MAKBUL ALI CHOWDHURY Vs. AMRITA LAL GHOSE

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that a revenue sale was premature, void and irregular in law, and for confirmation of the plaintiffs possession and in the alternative for a kobala from defendants 1 and 2 in respect of the plaintiffs share. The case made in the plaint is that the Taraf named Taraf Golami appertained to Taraf 1877 Kismat Mohang Safi and Rs. 26-3-9 is the revenue payable; out of this Rs. 6-11-8 is payable on 28 September and Rupees 19-10-10 is payable on 28 March. It appears from the "financial ledger" of the year 1932-1933 that towards the close of the said financial year a sum of annas 5 and pies 2 was paid in advance on account of revenue. The Government however caused the mehal to be sold in auction on 7 January 1933 on the ground that a sum of Rs. 6-3-9 which was in arrears on or before 31 August was the arrears of revenue which has not been paid on 28 September 1932, the last date of payment. It is alleged that defendant 2 purchased the mehal in auction in the benami of defendant 1. The plaintiffs case is that the mehal was not in arrears on or before 31 August 1932. According to the plaintiffs case the amount of kist payable on 28th September becomes an arrear of revenue on 1 October and 28 March is the next date of the payment of such arrears. Consequently the auction sale of 7 January 1933 was premature and illegal. Plaintiff 3 and some other co-sharer plaintiffs preferred an appeal before the Commissioner but were unsuccessful. The plaintiffs accordingly bring the suit with the prayer as stated above. The suit is contested by defendant 1 who traversed the grounds alleged in the plaint and states that the kists for the payment of the revenue of the mehal are four in number and not two as alleged by the plaintiffs. The aforesaid auction sale was held for arrears of revenue amounting to Rs. 6-3-9 on a deduction from the sum of Rs. 6-.8-11 payable in the March or Chaitra Kist. Therefore the arrear was in the month of Baisakh and the last date for the payment of the same was 28 September. The payment not having been made, the auction sale was held properly on 7 January 1933 on this point, as also on other points. The learned Judge has held in favour of the defence and dismissed the suit. Hence this appeal by the plaintiffs.

(2.) The only ground upon which the appeal is sought to be supported is that there was no arrear for which the revenue sale could be held. This was not taken in the grounds of appeal before the Commissioner. In order to avoid the operation of Section 33, Revenue Sales Act, it is contended for the appellants that the sale in this case must be held to be a nullity, because there was no arrears at all. Therefore the question upon which the decision of this appeal must turn is whether there was any arrear at all as alleged by the plaintiffs. As mentioned already, according to the plaintiffs there were two "kists", namely 28 September and 28 March. According to the defence these were not the kists for the payment of revenue according to the engagement, but these were only the latest dates of payment the revenue itself being payable in four instalments. Now it is to be remembered that in these cases it is necessary to find out three factors: first, the date of payment of instalment in accordance with the lease, secondly the date on which an instalment remaining unpaid would be an arrear of revenue in accordance with Section 2, Land Revenue Sales Act, and thirdly the latest date of payment as fixed by the Board of Revenue in accordance with Section 3 of the Act: Amrita Lal Roy V/s. Secy. of State (1918) 35 C L J 221 and Bhama Kant Lal V/s. Kashi Nath Singh AIR 1926 Pat 549 a Patna case which followed the Calcutta case. It has also been pointed out that the word "kist" in the touji ledger is misleading because by a rule inserted in the Touji Manual the word "kist" is used in that Manual to indicate the latest date of payment under Act 11 of 1859 and not the kist of the settlement doul, while at the same time the latest dates of payments were entered in the instalment columns of both the Touji Ledger and "Roll" Board Manual, 1933 p. S: Jadunandan Singh V/s. Savitri Devi AIR 1933 Pat 236 and Nanak Prasad Sahu V/s. Mt. Kaseda Kumri AIR 1936 Pat 260.

(3.) That there has been a confusion for this reason and "kists" in accordance with the settlement have been lost sight of is pointed out by Mukherji, J. in Radha Gobinda Deb v. Girija Prasanna Mookerji . Now in this case, the burden of proving the dates of the instalments in accordance with the lease was undoubtedly on the plaintiffs who were the original maliks. Defendant 1 is an auction purchaser. He has produced the papers which were available in the Collectorate, namely the estate ledger and the notices. Plaintiffs for their part rely on the touji ledger Ex. 1. This ledger shows 2 kists, namely Rs. 6.8-11 on 28 September and Rs. 19-10- 10 on 28 March. In accordance with the accounts kept in this ledger, there was a balance of Rs. 6-3-9 at the end of the second kist namely 28 September 1932. If then the word kists here be taken to be equivalent to the date on which the instalment is payable in accordance with the settlement, then the amount becomes arrear on 1 October and therefore the property could not be put up to sale until 28 March following; the defence on the other hand relies on the estate ledger Ex. C which shows four kists of which the Chaitra kist is for a sum of Rs. 6-8-11. The learned advocate for the plaintiffs-appellants in this Court has sought to repel the value of Ex. C by arguing that this property refers to some other estate, it may be the parent estate out of which touzi 1877 Taraf Golami was carried out. But there is nothing to show this. On the contrary, the amount of revenue payable tallies and it is admitted in the plaint itself that the property in question appertains to Kismat Taraf Golami. In a number of cases it was found that the dates on which the instalments are payable in accordance with the settlement and the latest dates of payment as fixed by the Board of Revenue are the same: Mt. Sareswati Bahuria V/s. Suraj Narayan ; Krishna Chandra V/s. Pabna Dhana Bhandar Co., Ltd. and Haji Bukah Elahi V/s. Durlav Chandra Kar (1912) 39 Cal 981. In the last mentioned case the document of settlement was found and there was no difficulty in ascertaining the date of payment. On the other hand in some cases the two sets of dates have not coincided, as for instance, in Radha Gobinda Deb V/s. Girija Prasanna Mookerji cited above and in Jagadishwar Narayan V/s. Md. Hazig Hosain AIR 1926 P C 126.