SIBA DAS CHAKRAVARTY Vs. HEMCHANDRA KAR

JUDGEMENT

(1.) These two appeals have arisen out of two suits instituted by the plaintiffs-respondents in this Court, for declaration that a revenue sale held on 21 June 1926 is null and void against the plaintiffs in the suit and for issue of permanent injunction restraining the defendants in the suit, appellants in this Court, for taking possession of the shares of the plaintiffs in the estate that was sold for arrears of revenue. In one of the suits which has given rise to one of the appeals the plaintiffs prayed for recovery of possession of their share by evicting the defendants. The sale for arrears of revenue which was sought to be annulled was in respect of a residuary share of Tauzi No. 395 of the Bankura Collectorate. The residuary estate sold for arrears of revenue consisted of the shares of the plaintiffs in the two suits giving rise to these appeals, of defendants 1 and 2, of one Kulada Chatterji and Harihor Das and others, in Mauzas Chaukan or Chaugan, Patpur, Hatbari, Tapoban, Bakinala, Sankaria and Tejpal, which formerly represented the separate accounts 1,4, 6, 11 and 20 only of Tauzi No. 395 of the Bankura Collectorate.

(2.) The grounds on which the plaintiffs prayed for annulment of the sale were; (1) that the notices to be served under Act 11 of 1859 were not served; (2) that the notices were fraudulently suppressed without allowing the proprietors of the mahal and the general public to have any information of the sale; (3) that the sale was held at 9 a. m. in contravention of the advertisement published in the local newspaper Bankura Darpan that the sale would be held at 12 noon, which the Collector bad no right to do; (4) that the sale was not valid as it was not advertised in the Calcutta Gazette; (5) that as separate account was opened in respect of the plaintiffs share it could not be sold at the sale of the residuary estate; (6) that the Collector had no right to close the plaintiffs separate account; (7) that no proper specification of the description of the property to be sold was made as required by Secs.5 and 6, Revenue Sales Law (Act 11 of 1859), and there was therefore absence of bona fide bidders for the property; (8) that as the sale notification did not specify that the plaintiffs right would be sold the sale could not pass the plaintiffs right. In connexion with the last two grounds and in connexion with the irregularities specified in the plaint it was asserted that as a result of the irregularities the property was sold at a nominal price of Rs. 200, whereas the value of the property sold was not less than Rs. 20,000. In addition to these grounds it was set out in the plaint that the purchase made at the sale for arrears of revenue was a purchase made by defendant 2 in the name of his wife, defendant 3. The purchase was, according to the plaintiffs in the suit, a benami one and the sale at which the purchase was made by defendant 2 in the name of his wife was brought about by fraud on the part of defendants 1 and 2. The last ground that was mentioned in the plaint and on which the claim for annulment of the revenue sale was based, was that there were no arrears due on the property sold so far as the plaintiffs share was concerned.

(3.) A number of issues were raised on the pleadings of the parties-the contesting defendants in the suit having controverted the case set out in the plaint. The material issues raised for determination were these: "Has there been any irregularity in the revenue sale, and have the plaintiffs suffered any substantial injury by reason thereof? Were there any arrears due in respect of the plaintiffs share in the property sold?" In addition to the issues which were more or less of a technical character, mention may be made of another issue raised for determination in the case, namely, issue 11 which was as follows: "Were the plaintiffs original separate accounts 395-6 and 395-11 legally closed, and were those accounts included in the residuary share which was sold at the revenue sale? Was that residuary share excluded from sale in the sale notification?" It may be mentioned that the case made by the plaintiffs in the plaint with reference to the 6 ground specified above on which the annulment of the revenue sale was prayed for, was negatived by the decision arrived at by the trial Court, and that a decree in favour of the plaintiffs was passed by the learned Judge in the Court below on the ground that it had been satisfactorily established in the suits that there was material irregularity in effecting the sale and that the specification was wholly wrong, the sale was also void as there were really no arrears due upon the residuary share sold, and that the purchase by defendant 3 was a benami affair. Defendants 1 and 2 were deliberate defaulters and they had, in fact, purchased at the revenue sale by using sharp practice, and the plaintiffs have suffered very great loss due to irregularities in regard to the notification of the sale. The sale was, accordingly, declared null and void against the plaintiffs, and reliefs were given to the plaintiffs in accordance with the prayers made in the plaints filed in the suits out of which these appeals have arisen. The defendants who contested the plaintiffs claim before the Court below have appealed to this Court.