Mukerji and Guha, JJ.:— This is an appeal by the plaintiffs from a decree dismissing their suit.

The plaintiffs are two brothers who, as well as their uncle, the defendant No. 2, are shebâits of their family idol, Sree Sree Radhagobinda Deb Thakur. One of the debattar properties of the idol is a 14 annas 2 gandâs 2 karhâs share of an entire estate, No. 1246 of the Birbhum Collectorate, which goes by the name of lot Kutubpur and includes thânâdâri lands. This share constitutes a separate account property, being revenue paying estate No. 1246/1. It was sold at a revenue sale held by the Collector of Birbhum on the 28th March, 1924, and purchased thereat by the defendant No. 1. The shebâiti right of the two plaintiffs extends to a half of the said share and that of the defendant No. 2 to the other half.

On the 8th July, 1925, the plaintiffs commenced this action on a plaint, in which it was averred that there was bitter enmity and long-standing litigation between them and the defendant No. 2; that estate No. 1246/1 having fallen into arrears for non-payment of the revenue of the January kist of 1924, the estate was advertised for sale to be held on the 27th March, 1924; that, on that date, the defendant No. 2 sent his officer, Nimaichandra Ghosh to Suri and the plaintiffs also sent their officer there with money for their share of the revenue; that Nimaichandra Ghosh gave out that he would pay the amount of revenue together with such penalty as the Collector might impose and also filed a petition for that purpose before the Collector; that the plaintiffs' officer, believing that the revenue would be so paid in and finding that châlân for such deposit had been passed, made over the plaintiffs' share of the revenue to Nimaichandra Ghosh and came back; and that thereafter, Nimaichandra Ghosh, having thus succeeded in misleading the plaintiffs' officer and sent him away, did not deposit the revenue and fraudulently caused the estate to be put up for sale on the next day and got it purchased for the defendant No. 2 in the benâmi of the defendant No. 1. Certain irregularities and illegalities in the procedure adopted for the sale were also averred. It was also alleged that substantial loss was thus caused, as property worth Rs. 50,000 had been sold up for Rs. 18,100 only. The prayers were for setting the sale aside on a declaration that it was illegal, ultra vires and without jurisdiction, and for recovery of possession of the estate together with mesne profits.

The defendant No. 1 in his written statement, filed on the 29th October, 1925, denied that there were any irregularities or illegalities as alleged in the plaint, or that he was a benâmdâr for the defendant No. 2 or that there was any substantial loss.

On the 18th January, 1927, that is to say about a year and a half after the action was commenced, the plaintiff made a petition for amendment of their plaint. This amendment was allowed in spite of the objection of the defendant No. 1. The amendment in substance was that the plea of benâmi purchase was given up, and it introduced a statement to the effect that the plaintiffs had been subsequently informed that Nimaichandra Ghosh did not get the money, which he was expecting in order to make the deposit and upon that he entered into an arrangement with the defendant No. 1, under which the latter agreed to purchase the property at the sale and then to reconvey the same to the defendant No. 2 on receipt of Rs. 2,000 as his profits in the transaction. A prayer was added that the property should be reconvened to the idol on receipt of the said amount or such other amount as was considered proper.

In the additional written statement, which the defendant No. 1 filed on the 31st March, 1927, after the aforesaid amendment of the plaint, the said defendant denied the arrangement alleged.

The defendant No. 2 took no part in the suit.

[The judgment here dealt with the facts of the case and continued:—]

On that evidence, we are satisfied that it was a bona fide purchase made by the defendant No. 1 for his own benefit. The evidence, oral and documentary, as regards the source of the purchase money need not be discussed as the plea of benâmi has been abandoned, but we may say, once for all, that we can see nothing suspicious anywhere in that evidence.

Then arises the question whether the plaintiffs' story of their having sent their share of the revenue through an officer of theirs and that officer having been bluffed by the defendant No. 2's officer, Nimaichandra Ghosh, with the assurance that the revenue would be duly put in by him, is true. In view of the fact that the allegation of a benâmi purchase was withdrawn and in view of our finding that the defendant No. 1 was a bona fide purchaser, the question has lost all its importance.

[The judgment then dealt with the evidence on the point and continued:—]

In these circumstances and for the reasons given above we think we ought to hold that the story is not true.

What has been said above will give an idea as to our view of the facts of the case: shortly put it is this, that for some reason or other, the proprietors were not diligent or it may be that each was expecting that the other would pay, or it may again be that they were honestly expecting to be able to pay, but at the last moment the requisite amount was not available. We proceed next to consider the other points that have been urged in the appeal.

The main contention of the appellants is that the sale was without jurisdiction, inasmuch as there were no arrears. In the court below two documents were produced on behalf of the plaintiffs (Ex. 14 and Ex. 15) as affording foundation for the argument that there were no arrears. The Subordinate Judge was of opinion that these documents did not relate to the estate in question and that, even if they did, Ex. 14 would show that on the 12th January, 1924, on which date the arrears for which the sale took place were payable, the revenue for the months; of Ashwin, Kârtik and Aghrahâyan was in arrears. The Subordinate Judge was unable to connect the documents with the estate in question, because of the difference in the amount of revenue and, also because he thought that tâluk Fatehchand in parganâ Kutubpur, and not lot Kutubpur, was mentioned in them. The difference in the amount of the revenue may, not unreasonably, be explained by the fact that the estate subsequently lost some of its lands, of which fact, however, there is no evidence. And there is evidence that the word Fatehchand may be read also as Eatehpur (vide P.W No. 13). The conclusion of the Subordinate Judge on the question of identity, therefore, does not rest on any very sure foundation. But it is needless to pursue the matter further because the appellants themselves have resiled from the position they took in the court below and no longer contend that the documents relate to the estate in question. They have, on the other hand, relied on the Subordinate Judge's conclusion that the documents relate to some other mehâl; presumably, because they see that, if the documents be held to relate to the estate in question, they would, as pointed out by the Subordinate Judge, show that there were arrears due. The appellants have pressed before us the other contention, that they urged in the court below on the authority of the observations of Chatterjea, J. in Amrita Lal Roy v. Secretary of State for India, and have supplemented it by reference to the recent decision of the Judicial Committee in the case of Saraswati Bahuria v. Surajnarayan Chaudhuri. That contention is that, as the sale was for recovery of revenue due up to the Poush (i.e, December-January) talab (demand), the amount, though unpaid, was not an arrear of revenue within the meaning of section 2 of Act XI of 1859 until the 1st February and for payment of such arrears the last date fixed by the Board of Revenue under section 3, of the Act was the 28th March, and consequently there were no arrears on the date fixed for the sale. The decisions, upon which the appellants have relied, are entirely distinguishable on the facts. In Amrita Lal Roy's case, the observations of Chatterjea, J. were based upon the view that he took of the facts, viz., that upon the documents produced in the case and in the absence of the kistibandi governing the estate, the expression “January kist” or “January talab” was to be taken as meaning the date contemplated in section 2 of the Act. Their Lordships of the Judicial Committee in Saraswati Bahuria's case also did not intend to lay down any new law: their Lordships, on examining the materials on the record came to the conclusion that “the revenue was payable” in four instalments, viz., the 7th June, the 28th “September, the 12th January and the 28th March,” that the revenue payable on the 28th March became an arrear on the 1st April, of which the last date fixed for payment under section 3 of the Act by the Board of Revenue was the 7th June and so the sale on the 6th June was without jurisdiction. In the present case, a careful perusal of the papers of the Collectorate, and especially the notices, Exs. 13(a) to 13(f) and the arrear list, Ex. 18, distinctly shows the 12th January, 1924, as the last day for the payment of the revenue, which, in our opinion, can be nothing else than the last date contemplated by section 3 of the Act and is not the date of the instalments, according to the settlement and kistibandi of the mehâl, as contemplated in section 2 of the Act. The entries in the touzi ledgers (Ex. 16 series), upon which the appellants strongly rely, do not, in our opinion, militate against this view. It is quite true that the expression, “Poush talab” is used in the documents it should, however, be borne in mind that, since the proprietor is quite safe, so long as he pays the revenue by the last date for payment fixed under section 3 of the Act, the earlier date, on which it was payable under the settlement and kistibandi of the mehâl, lost in course of time all its importance and was lost sight of in practice and the last date fixed for payment under section 3 became all important. In our judgment, the expression, “Pousth talab,” used in the documents, is not the instalment for Poush according to the settlement and kistibandi of the mehâl, but the instalment for which the last date of payment, as fixed under section 3 of the Act, falls in Poush, and is loosely used to mean the instalment payable by the 12th January as so fixed. The books of the Collectorate showed the estate in arrears and the relevant entries therein may he presumed to be correct under section 114 of the Evidence Act having regard to illustrations (e) and (f) [Mahomed Solaiman v. Birendra Chandra Singh], and such books must be examined in order to arrive at a finding as to whether there were arrears or not [Jagdishwar Narayan v. Muhammad Haziq Hussain]. In the judgment of their Lordships in Saraswati Bahuria's case, the notice issued in that case, under section 7 of the Act, is set out and in that notice it was not the last day fixed for payment of the arrears under section 3 that was mentioned, but, on the other hand, it was stated that “Rs. 45-7-3 is due on account of arrears of revenue for the period ending the 21st Chait, 1326, corresponding to the 28th March, 1919.” These words, their Lordships held, would indicate that the date mentioned was the date of the settlement and kistibandi contemplated by section 2 of the Act. Their Lordships also considered the other materials on the record and they also supported that conclusion. Of course, the learned Judges of the Patna High Court, from whose decision the appeal was taken, had held that, as there was no necessity to state, in a notice under section 7, the date contemplated by section 2, the date given in the notice should be taken as the date fixed for payment under section 3 [See Suraj Narayan Chaudhury v. Saraswari Bahuria]; but their Lordships of the Judicial Committee did not take that view. The notices in the present case are entirely different. This contention of the appellants, therefore, must be overruled.

The Collector's jurisdiction to hold the sale has also been impugned upon several other grounds, to which reference will now be made. Firstly, it has been argued that the estate consisted of malguzâri lands and of thânâdâri lands and that for arrears due on account of revenue for malguzâri lands and on account of demands for thânâdâri lands, one sale could not be held. So far as this contention is concerned, it has no substance, because although in the Collectorate ledgers [Exs. 16 to 16(c)] separate accounts in respect of the said two items are kept, the A Register (Ex. 12) and the D Register (Ex. 8) show that the thânâdâri lands have been amalgamated with the malguzâri lands of the mehâl and they together form one estate as defined in section 1 of Act VII of 1868 and that the demands on the two heads have been amalgamated to form a total demand for the estate. Secondly, it has been contended that there was no mehâl named Huda Kutubpur Fatehpur, which was the name given in the notices, but that the real name of the mehâl was lot Kutubpur in parganâ Fatehpur. There is evidence that the mehâl is known by the former name. That is the name which it bears in most of the Collectorate papers. That again is the name, which the defendant No. 2 gave as of this mehâl in Ex. 2. Moreover, the number of the estate was also given in each of the notices, and there was not the least chance of anybody being misled as to its identity, nor indeed is there any evidence that anybody was in fact misled. Thirdly, it has been argued that, whereas the estate belongs to the idol, of whom the plaintiffs and the defendant No. 2 are only shebâits, they have been described in the papers as proprietors. This, if at all, is an irregularity of no substance. Fourthly, it has been contended the sale was without jurisdiction, because the Collector's order on the petition for exemption made by Nimaichandra Ghosh was illegal, being a conditional and not an absolute order of exemption; and the decision of the Judicial Committee in the case of Gauri Sanker Lal v. Janki Pershad has been cited in support of the contention. It is difficult to understand of what use this contention is to the appellants, because it is not their case that the order had the effect of exempting the estate from sale. Their Lordships, in that case, held that an order under section 18 of Act XI of 1859, for exempting an estate from sale for arrears of revenue, must be an absolute exemption, and not an order having effect as an exemption or not according to what may happen or be done afterwards, and that it must not depend on an act, which may or may not be performed. The Collector's order in the present case was: “Exempted on payment of all arrears and penalty Rs. 150 as a special case.” It was not an absolute order. But it only comes to this that there was no order under section 18 of the Act exempting the estate from sale. How that would vitiate a sale when it was held, the arrears not having been paid in the meantime, it is not possible to imagine. Fifthly, it has been contended that the adjournment of the sale to the next day was in contravention of section 20 of the Act and so the sale held was illegal. The order of the Collector as regards this adjournment was in these words:—“To-day was fixed for revenue sale: 4 sales were held out of 21 in the sale list. The proceedings could not be finished till 5 p.m It was brought to my notice that in the case of Touzi No. 1246/1 Huda Kutubpur Fatehpur with police (? lands) the defaulting proprietor, who was allowed exemption under section 18, of Act XI of 1859 on payment of all arrears and penalty, could not deposit the amount up to 5 p.m All the bidders have now left the court. The sale is, therefore, adjourned till tomorrow (noon) the 28th March, 1924.” It has been said that section 20 authorises the Collector to adjourn a sale when he is unable from sickness, from the occurrence of a holiday or from any other cause, to commence the sale on the day fixed or if having commenced it he is unable from any cause to complete it; and that the sale in the present case was adjourned to the next day on the ground that the Collector was unable to commence it on the date fixed, because he had to wait till 5 p.m for the deposit to be made, which was not a cause ejusdem generis with sickness or holiday and so the adjournment was illegal. In our opinion, this argument is based upon an erroneous interpretation of the section. The sale spoken of in the section is the sale proceedings of all the estates that are to be sold on the particular day. That sale had commenced, and 4 out of the 21 estates were sold. The other estates could not be sold because it was already 5 p.m and all the bidders had left, and the result was that the sale, which had been commenced, could not be completed. To this case the latter part of the provision quoted applies, and an adjournment in such circumstances may be granted by the Collector when “from any cause” he is unable to complete the proceedings. The expression “any other cause” in the former part of the provision means a cause ejusdem generis, but the expression “any cause” which occurs in the latter part need not be so. Sixthly, some argument has been advanced to show that the notices under sections 6 and 7 of the Act were not duly served. To this argument section 8 of Act VII of 1868 affords a complete answer. It is true that there is a note in the sale list showing that the notice under section 7 was not duly published as regards the mehâl in question, and there is a decision of this Court in the case of Rajrani Dassi v. Ganesh Prasad Srichandan Mahapatra, which says that section 8 of Bengal Act VII of 1868 would not debar one from proving that the notice had been served in a wrong mehâl in contravention of the Act. But non-service of a notice under section 7 of the Act, which is meant to forbid râiyats and under-tenants to pay rent to the defaulting proprietor, has no bearing on the question of and cannot affect the price fetched at the sale and is consequently immaterial in the present case. [Gobind Chundra Gangopadhya v. Sherajunnissa Bibi, Mahomed Azhar v. Raj Chunder Roy, Azimuddin Patwari v. Secretary of State for India in Council(4), Buksh Elahi v. Dwrlav Chandra Kar(5)]

Two other objections of comparatively minor importance were also urged. The objection, that 30 days did not elapse from the date of publication in Calcutta Gazette, does not even bear examination in view of the provisions contained in section 6 of the Revenue Sale Law. There is also no substance in the contention based upon the fact that the order for adjournment of the sale, to which reference has been made above, was signed by the Collector at the Lees Club and not at the Collector's office. The signature at the place mentioned did not affect the jurisdiction of Collector, nor did it in any way affect the sale that ultimately took place.

In conclusion, it is necessary to state, as regards the value of the property sold, that, though the Subordinate Judge has held that its fair price is Rs. 31,000, his calculations are based upon figures that are not correct and that on a proper calculation on the basis of the figures to be found in the valuation statement under the Cess Act (Ex. 11), the value would work out at somewhere about Rs. 22,000. We have not been able to find any materials on which we may hold that the price fetched at the sale was utterly inadequate or that the deficiency, that there was, was due to any irregularity or illegality.

The result, in our opinion, is that this appeal fails. It is accordingly dismissed with costs.

G.S

Appeal dismissed.