BIBHUTI BHUSAN DUTT, SHEBAIT OF SRI SRI ISWAR RADHABALLAV JIU, SRI SRIRADHA GOBINDA JIU AND SRI SRI ISWAR KUNJA BEHARI JIU Vs. RANEEGUNJ COAL ASSOCIATION LTD

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge, Burdwan, dismissing a suit to set aside a sale for arrears of revenue under Act 11 of 1859, on the grounds that it was irregular, collusive and fraudulent, or in the alternative for a declaration that the principal defendants who are in possession of the properties, are bound to re-convey them to the plaintiff deities. The properties in suit are dewatter lands appertaining to touji No. 5000 of the Burdwan Collectorate and held in patni right by the Raneegunj Coal Association, defendant 1, in the suit. The plaintiff is a shebait of the Thakurs, the superior landlords. The pro forma defendants 6 to 34 are also shebaits. Principal defendant 2, Messrs. Kilburn and Co., are the managing agents of the Coal Company, and their muktear or agent, Jagatpati Bhattacharji, is defendant 4. Defendant 5, Sripatti Dutta, is one of the shebaits of the Thakurs.

(2.) The case outlined in the plaint was that the patnidar defendant 1 made default in payment of his rents. The plaintiff and pro forma defendants 15 and 16 wrote demanding payment of arrears, and requesting the defendant company to pay the Government revenue and save the property from sale. The Company undertook to pay the revenue and did so for some time. Ultimately however, they failed to make a deposit and on 29 March 1929 touji No. 5000 was sold for arrears of revenue, and purchased by Kilburn & Co. on behalf of the Raneegunj Coal Association, through the muktear Jagatpati for a sum of Rupees 4800. Subsequently, Messrs. Kilburn & Co. sold part of the property, the Shaha-bad pergana, to the wife of Jagatpati who is defendant 3 in the suit, as ostensible purchaser, the real owner being defendant 5, the co- shebait of the plaintiff. It was alleged that all these transactions were collusive and fraudulent, and the outcome of an agreement between the managing agents, the Coal Company, the muktear Jagatpati and the shebait defendant 5 to get possession of the property under colour of the processes of law. In the Court below the substantial issues contested were Issues 4, 5, 6 to 10 and 15. Issue 6 raised the question of collusion, fraud and suppression of sale notices. Issue 9 was whether defendant 5 was a bona fide purchaser for value. Issue 8 was whether the sale itself was legal and regular. All these questions were discussed together by the learned Judge in the Court below.

(3.) His definite findings were that there was no fraud on the part of the defendant company, and no evidence of a wilful default on their part at the instigation of defendant 5. He held further that there was nothing to justify a finding that there was any understanding between defendants 4 and 5 to the effect that the former would influence the company to sell part of the property, and nothing to support the position that the company was a party to any such arrangement or purchased on the basis of it. The Judge has also held, on this part of the case, that the plaintiff? failed to establish that the purchase by defendant 3 was a benami transaction. In view of the position taken up on behalf of the appellant at the hearing of the appeal before us, it is unnecessary now to consider these findings in any great detail, inasmuch as the case of collusion between the patnidars, the purchaser of the Shahabad pergana and defendant 5 has not been pressed before us. We need only say that we agree with the findings of the Court below on the questions of fact pertinent to the issues-above mentioned. The position taken up on behalf of the plaintiff in the appeal before us is as follows: The company had covenanted to pay the revenue on behalf of the plaintiff landlords and failed to do so, therefore the sale should be set aside. Alternatively, there was a duty cast upon them to make the payments which they failed to perform. Finally they had instructed their agent, Jagatpati, defendant 4, to make the payment necessary to save a sale, for arrears of revenue. He omitted to do so, and the company cannot take advantage o? the fraud of their own agent and retain the property. This leads us to a consideration of Issues 4 and 5 in the suit, which are as follows: