AMAR KRISHNA SHAHA Vs. ABDUL JALEL MIYAN

JUDGEMENT

(1.) THIS is an appeal by the defendant from a judgment of the learned Subordinate Judge of Chittagong, dated the 27th August 1913. The plaintiffs who were the owners of a certain taluk brought the suit to set aside a sale that had been made of their taluk on the 22nd August 1911 for arrears of Government revenue under Act XI of 1859 and Act VII of 1868. The plaintiffs taluk was Noabad Taluk. Fateh Ali bearing Tauzi No. 1408/20626 of the Chiitagong Collectorate. The Government revenue assessed on the taluk was a sum of Rs. 30 only payable by two instalments namely, an instalment of Rs. 18-12-0 payable on the 25th of February every year and an instalment of Rs. 11-4-0 payable en the 25th of May every year. The sale which was made by the Government under the provisions of the Revenue Sale Law was made on the 22nd August 1911 and it was purported to be made for default in the payment of the May instalment of the same year. The evidence establishes it conclusively that on the 13th May 1911 one Lalit Mohan Mukerjee who was the agent of the plaintiffs sent through post by money order which is called revenue money order the sum of Rs. 11-4-0 (that being the instalment of the revenue payable on the 25th of May of that year) to the Collector. The money was received by the Collectorate on the 15th May 1911 ten days before the due date; but it was not credited to the plaintiffs on two grounds namely that the taluk was described as Fateh Ali Nazir and that the number of the taluk as given contained a slight error. But the evidence of the clerk of the Sadar Khas Mahal was that the money was received that he did not know in respect of what taluk it had been paid, and that, therefore, the amount was not credited to the plaintiffs. That is a common fact and the subsequent letters to the Postmaster, at Fatikcherry written by Lalit Mohan and the certificate granted by the Postmaster are not material because there is evidence that without doubt the instalment was received in the Collectorate on the 15th May 1911. The evidence seems to establish that the clerk of the Sadar Khas Mahal could have found out by reasonable enquiry in respect of what taluk the payment of Government revenue had been made. There were only two taluks bearing the name of Fateh Ali registered in the Collectorate. One bore a Government revenue of Rs. 2, so the payment obviously could not have been in respect of that taluk. The other taluk bearing the name of Fateh Ali was the plaintiffs taluk and any reasonable enquiry between the 15th May and the date of the sale would have shown in respect of what taluk the money had been sent to the Collector. It is said that the number of the taluk as given was slightly wrong. But that could have been within the length of time that elapsed between the 15th May and the date of the sale easily checked even if there were a thousand and odd mahals registered in the Collectorate. It has been laid down more than once that these powers the Government have of selling a property for default of the payment of Government revenue are stringent powers and can only be exercised when the cases mentioned in the Act have actually occurred. The payment having been made by the plaintiffs and the mosey having been received by the Collector although for the want of making proper enquiries the officers in the Collectorate were not aware in respect of which taluk the payment had been made, the Government clearly was not entitled to sell the plaintiffs taluk. I agree in the conclusion of the learned Subordinate Judge that the sale of the plaintiffs taluk to the defendant was not a valid sale. Then the defendant says that he having bought the property worth Rs. 8,000, for Rs. 1,650, it is hard to make him liable to pay mesne profits and the costs of the suit, I do not agree that caveat emptor applies to sales made for Government revenue and the defendant made the purchase with all the benefit and all the burden. If the sale had been supported he would have been the fortunate possessor of a property worth Rs. 6,000 for the sum of Rs. 1,650 only. When the contrary happens and the sale is set aside he becomes the unfortunate loser of the property which he has got to give back to the plaintiff together with mesne profits and the costs of the suit. I agree in the conclusion arrived at by the learned Judge of the Court below. The present appeal, therefore, fails and must be dismissed with costs. Richardson, J.

(2.) I agree with the learned Subordinate Judge that the sale should be set aside and accept his reasonings. The appeal is dismissed with costs.