LAL BEHARY MAITY Vs. RAJENDRA NATH MAITY

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of a suit for recovery of possession of their 6-annas she in Touzi No. 1666 of the Midnapur Collectorate after setting aside the revenue sale of the said touzi held on the 10 January 1921 or in the alternative for a direction upon the defendants to reconvey the plaintiffs share in the touzi to them. The learned Subordinate Judge in the Trial Court being of opinion that there were no arrears and that there was no publication of the notice under Sec. 6 of the Revenue Sales Act (XI of 1859) which omission rendered the sale ipso facto void passed a decree in favour of the plaintiffs setting aside the sale as null and void and allowing the plaintiffs to recover possession of their 6-annas share in the mehal. On appeal the learned District Judge of Midnapur held that the decree of the Trial Court was apparently wrong in setting aside the entire sale when the other proprietors of the touzi did not object to it. The only decree in his opinion that could have been passed was for an order upon defendant No. 1 (purchaser) to reconvey the property to the plaintiffs. The learned Judge further held that there was service of a notice which might be taken to be one under Section 6 of the Act; but if there was no service of a separate notification under Section 6, it amounted only to an irregularity and that as the plaintiffs failed to prove substantial injury the sale was not liable to be set aside under Section 33 of the Act. In this view the learned Judge dismissed the plaintiffs suit.

(2.) The plaintiffs have appealed and on their behalf it is urged in the first place that the sale was bad in law as no notification under Section 6 of the Revenue Sales Act was served and as this amounted to an illegality the sale should be held to be invalid. In the second place it is contended that on proper calculation it should have been found that there were no arrears; and that the Courts below were wrong in considering the amount claimed for cess as part of the revenue recoverable under Act XI of 1859. Rs. 107-11-9 and cesses of Rs. 2-12-0 payable in four quarterly instalments. It is found that the amount due for March a June, kists of 1920 was short by Rs. 5-7-9. According to the notification made by the Board of Revenue under Section 3 of the Act the March kist was to have been paid on or before the 28 March and the June kist on or before the 28 June. Under Section 2 of the Act these kists, if unpaid, were arrears on the 1 May and 1 August. On the 9 August 1920 the Collector directed the issue of notice under Section 5 of the Act, which was served in September 1920. as there were some attachments on the mehal. This notice was in the following form:--- "Notice is hereby given under Secs.5 and 13 of Act XI of 1859 that unless the arrears of revenue mentioned below are paid on or before the next latest date of payment, viz., the 28 August 1920, the under-mentioned estates or share of the estate in the District of Midnapur will be put up for sale at the office of the Collector of that District on the 10 January 1921 at noon for the said arrears." On the 17 November 1920 the Collector ordered that the mehal should be advertised for sale. The sale was held on the 10 January 1921 and the mehal was purchased by defendant No. 1 for Rs. 2,100. Before the sale, on the 25 and 29 September 1920 the plaintiff remitted the sum of Rs. 5-1-0 to the Collector by two money-orders with the direction that the amount should be credited towards the September kist.

(3.) It appears that there was only one notice served purporting to be under Secs.5 and 13, referred to above. The learned District Judge is of opinion that the notice was in the form of the notice prescribed by the Board of Revenue and in fact it amounted to a combined notice under Secs.5 and 6 of the Act. I must express my regret that the form should have been adopted for the purpose of necessary notifications under the Act. The notice under Section 5 is to be issued for the arrears of the description mentioned in that section. That section says that such notice shall specify the nature and amount of the arrear so demanded and the latest date on which the payment thereof shall be received and shall be served not less than 15 clear days preceding the date fixed for payment according to Section 3 of the Act. According to Section 3 of the Act, the Board of Revenue has fixed the dates of payment of the kists which in the present case were the 28 March and the 28 June. The notice under Section 5 should have issued 15 clear days before those dates. The notification under Section 6 is to be issued after the latest date of payment fixed in the manner prescribed in Section 3 of the Act.