MUHAMMAD IDRIS Vs. MOTASADDI MIAN

JUDGEMENT

(1.) This appeal arises out of a suit for the annulment of a sale for arrears of revenue which took place on the 19 of September 1904. The main grounds upon which the plaintiffs come to Court, are two. First, that the Collector had no jurisdiction to hold the sale as no arrears.. were legally due and second, that the Sale was brought about by the fraud of defendant No. 3, who was the accredited agent of some of the plaintiffs for the payment of revenue and being as such bound to give information of the estate having fallen into arrears, did not do so, but on the contrary, colluded with defendants Nos. 1 and 2 whose servant also he was and purchased the estate for himself, his relation defendant No. 4 and defendants Nos. 1 and 2, entitling the plaintiffs to a reconveyance of their shares on payment of the proportionate value.

(2.) The learned Subordinate Judge has decided the suit against the plaintiffs on both these points and they have appealed mainly on the grounds indicated above.

(3.) The main facts of the case are that the estate called Mahal Fakruddinpur bearing touzi number 1146 of the Saran Collectorate and consisting of the two Mouzas Pakri Fatehulla and Fakruddinpur bore a Government revenue of Rs. 186-14-21/4. The mouzawar register kept by the Collector under Section 4 of the Land Registration Act, Exhibit 19, page 117, shows that the revenue assessed upon Mouzah Pakri Fatehulla was Rs. 79-2-51/2 and that upon Fakruddinpur Rs. 107-11-83/4 . The learned Subordinate Judge says: "This so called mahalwar register which bears the signature of the Superintendent of Survey, is not binding on the Collector, as the jama sadar of 2 villages cannot be apportioned except under the Butwara Law." This seems to be a misconception of the Subordinate Judge, The keeping of these mauzawar registers, called mahalwar registers in Behar is enjoined by Section 4 of the Land Registration Act, VII of 1876, B. C. and even before that enactment There were the quinquennial registers under Regulation, XLVIII of 1793 and estate registers under Regulation VIII of 1800. The attested copy filed, was taken from the Collectorate and the mere fact that it bears the signature of the Superintendent of Survey on a corner, does not make it a document kept by that officer. This document does not show any apportionment of revenue within a mouzah but states the revenue assessed on each mouzah, so that the reference to the Butwara Law is quite irrelevant. Now several separate accounts were opened in respect of this estate, four in respect of Mouzah Pakri Fatehulla comprising the whole 16 annas and 2 in respect of Fakruddinpur comprising 6 annas, leaving 10 annas as the ijmali or residuary share bearing the original touzi number 1146: the separate account shares being numbered as 1146/1, 1146/2, 1146/3, 1146/4, 1146/5, 1146/6, the first four relating to Pakri Fatehulla and the rest to Fakruddinpur. The first separate account 1146/1 was in respect of 9 annas 4 pies of Pakri for a revenue of Rs. 46-3-1, which is exactly proportionate to the basis of the revenue for the 16 annas being Rs. 79-14-51/2. The second separate account 1146/2 was opened in 1872 in respect of a 2-annas share of Pakri Fatehulla and the revenue fixed was Rs. 10-11-6. The third account 1143/3 was opened in 1882 for 4 annas 8 pies for a revenue of Rs. 22-4-3, the 16 annas, making a total of Rs. 79-2-10, a little more than the actual amount of Rs. 79-2- 51/2, small fractions being taken as units for the convenience of realization and payment. In 1884, account No. 4 bearing T U 1146/4 was opened out of account No. 2 for 6 pies 13 krants and odd and the revenue assessed was Rs. 2-11-11. Account No. 5 was opened in 1892 for 2 annas of Fakruddinpur with a revenue of Rs. 13-7-6 and another of 4 annas of Fakruddinpur with a revenue of Rs. 26-15-0, both amounts being in exact proportion to a revenue of Rs. 107-11 -83/4 for 16 annas. Thus 10 annas of Fakruddinpur was left as the residuary share and its revenue should be Rs. 107-ll-83/4 minus Rs. 40-6-6, the total of the jamas for Nos. 5 and 6, that is, Rs. 67-5-23/4 .It would appear that when account No. 4 was opened out of account No. 2, the original revenue for the original No. 2 was not reduced but left as before and the jama of the imali share was reduced by Rs. 2-11-11 which was assigned to account No. 4. In this way from June 1884 to March 1904 for a period of 193/4 years, the jama of account No. 2 was from year to year kept up on the erroneous basis of Rs. 10-11-6, i.e., Rs. 2-11-11 more than it should have been and the result was that account No. 2 was erroneously charged with Rs. 2-11-11 multiplied by 19 3/4, Rs. 54-3-5 in excess. The arrear shewn on the March kist of 1904 is Rs. 52-4-4 and if the accounts of the Collector had been correctly kept, the account No. 2 would not only have been not in arrears in March 1904 but have had an excess payment of Rs. 1-15-1 to its credit. It is contended that even the figure of Rs. 10-11-6 is not correct and it should have been Rs. 9-14-4. Upon this amount being taken as the correct jama for the original No. 2, the excess payment would be much more on the 28 of March 1904, so that on either calculation, there was no arrear due from account No. 2 on the 28 of March 1904, and the proceedings for the sale of account No. 2 for the March kist of 1904 are entirely void, and consequently the sale of the entire mahal under Section 14 is also void. See Balkishen Das V/s. Simpson 25 C. 833 : 25 I.A. 151 : 2 C.W.N. 513. The learned Subordinate Judge says that "If the plaintiff's Pleader had shown by means of chalans that the owners of khata No. 2 have all along paid their share of Rs. 8 rent since the opening of the khata No. 4 and that the arrear is due to their not paying Rs. 2 odd, then that would have shown to some extent the reason of his contention. Here also the learned Judge is under a clear misconception. For as soon as we have it that since 1884, khata No. 2 has been charged with Rs. 10-11-6 and that on the March 29 of 1904, the arrear due on that basis was Rs. 52-4-4, the natural conclusion must be that the owners have paid the balance. There is another view of the case also in which the sale can be held to be ultra vires. Taking it for granted that the Collector's books were all correctly kept and that the plaintiffs were not entitled to rely upon the legally payable proportion of revenue for account No. 2, the arrear upon the 29 of March 1904 was Rs. 52-4-4 for account No. 2.