BEJOY KRISHNA MOOKERJEE Vs. LAKSHMI NARAIN JIU (IDOL)

JUDGEMENT

(1.) This is an appeal by the second defendant in a suit instituted under Section 14, Clause 1 of the Putni Regulation, 1819, for reversal of the putni sale. Putni Mahal Sajnore appertains to Touzi No. 11 of the Burdwan Collectorate and is situate partly within Burdwan district and partly within Birbhum district, in respect of this putni, Rs. 6,928 is annually payable as rent by the plaintiffs to the first defendant, the Maharaja of Burdwan. Default was made in payment of rent for the Bengali year 1321, with the result that proceedings under the Regulation were instituted by the Zemindar. The putni was sold by the Collector of Birbhum on the 15th May 1915, corresponding to 1st Jaist 1322. The appellant offered the highest bid and became the purchaser for Rs. 14,500. On the 8th May 1916, the plaintiff instituted the present suit for reversal of the sale. The Subordinate Judge has found, first, that the arrears due had been paid by the plaintiffs to the officer of the Zemindar at Burdwan on the day previous to the sale and that no arrears were due when the sale was held at Birbhum on the 15th May 1915 : secondly, that the notice required to be stuck up at a conspicuous part of the Collector s katchnri was defective and misleading and was not served in accordance with Section 8, Clause 2, and Section 10, paragraph 1, of 47 the Regulation : thirdly, that the evidence of service of the notice at the katchari in the Moffasilis most unsatisfactory. On these grounds, the Subordinate Judge has decreed the suit, set aside the sale and directed that possession be restored to the plaintiffs, the purchase money to be refunded to the purchaser. He has also held that, in the circumstances disclosed, each party should bear his own costs. The purchaser defendant has appealed to this Court, and on his behalf the conclusion of the Subordinate Judge upon each of the three points mentioned has been rigorously attacked.

(2.) The first point involves the questions of the time of the payment and of its legal effect. It is not disputed that a sum of Rs. 4,158-10-6 was paid by the manager of the plaintiffs to the officer of the Zemindar defendant and was accepted by the latter as the full amount due; but the controversy has entered round the question of the precise time when the payment was made. The Subordinate Judge has held, on the evidence of the Deputy Manager of the Burdwan Raj and on the testimony of other witnesses, that the payment was made between 8 p. m. and 10 p, m. on the evening of the day antecedent to the sale. Mr. Das has criticized this evidence severely and has invited us to hold that the money was paid after midnight, probably a short while before morning. The payment must have been made before 6 A. m., as a telegram was sent at that hour to the Am-Muktear of the Zemindar at Sari, asking him to strike off the proceedings. Mr. Das has pressed his view on the Court in order to lay the foundation for an argument that a payment made after midnight is equivalent to a payment on the following day, that is, the day of sale, and that a payment so made is inoperative to stop the sale. It is plain, however, that when the Regulation mentions Bengali months and dates throughout, the Legislature must have intended that a day should be reckoned in the manner prevalent in Bengal, that is, from sunrise to sunrise. In this view, it becomes immaterial to decide, whether the money was paid between 8 p. m. and 10 p. m. in the evening or later on in the night. There are slight discrepancies in the evidence on this point: but Dr. Dwarkanath Mitterhas rightly contended that in a matter of this description, where the issue involves a simple question of fact to be decided ohiefly, if not solely, on oral evidence, a Court of Appeal should be slow to set aside the finding of the trial Judge who had the witnesses before him: Bombay Cotton Manufacturing Go. v. Motilal 29 Ind. Cas. 229 : 42 I. A. 110 : 39 B. 386: 28 M.L.J. 593 : 17 M.L.T. 40" : (1915) M.W.N. 788 : 2 L.W. 521 : 17 Bom.L.R. 455 : 21 C.L.J. 528 : 190 W N. 617(P.0,); Dominion Trust Co. v. New York life Insurance Co. (1919) 1 App. Cas. 254 : 88 L.J.P. C. 30.

(3.) On the whole, we are not satisfied that the time of payment has been erroneously asoer- tained by the Subordinate Judge. The question next arises what was the legal effect of the payment actually made. Mr. Das has contended that there was in reality no unqualified payment, but only a oouditional deposit. This argument is rested on the following endorsement made in the challan at the time of payment: The amount being untimely paid, extra telegram is sent. The Raj Sarkar is not responsible, if the telegram does not reach the Raj katchari at Suri in time, or reaches it at a late hour, with the consequence that the lot is sold in auotion sale; the amount will be received back without any objection and without interest.