Harington, J.:— This is an appeal by an auction-purchaser against the judgment of the Subordinate Judge in favour of the Plaintiffs who sued to set aside a sale held for arrears of revenue.

The District Judge was of opinion that a particular payment of Rs. 30-1-0 made on September 12th discharged all arrears due on the estate, and that if this payment had been brought to the notice of the Collector he would have exempted the estate from sale—accordingly he decreed the suit and set aside the sale.

The facts are that the Plaintiff was in arrear in 1898 with the June kist when Rs. 46-8-6 was due. The last day of payment was June 28th. After that day, if the arrears were not discharged the estate was liable to be sold under sec. 3 of Act XI of 1859.

No payment was made until August 17th when a sum of Rs. 30-1-0 was paid on account of the June instalment leaving Rs. 16-7-6 due balance of a sum made up of revenue, road-cess and talabana.

On September 12th Rs. 30-1 was paid. This according to the challan was for “revenue of the mehal.” Accordingly it was credited in the books to revenue as payment of the kist which had to be paid by September 28th.

On September 16th the Collector's attention was drawn to the payment of Rs. 30-1-0 made on August 17th and after an enquiry as to how it came about that this had been accepted after June 28th made an order “accept all dues if paid within 3 days and exempt.”

On September 22nd he made a further order “applicant has not appeared since, so payment not accepted.”

The consequence was that the sale proceeded and the property was sold for a sum considerably less than its real value.

It is argued that if the Collector had known of the payment made on September 12th he would have exempted the property from sale on the 16th; further the payment made on the 12th was a substantial compliance with the Collector's order of September 16th. That order becoming effective the sale was illegal.

I do not think the Respondents' argument is sound.

First the condition on which the order was made was not fulfilled. The Plaintiffs did not pay off Rs. 16-7-6, nor direct that any portion of the Rs. 30-1-0 should be applied to the payment of that sum. The challan under which the Rs. 30-1-0 was paid bore several headings. Revenue, road and public works cesses, postal cess—the sum of Rs. 30-1-0 appears as revenue, while the spaces opposite the various cesses are blanks—on that it is impossible to say that the sum was not rightly credited to revenue in the books of the Collectorate inasmuch as the remitter had so appropriated it by the challan.

This disposes of the contention that the payment of the Rs. 30-1-0 was a compliance with the Collector's order: it was not: because the remitter directed it to be appropriated to an impost other than the balance of revenue and cesses.

But even assuming that the Rs. 30-1-0 might have been appropriated to the payment of the balance Rs. 16-7-6 even then that does not carry the Plaintiff home—for the estate became liable to be sold on non-payment of the June kist on June 28th, 1898—unless the Collector made an order under sec. 18 of Act XI of 1859 expressly exempting the estate from sale. Now an order under that section must be positive: the conditional order made on September 16th is not an order under that section.

It is useless to speculate whether the Collector would or would not have exempted the property from sale if he had received payment of the Rs. 16-7-6 He was not bound to do so: in fact he did not do so: the sale was therefore legal.

The Respondent next seeks to support the judgment of the learned Judge on the ground that the notices required by law were not given. Now it is enacted by sec. 33 that no sale shall be set aside or annulled on any ground which has not been “declared and specified” in an appeal to the Commissioner under sec. 25 of the Act. This section has now been repealed but such appeals are regulated of sec. 2 of Act VII of 1868 (B.C) as amended by Act VII of 1880 (B.C).

In this case the objection taken to the Collector was that the sale notification was not duly issued and served in the mehal.

In answer to this the Appellants contend that the Plaintiffs failed to prove that the notices were not duly issued and served. This objection I think is sound. The Plaintiffs allege that the sale held is illegal on certain specific grounds—the onus lies on them to establish those grounds and that they have failed to do. There was on the contrary evidence called by the Defendants to show that the proper notices issued.

Secondly, there is another difficulty in the way. By sec. 8 of Act VII of 1868 every certificate of title given to a purchaser under sec. 28 of Act XI of 1859 is conclusive evidence that all notices required to be served or posted have been duly served and posted; and it provides that the title of any person who has obtained such certificate shall not be impeached or affected by reason of any omission, informality, or irregularity as regards the serving or posting of any notice in the proceedings under which the sale was had.

In the present case a certificate was granted under sec. 28 and that certificate is conclusive as to the regularity of the service of the notices.

The learned Judge finds that there was no evidence that the notice required by sec. 6 was hung up in the Collectorate office or Judge's Court, or that the proclamation under sec. 7 was served in any of the numerous places mentioned in that section. He has overlooked the circumstance that the certificate relieved the Defendant from the burden of proving those matters.

These two petitions dispose of the Respondents' case on the question of notice: but if the Respondents' complaint to the Collector be given its ordinary signification it would be limited to an objection that the notices required by sec. 7 had not been duly issued and served. Those are notices to the raiyats, and in no seuse affect the sale, or the price to be got thereat.

I hold therefore that the judgment of the learned Sub-Judge was wrong and must be reversed: the appeal is allowed with costs.

Mookerjee, J.— I agree with my learned brother that the decree made in this case by the Subordinate Judge cannot be supported.

The facts which have given rise to the litigation out of which the present appeal arises, lie in a narrow compass and do not admit of any reasonable doubt. The Plaintiff-Respondents were the proprietors of zemindari Maugura Kathalbari, which bears Touzi No. 1079 in the Collectorate of District Purneah. The Government Revenue for the estate payable in four instalments amounts to Rs. 120-5-6 annually. The proprietors defaulted to pay what is described as the June instalment of 1898, namely, Rs. 22-9-2, the latest day of payment of which sum was fixed under sec. 3 of Act XI of 1859, as the 28th June 1898. On the 19th August 1898, they remitted to the Collector by postal money order a sum of Rs. 30-1-0, on account of the revenue of the mehal without specifying for which instalment it was intended; but on the 3rd September following, they presented an application to the Collector in which they prayed that the amount remitted might be received on account of the June instalment and the estate released from liability to sale. This application was put up before the Collector with a note by the Touzi Nazir that the total amount of Government dues upon the estate at the time, including revenue, cesses and other fees was Rs. 46-8-6. The Collector, therefore, recorded a note enquiring under whose orders the payment of Rs. 30-1-0 by the postal money order of the 19th August, had been received after the last day fixed for payment; to this the Touzi Nazir replied that the rules do not prohibit the payment of money after the last day, but the proprietor does not derive benefit from the payment. The Collector then passed the following order on the 16th September 1898:—

“The amount appears to have been credited nevertheless according to the above note; accept all dues if paid within three days, and exempt.” Six days later, the following further order was made by the Collector, on the 22nd September:—

“Applicant has not appeared since, so payment not accepted.”

It appears, however, that on the 12th September 1898, the proprietors had sent to the Collector by postal money order Rs. 30-1-0 for revenue of the mehal,” without any specification as to the instalment for which it was intended, and the sum had been credited in the Collectorate books against the September instalment of Rs. 30-1-4 on account of revenue, the last date of payment of which had been fixed for the 28th September 1898. If the fact of this payment had been brought to the notice of the Collector when he made his order of the 16th September 1898, and if he had been asked by the proprietors to appropriate it against the entire Government dues in arrears on that date, the Collector might, if he had so chosen, have accepted the payment and exempted the estate from sale. This was, however, not done, and on the 22nd September 1898, the estate was put up to auction by the Collector, and was purchased by the Appellants for Rs. 2,550. On the 3rd October 1898, the proprietors appealed to the Commissioner, who recommended to the Board of Revenue on the 28th November 1898 that the sale might be annulled on the ground of hardship, the Board, however, held on the 9th May 1899 that no case had been made out for their interference, inasmuch as the estate had not been exempted from sale merely by reason of the negligence of the agent of the proprietors, and returned the records of the appeals to the Commissioner for disposal Accordingly the Commissioner dismissed the appeal to him on the 6th June 1899, on which date, therefore, the sale became final and conclusive under sec. 27 of Act XI of 1859, and on the 17th July 1899, a sale certificate was granted to the purchaser under sec. 28 of Act XI of 1859. Meanwhile, on the 12th July 1899, the Respondents had commenced this action under sec. 33, to annul the sale on the ground that it had been made contrary to the provisions of the Act, and that they had sustained substantial Injury by reason of the irregularities complained of, because their estate, of which they estimate the value at Rs. 20,000, has been sold for Rs. 2,550. The learned Subordinate Judge has annulled the sale, and his decision is challenged in this appeal on behalf of the auction-purchasers on six grounds, namely, first, that it is not open to the Appellants to seek the reversal of the sale upon any grounds other than those declared and specified in their appeal to the Commissioner; secondly, that as no unconditional order of exemption was made by the Collector under sec. 18 of Act XI of 1859, the sale was rightly held; thirdly, that as a certificate of title has been given to the purchaser, under the provisions of sec. 28, such certificate is under sec. 8 of Act VII of 1868, B.C, conclusive evidence that all notices required by the Act to be served or posted, have been duly served and posted, and, that, consequently, it is not upon to the Respondents to impeach the validity of the sale on the ground that such notices have not been duly served and posted; fourthly, that the Respondents have not established by evidence that there have been any irregularities in the service of the notices; fifthly, that the Respondents have not proved that they have sustained substantial injury; and, sixthly, that they have not establised by direct evidence any causal relation between the irregularity complained of and the substantial injury alleged.

As regards the first ground urged on behalf of the Appellants, it is manifestly well founded, and borne out by the provisions of sec. 33 of Act XI of 1859, which lays down that “no such sale shall be annulled upon such ground, unless such ground shall have been declared and specified in an appeal made to the Commissioner under sec. 25 of the Act.” It is argued, however, on behalf of the Respondents that a general ground taken in an appeal to the Commissioner that the sale has been made contrary to the provisions of the Act, is sufficient compliance with the condition imposed by sec. 33, and in support of this proposition reliance is placed upon the observations of Mr. Justice Romesh Chunder Mitter and Mr. Justice Norris in the case of Bal Mukoond Lall v. Jirjudhun Roy, where one of the learned Judges is reported to have said that “if the petition of appeal to the Commissioner, instead of being as precise and elaborate as it is, had simply said that the sale had been made contrary to the provisions of the Act, and that the Plaintiff had sustained substantial injury, and confined itself to these two narrow statements, it would have been amply sufficient to have enabled the Plaintiff's to raise the point here to-day.” The observations referred to, no doubt lend some support to the contention of the Respondents; but if the learned Judges intended to lay down that it is open to a person to appeal to the Commissioner on the broad general ground that the sale has been made contrary to the provisions of the Act, to impugn the sale before him, on the basis of certain specific alleged irregularities, and then to seek to annul the sale by a suit under sec. 33 on the allegation of other irregularities, I regret I am unable to accept this view as well founded. Such a proposition appears to me to be Inconsistent with the principle which underlies the section, and, which is thus explained by their Lordships of the Judicial Committee in the case of Gobind Lal Roy v. Ramjanam Misser(2): “Giving, however, full weight to these considerations, their Lordships, having regard to the scheme of the Act and the express direction contained in sec. 33, are of opinion that in every case where a sale for arrears of revenue is impeached as being contrary to the provisions of Act XI of 1859, no grounds of objection are open to the Plaintiff which have not been declared and specified in an appeal to the Commissioner. Their Lordships desire to add that in their opinion it would have been most unfortunate if they had been compelled to adopt the construction placed upon the Act by the Courts in India. Sales for arrears of revenue are of constant occurrence, anything which impairs the security of purchasers at those sales tends to lower the price of the estates put up for sale. It is, therefore, of the utmost importance in the interest of the revenue-paying population of India that all questions that can arise as to the validity of a sale for arrears of revenue should be determined speedily, and that when the sale has been once confirmed by the Commissioner, the purchaser should not be exposed to the danger of having his sale set, aside on now grounds.” I must hold accordingly that no grounds are open to a Plaintiff in a suit for the annulment of a revenue sale under sec. 33 which have not been declared and specified in an appeal to the Commissioner and this view is in accordance with that taken by the Judicial Committee in the case of Lalla Gowri Sankar v. Janki Pershad(3) and by this Court in the case of Gobinda Chandra v. Sherjunnissa(4), Jahnovi Chowdhurani v. Secretary of State(5) and Deonandan v. Manbodh(6). If we now examine the grounds declared and specified by the Respondents in their appeal to the Commissioner, they may be analysed and reduced to two, namely, first, that there had been in substance an order by the Collector for exemption of the estate from sale under sec. 18 of the Act and, secondly, that the sale notification had not been duly issued and served in the mehal as required by sec. 7 of the Act; the Respondents must consequently be limited to these two grounds as the foundation of the present action. The first point taken by the Appellants must, therefore, be answered in their favour.

The second ground urged on behalf of the Appellants, namely, that in the absence of an unconditional order of exemption by the Collector under sec. 18 of the Act, the sale was rightly held, is intended to question the validity of the first of what I have just indicated as the two reasons to which the Respondents must be restricted in the present action for the reversal of the sale. In my opinion the question raised must be decided in favour of the Appellants. It has not been disputed before us and, indeed, cannot be successfully disputed upon the evidence, that the June instalment of revenue was not paid within the latest date fixed for payment, that is, the 28th June 1898. No attempt has been made to question the accuracy of the finding of the Court below that there was, accordingly, an arrear of land revenue due on that date. Consequently under sec. 3 of Act XI of 1859 the estate in arrear became liable to be sold at public auction to the highest bidder, and, under the last paragraph of sec. 6, no payment or tender of payment of the arrears made after sunset of the latest day of payment, could bar or interfere with the sale, either at the time of sale or after its conclusion. It follows, therefore, as pointed out by this Court in the case of Gobinda Chandra v. Sherajunnissa, that the payment made on the 19th August 1898 does not entitle the proprietors to claim as a matter of right that the liability of the estate to be put up to auction, terminated; it is necessary for them to show that an order of exemption of the estate from sale was made by the Collector under sec. 18 of the Act. But as was pointed out by the Judicial Committee in the case of Lalla Gowri Sankar v. Janki Pershad, an order of exemption under sec. 18 to be operative, must be an absolute order of exemption, and not an order conditional upon something being done or some payment being made. Their Lordships observed, that the section says it shall be competent to the Collector or the officer, at any time, before the sale, to exempt the estate from sale; the Collector is to record in a proceeding, the reason for granting exemption; although this may be done at any time, the reason should exist at the time the exemption is granted, and not be a fact which may happen afterwards, or an act which may or may not be performed.” Now it is obvious from the proceedings of the Collector which I have already set out, that no absolute order of exemption was made by him under sec. 18 of the Act. It is contended, however, by the learned Counsel for the Plaintiff-Respondents that the order of the 16th September 1898, though in form conditional was, in substance absolute, inasmuch as the payments upon which it was made conditional, had already been made by the money order of the 12th September and, that if this fact had been brought to the notice of the Collector, the order would have been differently drawn up. In my opinion this argument is fallacious for two reasons. In the first place, the order was admittedly conditional, and was intended by the Collector to be such; it is not open to this Court to examine the reasons upon which it was founded and to hold that the Collector ought to have made a different order; besides we cannot ignore the order of the 22nd September 1898, by which the previous conditional order was expressly revoked by the Collector. In the second place the argument rests entirely upon the assumption that it was open to the proprietors to treat the payment of the 12th September 1898 as payment of the dues mentioned in the order of the 16th September 1898; this assumption is clearly unfounded. As, I have already pointed out, when the payment of the 12th September was made there was no specification by the proprietors as to the manner in which it was to be appropriated, except that it was a payment for the “revenue of the mehal.” Upon receipt of the money, the Collector appropriated it to the revenue account, against the September instalment which had then apparently accrued due and in respect of which the latest date fixed for payment was the 28th September. This appropriation was obviously rightly made, for the Collector was never asked by the proprietors to appropriate the payment in satisfaction of “all the dues” mentioned in the order of the 16th September which included not only revenue, but cesses and other charges. But we are not left to speculate as to the mode in which the payment, when it was made, was intended by the proprietors to be appropriated; for in the petition of appeal presented by them to the Commissioner on the 3rd October they stated expressly in paragraph 8 that this payment was intended to be a payment of the revenue for the September Instalment. The suggestion, therefore, that the sum paid on the 12th September ought to have been applied in satisfaction of the dues mentioned in the order of the 16th September is clearly an after-thought. There is no foundation for the contention that the payment was not rightly appropriated by the Collector, and consequently no foundation either for the argument that the conditional order of the 16th September was in substance an absolute order of exemption. I must hold accordingly that the sale cannot be successfully impeached on the ground that it had been held in contravention of an order of exemption duly made under sec. 18 of the Act.

The third ground urged on behalf of the Appellants, namely, that as a certificate of title has been given to them under sec. 28 of Act XI of 1859, such certificate is under sec. 8 of Act VII of 1868, B.C, conclusive evidence that all notices required by the Act to be served or posted, have been duly served and posted, is intended to question the validity of the second oft what I have indicated as the two reasons to which the Respondents must be limited in their endeavour to get the sale annulled. In my opinion the point raised must be answered against the Respondents who are not entitled to question the validity of the sale upon the ground that the notice required by sec. 7 of the Act to be served in the mehal or the estate in arrears, has not been duly issued and served. It is argued, however, by the learned Counsel for the Plaintiff-Respondents that sec. 8 of Act VII of 1868, B.C, has no application to this case inasmuch as it is their contention that no notice under sec. 7 of Act XI of 1859 was issued for service in the mehal, whereas sec. 8 assumes the issue and some service of a notice, though the service may be defective; in support of this position, reliance is placed upon the cases of Bal Mukoond v. Jirjudhun, Mobarak Lal v. Secretary of State(7), and Jahnovi v. Secretary of State. These decisions, however, are clearly distinguishable; they are authorities, no doubt, for the proposition that while sec. 8 of Act VII of 1868, B.C raises an irrebutable presumption that a notice required to be served has been duly served, it does not raise the further presumption that the notice itself is in accordance with law either as to its contents or as to the time of its service, or to take a concrete illustration, that it has been affixed not less than thirty clear days before the date fixed for sale as required by sec. 6 of Act XI of 1859. This doctrine has no application to a case like the present where the substance of the complaint is that the notice required by sec. 7 to be served in the estate in arrears, has not been served, which appears to me to belong precisely to the class of cases intended to be governed by sec. 8 of Act VII of 1868, B.C The view I take is supported by the decisions of this Court in the cases of Azimuddin v. Secretary of State(8), Sheorutton v. Net Lall(9), and Bageswari Pershad v. Khaja Mahamed(10), which last was eventually taken to the Privy Council. I may add that I am not unmindful of the observation of the learned Judges of this Court in Ganesh Pershad v. Pandey Birj Behari(11), which do not appear however to have any real application to the facts of this case; that case only decided that where no order was passed for the issue of a notification under sec. 5 of Act XI of 1859, and none, it was admitted, was actually issued, the defect was not cured by sec. 8 of Act VII of 1868, B.C, which might be invoked if objections were made to the due service and posting of the notice. But even if we assume that there is a well founded distinction between the issue and the service of a notice under sec. 7, and, that the provisions of sec. 8 of Act VII of 1868, B.C, apply only to the latter operation and not to the former, the Plaintiffs are in no better position. Neither party has adduced any evidence upon the question of the issue of the notice which was neither specifically stated in the fifth paragraph of the plaint nor is covered by the eighth issue raised in the Court below; and consequently as observed in the case of Sheorutton v. Net Lall (9), the presumption under sec. 114, cl. (e) of the Indian Evidence Act, until the contrary is proved would be that the notice had been issued and the onus would be upon the person who seeks to have the sale set aside, to establish that the requirements of the statute had not been complied with by the Collector. The third ground taken on behalf of the Appellants must, therefore, prevail.

The fourth ground taken on behalf of the Appellants is that the Respondents have not established by evidence that there have been any irregularities in the service of the notices. It is not necessary to discuss this point in detail, for, as I have already explained, the one notice to which the objection of the Respondents must be restricted, is the notice required by sec. 7 to be served on the estate in arrears, and the case as to that notice has already been discussed in connection with the third ground ??? The fifth ground urged, when the pay the ??? 12th September was made there was no specification by the proprietors as to the manner in which it was to be appropriated, except that it was a payment for the “revenue of the mehal.” Upon receipt of the money, the Colleotor appropriated it to the revenue account, against the September instalment which had then apparently accrued due and in respect of which the latest date fixed for payment was the 28th September. This appropriation was obviously rightly made, for the Collector was never asked by the proprietors to appropriate the payment in satisfaction jury by reason of the sale of their estate for Rs. 2,550.

The sixth and last ground urged on behalf of the Appellants is that the Respondents have not established by direct evidence any causal relation between the irregularities complained of and the substantial injury alleged. It has been argued, on the other hand, on behalf of the Respondents that direct evidence is not essentially necessary to establish that the substantial injury proved is due to the irregularities alleged, and, that it is open to the Court to draw a reasonable inference from the nature of the irregularity and the extent of the inadequacy of the price. Upon this question, there has been considerable divergence of judicial opinion, as is indicated by some recent cases; see for instance, Esmail Khan v. Abdul Aziz Khan (12) and Nibaran Chandra v. Chiranjib Prasad (13). Two reasons, however, render unnecessary an examination of this question for our ??? I must hold accordingly that the sale cannot be successfully impeached on the ground that it had been held in contravention of an order of exemption duly made under sec. 18 of the Act.

The third ground urged on behalf of the Appellants, namely, that as a certificate of title has been given to them under sec. 28 of Act XI of 1859, such certificate is under sec. 8 of Act VII of 1868, B.C, conclusive evidence that all notices required by the Act to be served or posted, have been duly served and posted, is intended to question the validity of the second of what I have indicated as the two reasons to which the Respondents must be limited in their complained of is that the sale proclamation was not served at some conspicuous place on the estate in arrears as required by sec. 7. Now as has been repeatedly pointed out by this Court, the notice in question is a notice to the raiyats not to pay their rent to the defaulting zemindar, and it is impossible to hold that the Respondents could suffer any loss by the omission of any body to give notice to their tenants not to pay their rent to them: See Gobinda Chandra v. Sherajunnissa, Mohamed Atahur v. Raj Chunder(14) and Azimuddin v. Secretary of State. The view that the notice under sec. 7 is intended for the protection either of the tenants or of the purchasers, at the revenue sale, or perhaps of both, receives considerable support from the fact that the title of the auction-purchaser takes effect, as is expressly stated in the form of the certificate of title given under sec. 28 (prescribed in Sch. A to the Act) from the day after that fixed as the last day of payment; it is obvious, therefore, that as the title of the purchaser relates back to the day following the date of default, it is essential that as soon as the default is made, the raiyats and the under-tenants should be apprised that the defaulting proprietor has no claim to any rent that may accrue after the default has been made, I must hold accordingly that even assuming that the notice required by sec. 7 to be served on a conspicuous part of the estate, was not duly served, the Respondents have failed to prove that the substantial injury they have sustained has been by reason of such irregularity.

The result, therefore, is that this appeal must be allowed, and the decree of the Subordinate Judge reversed. The suit will stand dismissed, and the Plaintiff-Respondents must pay the Appellants their costs both in this Court and in the Court below.

B.C

Appeal allowed.