GANGA BISHUN SINGH Vs. MAHOMED JAN

JUDGEMENT

(1.) This is an appeal from the judgment of the Subordinate Judge of Chapra dated, the 16th of August 1904 decreeing the plaintiff's suit for annulment of a sale held by the Collector for arrears of Government revenue under the provisions of Act XI of 1859 The defendant No. 1, who was the auction-purchaser, and certain other persons, who hold under him and were also made defendants in the suit, are the appellants before us. The facts of the case are undisputed and are thus stated in the judgment of the Lower Court: "There is a revenue- paying estate Khawaspur Tawzi No. 1692. The plaintiff was the proprietor of an ijmali kalam of 3 annas odd in the estate. The annual sadar jamma was Rs. 213-2 as. The arrears up to June 1901 were Rs. 1,438-13 annas 9 pies. On the 16 September 1901 the property was put up to sale, but there were no bidders. The Collector then proceeded under Section 14 of the sale law and on the 17 September the plaintiff paid off all the arrears; two months after, that is, on the 16 November 1901, the plaintiff was declared to be the purchaser of the ijmali share, Against this order there was no appeal and on the 8 February 1902 the sale was confirmed. "But arrears bad again accumulated from September 1901 and the arrears of September kist of 1001 a January, kist 1902 became due and the Collector again sold the properly for the January kist of 1902. The sale took place on the 26 of March 1902 and the defendant No .1 became the purchaser. " On the 11 March 1902 the plaintiff moved the Collector for the payment of the money and on the 18 March the Collector ordered that the money due may be paid by the 2oth March. " The plaintiff complains that he became aware of this order on the 22nd March, that the Revenue Courts were closed on the 25 and the money could net therefore be paid. The sale was held on the 26 March. The plaintiff says that he vorbally offered the arraigns to the Collector on the 26 March, but the Collector did not accept the money. "The plaintiff appealed to the Commissioner; the appeal was rejected on the 25 August, 1902 and hence this suit. " The defendants contend that the sale was perfectly valid.

(2.) The learned Subordinate Judge ordered the sale to be annulled on three grounds. He hold firstly that "the sale having been made without jurisdiction was no sale and is therefore null and void," secondly that a notice under Section 5 was imperative, and the omission in this direction was an irregularity, " and, thirdly, that "the property was undersold," that is sold for an inadequate price.

(3.) As regards the first ground, namely want of jurisdiction, the learned Sub radiant Judge has held that the plaintiff was bound under the terms of Section 30 to pay the arrears of the September and the January kids, but that, inasmuch as the plaintiff did not get "his sale certificate, which should have been given to him under Section 28 immediately after the sale became fital, unt 1 the 14 of March 1902 the plaintiff was not bound to pay the arrears before (he next kisl day, that is the 28 of March 1902 The Collector had therefore no jurisdiction to sell before that date. The sale notification was therefore invalid on the face of it." Again "he (the plaintiff) was therefore bound to pay all the arrears that had acerued. within the next kist, that is within 28 of March 1902, and in default the property could then be sold."