SAIYED ABDUL JABBAR Vs. JITENDRA KUMAR PAL CHAUDHURY

JUDGEMENT

(1.) This appeal by two of the defendants is directed against the judgment and decree of the Subordinate Judge, First Court, Sylhet, dated 14 August 1937. The suit was instituted by nine plaintiffs to set aside a revenue sale held on 23 January 1934, in the alternative for a reconveyance of the plaintiffs share from defendants 6 and 7. The learned Subordinate Judge has granted the first prayer. Mehal Syed Muhamed Nazir, hisya taluk, Md. Batir, bearing Touzi No. 54721/1 of the Sylhet Collectorate, is a permanently settled estate with a total annual revenue of Rs. 3152-3-0. The total local rate payable at the material time was Rs. 754-11-7. The proprietors of the said mehal had opened separate accounts under the provisions of Section 65 of the Assam Land and Revenue Regulation (1 of 1886). Before September 1933, thirteen separate accounts had been opened, the first seven in respect of aliquot shares of the mehal and the remaining six in respect of specific lands of the same. With the residuary there were thus fourteen separate accounts. Another separate account (No. 14) was opened in November 1933. The revenue and local rates were payable in two kists, eleven annas in May and the remaining five annas in September of each year. Separate accounts, Nos. 2 and 6, as also other separate accounts, were in arrear for the May kist 1933. The remaining separate accounts except Nos. 2 and 6, cleared up the arrears by payment before 12 September 1933, the date fixed for sale for the arrears of May kist, but separate accounts, Nos. 2 and 6, were still in default on that date. In the sale statement (Ex. 23, II-1) prepared by the Deputy Commissioner under Section 72 (1) of the Regulation the arrears stood thus:

(2.) In the course of the sale, the?said two separate accounts were reached on 15th September 1933. No bids were offered for them with the result that the Deputy Commissioner stopped the sale and directed under Section 70 (2) the sale of the entire estate at the sale date to be fixed for the sale for the arrears of the September kist of 1933. Within ten days of this direction none of the proprietors of the remaining separate accounts came forward to pay up the arrears due for the said separate accounts Nos. 2 and 6 as provided for by Section 76. 23 January 1934 was later on fixed as the sale date for the arrears of the September kist of 1933. On that day, the entire estate, Taluk Muhammad Batir, was put up to sale and was purchased by defendants 3 and 4 for Rs. 2300. On 17th, January 1935 after the confirmation of the sale (which was on 8 November 1934), defendants 3 and 4 executed a deed of release in favour of defendant 7, Syed Abdul Jabbar, in which they admitted that the latter had 12 annas share in the estate purchased by them, as he had contributed 75 per cent, of the price. (Ex. B, 11-33) defendants 3 and 4 on the same date sold the remaining 4 annas share to defendant 6, Rabindralal Das Chaudhury, son of defendant 5 (Ex. H, II-35). Defendant 7 on the next day (18 January 1935) sold 4 annas out of his 12 annas share to defendant 6 (Ex. I, II-37). The position then at the date of the suit, which was filed on 25th September 1935, was that the entire estate so purchased by defendants 3 and 4 had passed to defendants 6 to 7, who held the sale of 23 January 1934 to be an irregular one. In the sale statement and in the proclamation of sale the arrears of the entire estate for the September kist 1933 were also shown and lumped together with the arrears of May kist of 1933 due in respect of separate accounts Nos. 2 and 6. This according to him could not be done by the Deputy Commissioner. This is the only irregularity he found. He held that the estate was worth much more than Rs. 2300 (about Rs. 32,000), and that the irregularity on which he proceeded in decreeing the suit had been mentioned by the plaintiffs in their memorandum of appeal to the Commissioner filed under Section 79. Before us Mr. Bose appearing for the plaintiffs respondents besides supporting the reasons of the Subordinate Judge, has placed three other points, which according to him vitiate the questioned sale. The points accordingly are : (i) that the Deputy Commissioner had no jurisdiction to sell the entire estate on 23 January 1934; in any event the sale statement not being in accordance with law the sale was an irregular one, (ii) that the acceptance of the earnest money four or five hours after the bid was a material irregularity, (iii) that the sum of Rs. 36 and Rs. 9 paid after 15 September 1933 and before the advertisement on account of revenue and local rates respectively were not credited. That was also a material irregularity. He has further contended that even if the sale cannot be reversed, the plaintiffs are on the facts proved entitled to a conveyance of their respective shares on payment of proportionate prices. We will first deal with this point and the question whether the sale has fetched an adequate price. We may at once say that we agree with learned Subordinate Judge on both these points.

(3.) The plaintiffs case is that defendants 1, 2 and 8 to 23, for brevity's sake called the Sultanshi Zemindars, were men of influence but some of them, especially defendant 9, were involved in debts and some others had created unprofitable tenures. They intentionally defaulted to pay their share of revenue with a view to purchase in benami at the revenue sale, so that the encumbrances which they had created may be got rid of. On the date of the sale two of them, defendants 1 and 2, and their naib, Musrabulla, dissuaded the officer of plaintiff 1 from offering bids by holding out allurements, and later on the agents of the Sultanshi zemindars after the sale, at which they purchased the property in the benami of defendants 3 and 4, induced the plaintiffs by false promises not to deposit the arrears and the compensation within 30 days of the sale under Section 78-A. This case has been developed in the evidence of Harimohan Dass, naib of plaintiff 1, and Girish Chandra Pal, another officer of plaintiff 1. The case made in the lower Court that there was a concluded contract between the plaintiffs and the Sultanshi Zamindars by which the latter promised to convey to the former their respective shares for proportionate prices was not pressed before us by the respondents advocate and so need not be considered.