the decision of the learned Subordinate Judge on this point was correct.

(3.) In the appeal before M.C. Ghose, J., the matter was sought to be re-opened by the present appellant, as respondent therein, but the learned Judge declined to interfere with the finding of the Subordinate Judge on the ground that the question was a question of fact, and the conclusion which the Subordinate Judge had arrived at on the materials before him on that question could not be interfered with. We have heard Mr. Dutt on this question and we are in entire agreement with the view that the learned Subordinate Judge had aken, namely that in the absence of any materials which would indicate that the revenue due for the March kist of 1927 was really an amount due according to the March kist, if there was any such kist in the kabuliyat and was not an amount due for which the last date of payment according to the date fixed by the Board of Revenue was some date in March 1927, it is not possible to say that the sale that took place on 27 September 1927 was held without jurisdiction. The appeal in our opinion fails and must be dismissed with costs. Ghose, J.