This is an appeal by the defendants in a suit for declaration of title to immoveable property and for recovery of possession thereof. The subject matter of the litigation belonged originally to the predecessor in interest of the Appellants. In 1883, the property was sold under the Public Demands Recovery Act and was purchased by Asutosh Chackrabartty. On default of payment of cesses the property was sold again in 1889 and passed into the hands of Bepin Chandra Dutt. Later on, default was again made in the payment of cesses and proceedings were taken under the Public Demands Recovery Act, with the result that at a sale held on the 14th March, 1898 Rangalal Bose became the purchaser. The Plaintiffs Respondents took a conveyance from Rangalal Bose on the 15th January, 1900, but in the year following, apprehensive that their title might be challenged by the representatives of Bepin Chandra Dutt, they took another conveyance from them. The Plaintiffs now claim to recover possession from the representatives of the original owner. In the Courts below, a question was raised as to the identity of the lands now in dispute with those sold in 1883 and 1889. That question has now been set at rest and it has been finally held by the Subordinate Judge-that the subject matter of litigation was sold successively in 1883, 1889 and 1898. The Court of first instance, however, found that the sale of 1898 was illegal and invalid and consequently did not create a title enforceable as against the representatives of the original owners. Upon appeal the Subordinate Judge has reversed the decision of the Court of first instance and made a decree in favour of the Plaintiffs. But he has not expressly decided the question of the legality of the sale of 1898. That sale has been attacked before us on four grounds; namely, first, that as the certificate under sec. 10 of the Public Demands Recovery Act was issued in the name of the original owners, namely, Kalachand Bera and his brother, whose interest had been sold out in 1883 and had successively vested in Asutosh Chakrabarty and Bepin Chandra Dutt, no title vested in Rangalal Bose as the purchaser of the right, title and interest of the persons named as judgment-debtors; secondly, that as no notice under sec. 10 of the Public Demands Recovery Act was ever served, the sale did not affect the interest of the owners; thirdly, that as at the time of the sale, one of the judgment-debtors was dead, his interest did not vest in the purchaser; and fourthly, that as the Deputy Collector illegally refused to record an order for cancellation of the sale, although an application was made as contemplated by law and the necessary amount was deposited, the sale must be deemed inoperative and ineffectual.
In so far as the first of these grounds is concerned, it cannot be disputed that, as laid down by their Lordships of the Judicial Commitee in the case of Mahomed Abdul Hai v. Gujraj Sahay(1), the purchaser at a sale under the Public Demands Recovery Act acquired nothing beyond the right, title and interest of the persons mentioned as the debtors in the certificate drawn up by the Collector. The question thus arises, whether Gora Chand Bera and Kala Chand Bera in whose names the certificate was issued on the 2nd December, 1897 had any interest in the property at the time. Primâ facie, their interest in the property at the time had been extinguished in 1883, and Asutosh Chakrabartty had become the owner of the property. But it has been found by the Subordinate Judge that notwithstanding the sales of 1883 and 1889, the original owners continued in occupation of the disputed property. Their possession was undoubtedly adverse to that of the purchasers at the sales under the Public Demands Recovery Act. Consequently in 1895 the original owners reacquired title in the property by adverse possession. It follows that when in 1897 the certificate was drawn up in the name of Gorachand and Kalachand, they were the persons liable to pay the Government demands, and, consequently the purchaser Rangalal Bose in 1898 acquired their right, title and interest in the property. The first ground upon which the sale is questioned cannot be supported.
In so far as the second ground of attack is concerned, it has been argued that the notice required by sec. 10 of the Public Demands Recovery Act was not served upon the judgment-debtors. It is not disputed that if such a notice was not served, the effect would be to invalidate the sale and would leave it open to the original owners, when dispossessed, to recover possession of the property within 12 years from that date. (Puma Chandra Chatterjee v. Dinabandhu Mukherjee(2). But the Subordinate Judge has found that the notice was duly served. No doubt, there is no direct proof of the service of notice. But the return of the serving officer has been produced, and it states on the face of it that the notices were delivered to the judgment-debtors who acknowledged receipt of the service. This is primâ facie proof of due service of notice, and, so far as we can gather, no effort was made to contradict this evidence. We must take it that notice under sec. 10 was duly served. The second ground also fails.
In so far as the third ground is concerned, it is not disputed that the judgment-debtor Kalachand Bera died on the 10th March, 1898. At the time of the sale, this fact was brought to the notice of the Court but the Court proceeded to sell the property. On this, it has been argued, that the sale did not operate to affect the interest of Kalachand Bera; and in support of this proposition reliance has been placed upon the cases of Ramasami v. Bagirathi(3), Krishnayya v. Unnissa Begum(4), Groves v. Administrator General(5). These cases, when analysed, do not assist the Appellants. No doubt, the learned Judges who decided these cases observed in their judgments that the sale in question was void and inoperative a but they nevertheless proceeded to set aside the sale. On the other hand, it was laid down by a Full Bench of the Allahabad High Court in the case of Sheo Prosad v. Hira Lal(6), which was accepted as good law in Peari Lal Singh v. Chandi Charan Singh(7), that the effect of the omission of the Court to bring on the record the legal representatives of the judgment-debtor who has died after attachment and before sale amounts to irregularity and does not necessarily invalidate the sale, although upon appropriate proceedings taken the sale may be set aside. This view is in accord with that taken by their Lordships of the Judicial Committee in Malkarjun v. Narhari(8). Their Lordships point out that there can be no question that the omission to serve notice on the legal representatives is a serious irregularity sufficient by itself to entitle the Plaintiffs to vacate the sale. But there may be defences to such a proceeding, and justice cannot be done unless those defences are examined by legal methods. Their Lordships point out in a subsequent passage that if the sale is a reality at all, it is a reality defensible only in the way pointed out by law; and the case must fall either within sec. 311 of the Code of 1882 or within Article 12(a) of the Limitation Act of 1877, or within both; so that, in any way, there exists a bar by one year's delay. In the case before us, therefore, the sale must be taken to be a voidable sale which could have been avoided by the persons affected, either by a proceeding under sec. 311 of the Code of 1882 or by a suit instituted within the period of one year from the date of sale. No such proceeding has been taken and the time within which appropriate proceedings might have been taken has elapsed. Consequently it is not open to the Defendants to impeach the validity of the sale by way of defence and as we have already explained, it is not open to them to ignore the sale. This is in accord with the principle explained in the case Ramsona v. Sonamala(9). The third ground accordingly fails.
In so far as the fourth ground is concerned, we notice that the Court of first instance proceeded on the apprehension that sec. 310A of the Code of 1882 is applicable to a sale held under the Public Demands Recovery Act. It has not been disputed before us that sec. 310A is not applicable; its operation is expressly excluded by sub-sec. 2 of sec. 19. It was consequently open to the judgment-debtors or their representatives to proceed under sec. 21. Under that section, they are bound to deposit, not merely the amounts stated in certificate as mentioned in cl. (a) and the penalty as mentioned in cl. (b), but also the outstanding charges due to Government as mentioned in cl. (c).
As far as we can gather, the judgment-debtors failed to deposit the amount mentioned in cl. (d). But even if it be assumed for argument that they tendered the full amount contemplated by sec. 21 and that their offer was improperly rejected by the Collector, his order might have been revised by the superior Revenue authorities, or possibly the party prejudiced by the alleged illegal order of the Collector might have obtained his remedy by way of a regular suit, appropriately named and instituted in the Civil Court. But it is not necessary to decide what steps might have been taken to set right the erroneous order of the Collector. It is sufficient to say that no such steps were taken and it is not open to the representatives of the judgment-debtor now to urge that the sale was a nullity, not at any rate as against the Plaintiffs who are apparently bonâ fide purchaser for value from the purchaser at the sale held under the Public Demands Recovery Act. The fourth ground cannot consequently be supported.
The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.
Appeal dismissed.