KARU SINGH Vs. NATHUNI LAL

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiffs-appellants for having it declared that the sale of village Andauli bearing tauzi No. 6074 on the Revenue Koll of the Collector of Monghyr, at an auction held on the 3 June 1940, for arrears of revenue of March kisht of the year, the last date of payment for the kisht being 28 March of that year, was null and void. The defendant 1 party, who is the main contesting respondent here is the auction-purchaser. The defendants 2nd party are mortgagees of the 4 as share of this tauzi, which is exclusive of the plaintiffs interest of 12 as in the estate. The defendants 3 party are the co-sharers, having 4 as. interest in the estate. The present appeal is confined to the interest of the plaintiffs only, namely, 12 as of the tauzi. The defendants 3 party had brought another suit for the same relief against the very same sale in the same Court. Both the suits were dismissed, and it is only the plaintiffs of one suit who own 12 as. in the tauzi that have come up in appeal.

(2.) They challenged the sale, mainly on two grounds. The first ground was that the estate was not in arrear on or subsequent to 28 March 1940, and, therefore, it was sold contrary to the provisions of Act XI (11) of 1859. It was, therefore, contended that it was ultra vires of the Collector to sell the estate. The second ground was that the auction purchasers, namely, the defendants 1 party are mere farzidars of the co-sharers defendants and their mortgagees, namely, defendants 2nd and 3 parties, who colluded to default in payment of revenue, then got all processes relating to the sale fraudulently suppressed in order to bring about the sale and purchase. No notices under Secs.6 and 7 of the Act were served, and thus there was irregularity in the sale. As a consequence property which is really worth Rs. 8,000 was sold for a sum of Rs. 225 only.

(3.) The suit was resisted by the defendant 1 party, the auction-purchaser, on both the counts. It was pleaded that the estate was in fact in arrear, the payment up to the 28 of March, 1940, being short by Rs. 8-4-0, and that there was no collusion; or fraud practised in conduct of the sale, the notices referred to in the plaint were duly served, and the sale was held in accordance with law.