BAIJNATH RAM GOENKA Vs. NAND KUMAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit brought (i) to obtain a declaration that an order by the Commissioner of Bhagalpur, dated the 21 June 1900, reviewing and setting aside an order of his of the 23 March, 1900, by which he had set aside a sale for arrears of Government revenue, was illegal and ultra vires, and to recover possession and mesne profits of the mehal, and (ii) in the alternative to set aside the sale on the ground of irregularity in the service of processes and of inadequacy of price resulting therefrom.

(2.) The facts are that the plaintiff's mehal was sold by the Collector of Monghyr on the 2nd January, 1900 for arrears of revenue. Appeals were afterwards preferred to the Commissioner both by the plaintiff and by certain co-sharers of his. The minor plaintiff's appeal was dismissed on the ground that he had not made the auction-purchaser a party. The appeal of the other co-sharers was successful and the sale was set aside on the 23 March, 1900. On the 21 June, 1900, the Commissioner reviewed his order cancelling the sale, set it aside and affirmed the sale. The defendants 1 party have now been put in possession of the mehal by the Collector of Monghyr. Hence the suit for the reliefs mentioned above.

(3.) The Subordinate Judge has held that the Commissioner could not review and set aside his order of the 23 March, and therefore that the order of that date setting aside the sale holds good. The plaintiffs are accordingly entitled to possession. He further holds in the alternative that there is no proof of the service of the notice of sale, that the property was sold for an inadequate price, but that there is no direct evidence to show that the inadequacy of price is the result of the non service of the notice of sale. He has accordingly given the plaintiffs a decree.