JALADHI CHANDRA MUKHERJI Vs. PARBATI CHARAN MUKERJI

JUDGEMENT

(1.) This is an appeal by Jaladhi Chandra Mukherji who was defendant 3 and also defendant 5 in the suit. The relevant facts are these: Putni mahal Rampara called lot Rampara is situated in three touzis Nos. 82/1 Rampara proper, 163 chikuranda and 4001 Mahmudpur of the Hooghly Collectorate. This putni was held at the material time by Parbati Charan Mukherji under the Maharaja Sir Jatindra Mohan Tagore at a rental of Rs. 16,058-5-6 out of which Rs. 9,358-5-6 was payable on account of Government revenue, the net munafa being Rs. 6,700. Putni mehal Haripore also called Lot Haripore is situated in touzi No. 150 and was held at the material time by Parbati Charan's eldest son, Dharendra Krishna Mukherji at a rental of Rs. 11,818.1-4 of which the net munafa was Rs. 5,000 the remainder being payable as Government revenue. These two putnis were the subject matter of a trust created by the Maharaja in favour of certain persons including the present defendants 1, 2 and 3. Both the putnis fell into arrears of revenue and were made the subject of Ashtum proceedings on 14th April 1932. The application bearing No. 485 related to lot Rampara and the application bearing No. 509 related to lot Haripore. Both the putnis were put up to sale on 16 May 1932.

(2.) According to the case for the appellant, Rampara was sold for Rs. 5,300 to Jaladhi Chandra Mukherji in his personal capacity and in that capacity he is defendant 5. Lot Haripore was sold for Rupees 8,650 to defendant 4 who is Bhupendra Chandra Mukherjee, another son of Parbati Chandra. On 28 May 1932 defendant 4 applied to the Collector stating that be had not purchased lot Haripore but that he had purchased lot Rampara. His application to record him as the purchaser of lot Rampara was however refused by the Collector. Defendant 4 then appealed to the Commissioner. The appeal was dismissed on 7 June 1932. Before that order on 23 May 1932 the plaintiff as putnidar brought Title Suit No. 25 of 1932 to have the sale of lot Rampara set aside. The putnidar of lot Haripore brought Title Suit No 39 of 1932 to have the sale of that putni set aside. The two suits were tried together and in the result the sales were set aside. In T.S. No. 39 of 1932, in which the sale of lot Haripore was set aside, there is no appeal. The present appeal relates to the setting aside of the sale of lot Rampara in T.S. No. 25 of 1935. A large number of issues were framed in both the suits and some of these issues were decided in favour of the plaintiff and some against him. Out of these, the following may be said to comprise the main allegations. It is alleged by the plaintiff that on the date previous to the Ashtum sale, a contract had been entered into between the putnidar on the one hand and the zamindars on the other that the Ashtum sales would be dropped on certain payments being made, that in accordance with that contract payments were actually made on the day previous to the sales and the balance was tendered on the day fixed for the sales. In spite of this the sales were held. Consequently they are liable to be set aside. It is also alleged by the plaintiff that on account of error in the procedure, to which the zamindar defendants as well as the Collector contributed, lot Haripore instead of lot Rampara was put up for sale in the first Ashtum case No. 485 and lot Rampara instead of lot Haripore was sold in the second Ashtum case No. 529. The sales were vitiated by error in procedure.

(3.) All these allegations and certain other allegations to which reference will be made in the course of the judgment, the learned Judge found in favour of the plaintiff. It is further alleged by the plaintiff that the requisite sale notices were not duly published. On this point the learned Judge has held against the plaintiff. It is now possible to turn to the points which are urged in support of the appeal. It is contended for the appellant that the learned Subordinate Judge was wrong in deciding issues 8 and 9 in favour of the plaintiff that there was no arrangement or contract to stop the sales as alleged by the plaintiff and that the defendant and the Collector were justified in refusing to accept the tender made in behalf of plaintiff on the date of the sale. The arrangement in question is stated thus in paras. 3 and 4 of the plaint: The defendants received from the plaintiff on 1 Jaistha 1339 B.S. the sum of Rs. 5,975 and the defendants acknowledged receipt of the said amount at the time of the Ashtam sale, At the time of the payment of the said amount it was agreed between both parties that out of the said amount, the sum of Rs. 551-8-9 due to defendants 1, 2 and 3 on account of the Ashtam case for Lot Haripore against Dharendra Krishna Mukherji, son of the plaintiff, should be credited first, and the balance should be credited towards Lot Rampara; and that the defendant on receiving from the plaintiff the balance due to them for the last mentioned mahal on the next day, 2nd Jaistha, at the Hooghly Collectorate should cause both the Ashtam cases, namely, Nos. 485 and 509 of 1932-33 to be struck off. As a matter of fact, nothing was due by the plaintiff to defendants 1, 2 and 3 as rent on 2nd Jaistha on account of the putni mahal in suit; therefore the sale thereof has been invalid.