Sheo Ratan Singh v. Net Lal Sahu

The Plaintiffs were proprietors of a 14 annas 6 pie odd share in Taluk Nur-pore Majhauli, Pergunnah Arrah, Touji No. 509, and Defendants Nos. 4 to 8 were proprietors of the remaining 1 anna pie odd share. Prior to 1896 the Plaintiffs had applied to have a separate account opened in respect of their share, but their prayer had not been granted. On the 7th September, 1896 this estate was put up for sale for arrears of Government revenue due on the March kist for 1896 amounting to Rs. 17-12, and was purchased for Rs. 1,200 by Defendants Nos. 1 to 3. Plaintiffs appealed to the Commissioner but their appeal was dismissed on the 30th January, 1897, and on the 10th March, 1897 possession was delivered to Defendants Nos. 1 to 3, sale certificate having been issued to them on the 23rd February, 1897.

This suit was instituted on the 24th January, 1898 to have the sale set aside as invalid and irregular on the following grounds (1) that the proprietary right to 2 annas of the Plaintiff Lachaorayan was under attachment in execution of a decree obtained against him by Babu Baijnath Sahai of which notice had been given to the Collector and as that attachment was in force at the time of sales a notice should have been served under sec. 5 of the Act, but this was not done; (2) that the notices under secs. 6 and 7 of Act XI of 1859 were not drawn up according to the provisions of the law; (3) that notice under sec. 7 was not served; (4) that the sale proclamation was not issued and posted in the Collector's Court and in the Court of the District Judge according to the provisions of the law, but that the proceedings were taken clandestinely and fraudulently; (5) that Defendants Nos. 4 to 8 were in collusion with the purchasers allowing the property to be sold at an inadequate price and dissuading intending purchasers from bidding at the sale; (6) that the property was alleged to be worth Rs. 15,000 to Rs. 20,000 with a Government revenue of Rs. 880-12 and it was sold at the very inadequate price of Rs. 1,200 in consequence of the irregularities.

The Plaintiffs alleged that they had paid up the full arrears due on their share and arrears for which the estate was sold were due from their co-sharers, Defendants Nos. 4 to 8.

The Defendants denied all the irregularities alleged by the Plaintiff and further relied on the provisions of sec. 33 of Act XI of 1859 and contended that the Plaintiffs had not suffered substantial loss by reason of the property being sold at an inadequate price and that ??? were bound to prove, if they had ??? loss, that it was the result of the ??? They also relied on the provision of sec. 8 of Act VII, B.C, of 186 as a bar to the present suit on the ground that the sale certificate issued to them was conclusive evidence that all notices in or by Act XI of 1859 required to be served and posted had been duly served and posted.

There was a further plea that the interests of Plaintiffs Nos. 1, 3 and 4 in the property had been sold for arrears of cesses before the sale for arrears of revenue and purchased by mukhtear Abdul Hossein and Nur Ahmed Ali, and that, as they had withdrawn their share of the sale-proceeds, the suit so far as those Plaintiffs were concerned was barred by sec. 33 of Act XI of 1859.

The Subordinate Judge overruled the last objection holding that the two persons were merely speculative and sham purchasers who had no real interest in the property.

He held that the Plaintiffs had failed to give any evidence to prove that at the time of the sale there was any order of attachment of any Civil Court actually subsisting.

He found that the notices as required by sec. 6 of Act XI of 1859 had been duly issued and posted, that the Plaintiffs had failed to prove that the notices required by sec. 7 of the Act had not been duly served and posted and even if they had not, then no injury could have resulted to the Plaintiffs from the omission [see Gobind Chundra Gangopadhya v. Sherajunnissa Bibi(1)].

??? further held that the Plaintiffs had ??? to prove inadequacy of price by ??? to produce their collection ??? or that the lowness of the price ??? attributable to any irregularity in publishing or conducting the sale. He pound that the Plaintiff had failed to prove that the sale had been brought about by the fraud of their co-sharers, and, if it had been, then Plaintiff's remedy against them was by suit for damages under the proviso to sec. 33 of the Act. He relied on the case of Gobind Chundra Gangopadhya v. Sherajunnissa Bibi as an authority for holding that even if the purchasers with the co-sharer Defendants dissuaded other persons from bidding at the sale, such conduct would not amount to fraud, and lastly he held that the provision of sec. 8 of Act VII, B.C, of 1868, were a bar to the Plaintiff's success in the present case, the suit having moreover been instituted on the 24th January, 1898 more than a year after the sale certificate had been issued.

He accordingly dismissed the suit with costs. Plaintiffs have appealed.

The grounds taken in support of the appeal are substantially the same as those on which the suit was brought in the lower Court. The objection to the sale, based on the ground that no notice was issued under sec. 5 of Act XI of 1859, has not been pressed, as there appears to be no evidence to support it. It has been contended that there were irregularities in the preparation and publication of the notices under secs. 6 and 7 of Act XI of 1859, that the property was sold for an inadequate price and that the inadequacy of the price was due to the irregularities. On the other hand it is denied on behalf of the Respondents that there were any irregularities; but if there were, it is argued that after the issue of the sale certificate to the purchasers no objection to the sale on the ground of any omission in the posting and serving of notices under secs. 6 and 7 of the Act can be sustained. The plea has also been supported, though in rather a half-hearted way, that owing to the previous sale of the shares of Plaintiffs Nos. 1, 3 and 4 in the property for arrears of road-cess and the purchase of those shares by the mukhtear Abdul Hossein and Nur Abdul Ali and to the fact that they have withdrawn their share of the present purchase-money it is not open under sec. 33 of Act XI of 1859 to Plaintiffs Nos. 1 to 3 and 4 to join in bringing the suit.

Taking the last point first we agree with the Subordinate Judge that there is not much substance in the plea. From the papers on the record it would seem that on the 20th July, 1896 the interests of certain persons described as debtors in Nurpore Majhauli, Pergunnah Arrah (no Touji number being given) were sold for arrears of road-cess amounting to Rs. 15-4 and were purchased by Abdul Hossein mukhtear for Rs. 55. On the 1st February, 1898, Abdul Hossein and Nur Ahmed Ali were registered in respect of shares of 2 annas 11 pies each in mehal Nurpore Majhauli Pergunnah Arrah, Touji No. 509, and Sat Narain Singh, Dhamak Dhari Singh and Sheo Ratan Singh were each registered in respect of two-ninths of a pie share in the same estate. This order for registration was passed ex parte, and it is remarkable that it was passed nearly 1½ years after the entire interest in the mehal had been sold for arrears of Government revenue to the present Defendants Nos. 1 to 3, and that four days afterwards on the 5th February, 1898 these same persons Abdul Hossein mukhtear and Nur Ahmed All applied to withdraw their share of the sale-proceeds under the last-mentioned sale. The present suit was instituted on the 24th January, 1898 more than a week before the registration of the names of Abdul Hossein and Nur Ahmed Ali as proprietors and 11 days before they applied to withdraw what they said was their share of the sale-prooeeds. The provisions of sec. 33 of Act XI of 1859 could not under these circumstances be a bar to the present suit. The omission of Abdul Hossein and Nur Abdul Ali to take any steps to have their names registered till after the institution of this suit and their entire want of interest in the property which they were supposed to have purchased at the sale for arrears of dâk cess would seem to indicate that their original purchase was purely speculative, and to raise a strong suspicion of some understanding existing between them and the present Defendants Nos. 1 to 3.

The Plaintiffs deny that the notices required by sec. 7 of Act XI of 1859 were served in the locality and to prove this one of the Plaintiffs has given evidence and they have examined Bikoo Lal, Busaman Chamar, and Pergash Chowkidar (who appear on the return of the notice as attesting witnesses of the service) to prove that no such notice was served and that they were not witnesses to its service. On the same ??? they have also examined Thakur ??? who they say is the real patwari and ??? Bikoo (as incorrectly described in ??? return to the notice) and Nandan Singh ??? the malik of a share separated from their in Nurpur. The Defendants have examined their mutsuddi Narain Lal to swear to the publication of the notice. The Subordinate Judge is inclined to believe that the three witnesses to the service of the notice have been gained over by the Plaintiffs as he is unable to believe that the Defendants, the purchasers, could have induced the process-server to submit a false return before they had any interest in the village. Judging however from other transactions in connection with this estate which appear from the evidence to have taken place in the Collectorate it does ??? appear to us to be safe to place ??? reliance on the return. It is ??? however of much real importance to decide whether the Plaintiffs have proved that these notices under sec. 7 were not duly served, as it would be hardly possible as pointed, out in Gobind Chundra Gangopadhya v. Sherajunnissa Bibi and followed in Mahamed Azhar v. Raj Chunder Roy(2) and in Azimuddin Patwari v. The Secretary of State for India(3) to prove that the omission to serve the notice under sec. 7—the only object of which was to prevent the tenants from paying rents to the defaulting proprietors—could in any way affect the price which intending bidders would offer for the property, and in the present case even accepting ??? omission to serve the notice and ??? of price are established ??? Plaintiffs cannot be held to have ??? that the latter was the result of ??? former. It would further appear ??? there is authority to support the ??? that after the issue of the sale certificate to the purchasers the provisions of sec. 8 of Act VII, B.C, of 1868 would bar the Plaintiffs from raising in this suit the question whether the notices under sec. 7 of Act XI of 1859 were duly posted and served.

The questions which remain for consideration are whether the Plaintiffs have made out a case that the notices required by sec. 6 of Act XI of 1859 were not issued in correct form and were not duly posted, whether the property was sold for an inadequate price and whether the Plaintiffs have established their case that the inadequacy of the price was the result of the irregularity.

Taking the question of price first we think that the Plaintiffs have by their evidence proved that the price, viz., Rs. 1,200 for which their property was sold is an inadequate price. The Subordinate Judge was not satisfied that the price fetched was inadequate and he based his conclusion apparently on the fact that Plaintiffs have failed to produce their collection papers, that the deeds of sale showing the prices at which other separated shares in the same village were sold in the last 10 years are not documents on which he can rely for the purpose of determining the value of Plaintiffs' property as the land in Plaintiffs' share is not proved to be equal in quality to the land in the other shares and because one witness Narain Lall has deposed that the Plaintiffs' property was seriously damaged by inundation in last 8 or 9 years. We are not however inclined to place the same reliance as the Subordinate Judge has placed on the evidence of Narain Lall. It is true he was in the service of the Plaintiffs in Nurpore but since the sale to the Defendants Nos. 1 to 3 he has entered their service and his evidence shews that he is their strongest partizan. He would even suggest that the property realized at the sale more than its value; on the other hand we think that the fact that the Government revenue assessed on the property was Rs. 880-12 is strong evidence to show that the value of the estate was much over Rs. 1,200. We also do not agree with the Subordinate Judge that the deeds produced by the Plaintiffs to prove instances in which other shares in the same estate have been sold are not good evidence to indicate the value of the Plaintiffs' property. The Plaintiffs' witness Nandan Singh, a co-sharer, says the putti sold and his putti are of the same quality and that he was prepared to bid up to Rs. 10,000 or Rs. 12,000 for the Plaintiffs' estate. Other witnesses assess the value of the property at the same figure and the deeds produced by the Plaintiffs fully support their case that Rs. 1,200 was very inadequate price for the estate. We cannot therefore agree with the finding of the Subordinate Judge on this point but hold that the property of the Plaintiffs was sold at a very inadequate price of Rs. 1,200, its real value being from Rs. 10,000 to 15,000.

It has been argued for the Respondents that even if the price of the property was inadequate it rested on the Plaintiffs to prove by direct evidence that such inadequacy of price was the result of the irregularity. It has however been held by the Full Bench of this Court in Lala Mobaruk Lal v. The Secretary of State for India(4) that the Privy Council did not intend to lay down any general rule in all cases in Macnaghten v. Mahabir Persad Singh(5) and that the question was rather one of fact than of law: and in a series of cases since disposed of by this Court it has been held that the fact that the inadequacy of the price is the result of the irregularity may either be established by direct evidence or be inferred, where such inference is reasonable, from the nature of the irregularity and the extent of the inadequacy of price [See the cases of Gur Buksh Lall v. Jawahir Singh, Surnomoyee Debi v. Dakhina Ranjan Sanyal, Sadatmand Khan v. Phul Kuar, Jamini Mohan v. Chandra Kumar, Bhikari Misra v. Surja Moni]. The question therefore will be whether, if the irregularity has been proved in this case, the facts established by the Plaintiff are such as either go directly to prove that the inadequacy of price was the result of such irregularity or such as to raise the reasonable inference that it was the result.

It has next been contended on behalf of the Respondents that sec. 8 of Act VII, B.C, of 1868 is a bar to ??? present suit, and that after the ??? the sale certificate to the Defendants ??? is not open to the Plaintiffs to ??? that the notices required by sec. 6 ??? Act XI of 1859 were not duly served and posted. In opposition to this contention reliance is placed on behalf of the Appellants on the Full Bench case of Lala Mobaruk Lal v. The Secretary of State for India in Council in which it was held by a majority of the Judges that a non-compliance with the provisions of sec. 6 of Act XI of 1859 is not a mere irregularity and is not one of those errors in procedure which are intended to be cured by sec. 8 of Act VII, B.C, of 1868. In that case the non-compliance with the provisions of sec. 6 of Act XI of 1859 consisted in the fact that the date fixed for the sale in the notice was less than 30 days from the date of the affixing of the notice, and this was held to avoid the sale and not to be a defect which could be cured by the provisions of sec. 8 of Act VII, B. G, of 1868. This was not an error in the service or posting of the notice but a defect in the notice itself, and in delivering judgment in that case Mitter, J., after holding that the sale was null and void because it could not have been held in accordance with the provisions of Act XI of 1859 remarked: “If it was null and void, sec. 8 of Act VII, B.C of 1868 would not make it valid on the ground that the purchaser has obtained his certificate. This section only cures the defects if there be any in the procedure to be observed regarding the ??? and posting of the notices ??? to be served and posted under ??? Act.” Nor does the previous case of ??? Mukund Lal v. Tirjoodhun Roy(11) ??? further than this. In that case it was held that sec. 8 of Act VII of 1868 merely renders it unnecessary to call evidence to show that the notice itself had been posted, and it is still necessary to show that the contents of the notice are such as are required by sec. 6 of Act XI of 1859.

In the case of Govind Lal Roy v. Ram Janam Misser(12) the Privy Council have held that the provisions of sec. 33 of Act XI of 1859 apply as well as to an illegality as to an irregularity and that such illegality must be declared and specified in the appeal to the Commissioner.

In the present case the irregularity in the service and posting of the notice was one of the grounds taken in the appeal to the Commissioner.

The learned Advocate-General has argued that the non-compliance with the provisions of sec. 6 of Act XI of 1859 in this case amounted to an illegality and not merely to an irregularity and his argument has proceeded on the following lines. He has referred us to the cases of Ashanullah Khan Bahadur v. Trilochan Bagchi(13), and Hurro Doyal Roy Chowdhury v. Mahomed Gazi Chowdhury(14). The first was a suit for recovery of cesses against certain persons in respect of a lakhiraj tenure and it was held that the landlord was bound to prove the service of the notice under sec. 52 of the Road-cess Act, and that the presumption of sec. 114, cl. (e) of the Evidence Act did not apply. The following remark of Mitter, J., in delivering judgment is relied on: “where under an Act certain things are required to be done before any liability attached to any person in respect of any right or obligation it is for the person who alleges that liability has been incurred to prove that the things prescribed by the Act have been actually done.” The second was the case of a sale of a putni taluk held under Regulation VIII of 1819 and it was then decided that failure on the part of the zemindar to prove due publication of the notices required by sec. 8 of the Regulation was a sufficient ground for setting aside the sale under the terms of sec. 14 of the same Regulation. The learned Advocate-General has argued that the case of a sale of an estate for arrears of Government revenue is analogous to these two cases, and that as the publication of the notices under sec. 6 of Act XI of 1859 is essential to the validity of the sale, it rests on the person who appears to support the sale (the auction-purchaser in this case) to prove that the notices were duly prepared, served, and posted. He points out that in the document Ex. A, the attested copy of the rubacari of the Collector of Shahabad, dated 5th August, 1896, which directs the issue of a notice in respect of arrears of revenue of the instalment of March 1896, and in the endorsement of the service of the notice appearing thereon, there is no mention of Plaintiffs' estate nor anything to connect the notice, service of which is endorsed thereon, with the notice under sec. 6 of the Act in respect of the Plaintiffs' estate, dated 5th August, 1896, copy of which has been filed as Exhibit, J. This latter notice we must observe is correct in form. The evidence of the Nazir and the peon is, it is contended, not definite enough to connect the notice served with the Plaintiffs' estate. No doubt there is this flaw on the face of the rubacari Exhibit A, but we may observe that the evidence of the witness for the Plaintiff, Thakur Lal, goes to some extent to cure it when he says “I saw the sale proclamation hung up on the south side of the Collector's Bench where all sale proclamations are hung up. That proclamation was in respect of Nurpore Majhauli.”

We have carefully considered the argument which has been advanced but we are unable to hold that there is authority to support it. We cannot find any analogy between the case first relied on and the present case. In that case the landlord was bound to show that a certain notice had been served, before his suit for cesses could succeed; but we cannot hold that the purchaser of an estate at a sale for arrears of revenue is in the same position. In the case of a sale by a zemindar of a putni taluk under the Regulation the zemindar is exclusively responsible for the observance of the forms prescribed for the publication of notice. The burden of proving due publication is entirely upon him and in every suit brought to contest the legality of the sale he has to prove the due observance of all the formalities, even if the Plaintiff gives no evidence in support ??? plea of non-service. And the ??? non-service or of any informality ??? publication may be taken at any state of the suit or even for the first time ??? appeal. The notices too are served by the landlord's servants and not by the Collector.

In the case of a sale for arrears of Government revenue the notices are served in the ordinary way through the officers of the Revenue Court and the presumption under sec. 114, Ills. (e) of the Evidence Act would arise in respect to the service of such notices until the contrary were proved. The onus of proving that there has been an irregularity in the preparation, service or posting of the notice rests on the person who seeks to have the sale set aside and sec. 33 of Act XI of 1859 provides that no sale shall be annulled by a Civil Court upon any such ground unless such ground shall have been declared and specified in an appeal made to the Commissioner under sec. 25 of Act XI of 1859. There appears then to us to be no analogy between the present case and the case of the sale of a putni taluk.

It must be noticed that the argument which the learned Advocate-General has advanced does not appear to have suggested itself to the Plaintiffs in the Court of first instance and the evidence adduced fails to prove any omission to serve or post the notices under sec. 6 of the Act. So far as the evidence proves anything it would appear to raise a presumption that the notices were served.

We are moreover unable to accept the contention that sec. 8 of Act VII of ??? does not apply to the serving and posting of the notices under sec. 6 of Act XI of 1859. The cases relied on to support the opposite view do not in our opinion go further than to lay down that if there be a defect in the notice itself and in consequence the sale be held under circumstances under which it could not have been held in accordance with the provisions of the law then that defect is not cured by sec. 8 of Act VII of 1868.

On this last ground too, we feel bound, therefore, to hold that the Plaintiffs' case must fail, because they have not proved that there was any irregularity or illegality in the issue or posting of the notices under sec. 6 of Act XI of 1859, and because after the issue of the sale certificate to the purchaser the provisions of sec. 8 of Act VII of 1868 are a bar to their success on the ground which they set forward.

It is true that there are circumstances in this case which render it doubtful whether it is safe to presume that the proper formalities of the law are observed in the Collector's office in Arrah in all cases of the sale of estates. The sale of the 5 annas share of the Plaintiffs' estate for road-cess in September 1897 has been regarded by the lower Court, for reasons given, as a sham, and a sale of the whole estate for arrears of the road-cess and public works cess which seems to have taken place on the 14th June, 1897, that is to say, nearly a year after the sale which is in question in the present suit, was afterwards set aside as irregular under sec. 311, C.P.C, by the Revenue officer on the 7th September, 1897. The sales in both these instances appear to have taken place without the knowledge of the registered proprietors, and there is little doubt that the sale in September 1896 was held without the knowledge of the present Plaintiffs. None of the owners of other shares in the village who would presumably have been anxious to purchase the Plaintiffs' share appeared to bid, and the bidding at the sale was confined to a few mukhtears and there was evidently no contest between them.

We do not, however, find that the Plaintiffs have made out in this case that their co-sharers colluded with the purchasers to bring about the sale. The non-payment of the arrears was no doubt the result of their carelessness, but they joined afterwards in the appeal to the Commissioner, and we are unable to believe the evidence of Plaintiffs' witness Nandan Singh that at the time of the sale Bojrangi Singh, Defendant No. 4, one of those co-sharers, told him that he was purposely causing the property to be sold and purchased by Net Lal Sahu.

The case is, in our opinion, one of undoubted hardship. A valuable estate has been sold at a very inadequate price for an arrear of revenue which in comparison with the total revenue on the estate was very trifling. The law however does not give to the Civil Courts power to interfere with a sale on the ground of hardship, and the Commissioner of the Division who alone had power under sec. 26 of the Act to set aside the sale on such a ground has not done so. His judgment in appeal has not been laid before us and we do not know what reasons may have influenced him in his decision.

We feel bound to hold that the Plaintiffs have failed to make out a sufficient case for annulling the sale and we therefore confirm the judgment and decree of the Subordinate Judge and dismiss the appeal with costs.

We fix the vakil's fee in that appeal at Rs. 300.

Appeal dismissed.

S.C.S