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PETITIONER: GUNENDRA NATH MITRA

       Vs.

RESPONDENT: SATISH  CHANDRA HUI AND OTHERS.

DATE OF JUDGMENT: 02/12/1952

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR   42            1953 SCR  277

ACT:   Bengal  Land  Revenue  Sales   Act  (XI  of  1859),   ss. 6,13,14,37 Estate consisting of separate shares-Sale of  all the shares for arrears due from each-Whether sale of  entire estate-Purchaser’s  right  to  annul  under-tenures-Form  of notification of sale, importance of.

HEADNOTE:  Under  the  Bengal Land Revenue Sales Act (XI of  1859)  if this  Collector  proposes to sell the  entire  estate  where there  art  separate accounts for the several  shares  which constitute  the estate, he has first to close  the  separate account  or accounts or merge them into one demand and  then he  has to issue a notification for the sale of  the  entire estate  under  s.  6  of the Act and it  is  only  when  the Collector  has  followed this procedure that he  would  have authority to bring to sale the entire estate.   Where  a touzi was held in two shares in respect of  which separate accounts were kept in the Collector’s records  and, as  the  shares were in arrears a  notification  was  issued putting up for sale the two separate units of the estate and showing  the separate items of arrears due from  each  unit, and both the shares were sold:     Held,  that the sale cannot be treated as a sale of  the entire  estate  even though the two shares  constituted  the whole  estate,  and the purchaser was not  entitled  to  the privileges conferred on the purchaser of an entire estate by s.  37  of  the Bengal Land Revenue Sales  Act,  1859.   The notification issued under s. 6 of the Act was conclusive  as to  whether  the subject-matter of the sale was  the  entire estate or the separate shares constituting the estate.

JUDGMENT:  CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  173  of 1951.   Appeal from the Judgment and Decree  dated  February 22, 1949, of the High Court of Judicature at Calcutta (Blank and  Lahiri  JJ.) in Appeal from Original Decree No.  23  of 1944  &rising  out of Judgment and Decree dated  August  25, 1943,  of the Court of the Subordinate Judge,  Zilla  Midna-

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pore, in Title Suit No. 30 of 1941. Panchanan   Ghose  (S.N.  Mukharjee,  with  him)   for   the appellant. Sarat Chandra Jana and Bijay Kumar Bhose for respondent No. 1. Arun Kumar Dutta for respondents Nos. 2 (b) and 15. 278 1952.   December2.  The Judgment of the Court was  delivered by MAHAJAN J.-The circumstances under which this ,appeal arises are as follows  Touzi  No. 2409 of the Midnapore Collectorate consists  of several  mouzas  including mouza Dingol.   The  annual  land revenue payable in respect of the entire touzi is Rs. 2,892- 8-0.  This touzi was distributed into two shares, one  being a separate account bearing No. 249/1 and the other being the residuary  share.  Both these shares came in course of  time to be held by a single person, viz., Jiban Krishna Ghosh and from  him  they devolved upon his two sons,  Sudhir  Krishna Ghosh  and  Sunil Krishna Ghosh, defendants 2 and 3  in  the present suit.  Both the two accounts were recorded in  their names as joint proprietors.  Under  touzi  No. 2409 there was a  patni  which  included mouza  Dingol.   In the year 1885 Kritibas Hui  purchased  a share  of the said patni.  His father Ramnath Hui  purchased some  transferable  occupancy  ryoti lands  under  the  said patni.  These lands are described in schedule " Ka " of  the plaint.   Kritibas Hui, while he was a  co-sharer  patnidar, purchased  some  transferable ryoti lands  under  the  patni described  in schedule " Kha " of the plaint.  Kritibas  Hui died in the year 1906 or 1907 and his father Ramnath died in the  year 1908 or 1909 soon after the death of his son.   On the death of Kritibas Hui, the plaintiff s, four in  number, being  his  sons and nephews, inherited the  patni  and  the other properties left by him.  Subsequently on the death  of Ramnath,   the  plaintiff  s  while  they   were   co-sharer patnidars,  inherited the aforesaid  transferable  occupancy ryoti lands under the patni purchased by Ramnath.  Occupancy  ryoti  lands in schedule " Ga " of  the  plaint were  purchased  by the plaintiffs by different  kabalas  on different   dates,  after  they  had  inherited  the   lands mentioned  in  schedules  " Ka " and " Kha  of  the  plaint. Similarly the niskar lands mentioned in schedule " Gha "  of the plaint were purchased by 279 the plaintiffs after they had taken the inheritance of their father  and grandfather.  By the same process they  acquired the  mokarrari  maurashi interest under  the  Bahali  niskar lands  of  Sree Ishwar Dwar Basuli  Thakurani  mentioned  in schedule "Una" annexed to the plaint.  On  the  22nd  April, 1938, by  a  registered  kabala  the plaintiffs   sold  their  interest  in  the  patni  to   one Upendranath  Pal.  Upendranath Pal thus became the  patnidar of the six anna share that was held by the plaintiffs  prior to  the  year 1938.  The rest of the interest in  the  patni which  had been acquired by Satish Chandra  Hui,  respondent No. 1, was also sold to one Gouranga Sundar Das Gupta  along with  Upendranath Pal.  The plaintiffs thus ceased  to  have any interest in the patni and remained in possession of  the lands  in  the  status of  occupancy  ryots  or  undertenure holders.   When  the  plaintiffs in the year 1938 sold  their  patni interest  they  were  heavily indebted  to  their  landlords Sudhir Krishna Ghosh and Sunil Krishna Ghosh for arrears  of patni  rent.  On the 25th March 1939, the landlords filed  a

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suit claiming a sum of Rs. 16,835-3-6 as arrears of rent due to  them from April, 1935, to March, 1939, in the  court  of the  subordinate  judge of Midnapore  against  the  recorded patnidars  (viz.,  the plaintiffs) without  recognizing  the transfer  made  by them.  While this suit was  pending,  the landlords  failed to pay the March kist of the  revenue  and cesses  of the touzi in both the accounts, with  the  result that both the undivided half shares of the touzi represented by  separate  account No. 1 and by  residuary  account  were advertised  for sale on 24th June, 1939, under section 6  of the Bengal Land Revenue Sales Act (XI of 1859).  The  notice advertising  the  sale is Ex.  H. It notified  sale  of  the shares  in  the estate as such and did not  state  that  the entire estate would be sold.  In column of the  notification the arrears due from the two shares were entered separately. Both  these  shares  were actually sold on the  issue  of  a single notice and at a 280 single sale and were purchased by defendent 15 the appellant before  us.   The  sale  certificate  shows  that  what  was certified  to have been purchased by the appellant  was  the separate account share as also the residuary share making up between them the totality of the touzi.  On the 9th January, 1940, defendant 15 (the appellant)  in exercise  of  the  rights conferred by  section  37  of  the Revenue  Sales Act as purchaser of an entire estate  in  the revenue  sale  served a notice on the  maha  expressing  his unequivocal  intention to annul and avoid all  under-tenures including  patnis  and darpatnis.  On the same  date  he  is alleged  to have taker possession of some plots of  land  in possession on under-tenure holders, encumbrance holders  and niskardars.   The  revenue sale held on 24th June, 1939, has lead to  a crop of litigations.  As already stated, the land lords  had sued  for the recovery of the arrears of rent due  from  the patnidars, viz., the plaintiffs, before the sale took place. That suit was decreed on the 14th May, 1940.  An application was made for execution of the decree on 21st June, 1940,  by attachment  and sale of certain plots in possession  of  the judgment-debtors On behalf of the judgment-creditors it  was contended  that the entire touzi having been sold under  the revenue sale, the purchaser had become entitled to annul the tenure  under  section 37 of the Revenu Sales Act and  as  a matter  of fact had annulled the same and  consequently  the tenure  itself having expired, section 168-A of  the  Bengal Tenancy  Act  did not apply and the  decree  was  executable against other properties of the judgment-debtors.  This con- tention  was  upheld  by  the  subordinate  judge  but   was negatived in appeal by the High Court, and it was held  that the revenue sale was a sale of the shares on the touzi under section 13 of the Revenue Sales A and the purchaser did  not acquire  any  right  to  and the tenures,  he  not  being  a purchaser  of  the entire estate as such and  therefore  the patni  being  in  existence,  the  decree-holder  could  not execute the decre 281 for arrears of rent of the patni against other properties of the  judgment-debtors.  (Vide Satish Chandra Hui  v.  Sudhir Krishna  Ghosh  (1), decided in February, 1942,  during  the pendency  of  the present suit).  The appellant  was  not  a party to those proceedings.  For  the  second  time the question whether  at  the  same revenue sale defendant 15 purchased the entire estate or two separate  shares  only  arose  in  a  case  wherein  he  was impleaded as a party.  Bimal Kumar Hui and another brought a

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suit  some time in the year 1941 for establishment of  their rent-free  title  in certain lands and for  confirmation  of their  possession.  The present appellant was  impleaded  as defendant  2  in the suit as purchaser of the touzi  and  as claiming   to  have  annulled  the   plaintiffs’   interest. Defendant 2 pleaded that an entire touzi had been  purchased by  him at the revenue sale and he had  thereafter  annulled the   interest  held  by  the  plaintiffs  and   they   were disentitled to relief as they had no subsisting interest  in the plots of land claimed by them., This plea was  negatived up  to the High Court and the plaintiffs’ suit was  decreed. (Vide’ Gunendranath Mitra v. Bimal Kumar Hui (2) decided  in September,  1948).   Harries C. J. and Chakravarti J.  in  a very  well  considered  and reasoned  judgment  reached  the conclusion that the revenue sale in favour of the  appellant was  a sale of two separate shares under the  provisions  of section  13 of Act XI of 1859 and not of the  entire  estate and  that  he  -had not acquired the.  right  to  annul  the encumbrances under section 37 of the Revenue Sales Act.  The third occasion on which the effect of the revenue sale held  on 24th June, 1939, came up for consideration  by  the High  Court  arose in the suit which has given rise  to  the present  appeal.   On the 28th June,  1941,  the  plaintiff- respondents, Satish Chandra Hui and others, instituted title suit  No.  30  of  1941  for  a  declaration  of  title  and confirmation  of possession of certain plots of land in  the court of (1) (1942) 46 C.W.N. 540. (2) (1949) 53 C.W.N. 428. 282 the  subordinate  judge of Midnapore.  There was  the  usual preliminary  skirmish between the parties antecedent to  the suit,  resulting in proceedings under section 144,  Criminal Procedure  Code.  Possession of the paddy crop growing on  a number  of  plots was taken by the District  Magistrate  and eventually  under the orders of the High Court the crop  was handed  over to defendant 1, an employee of  the  appellant. In  this  suit  the  present  appellant  was  impleaded   as defendant  15.   In  the  plaint it  was  averred  that  the plaintiffs were in possession of the plots of land mentioned in  schedules  "  Ka", " Kha" and " Ga " of  the  plaint  as occupancy tenants, that in respect of the lands mentioned in schedules " Gha " and " Una they had niskar rights and  that as  in the revenue sale the appellant did not  purchase  the entire estate he was not entitled to annul the patni and the other  tenures  or  the  rent-free  grants;  and  that   the plaintiffs   having   transferred  the   patni   rights   to Upendranath   ,Pal  which  still  subsisted,  none  of   the encumbrances could be said to have been extinguished.   The  appellant pleaded that he was the purchaser  of  the entire  touzi at the revenue sale held on 24th  June,  1939, and  had  acquired  the  power  to  avoid  and  annual   the encumbrances and that by a notice duly published on the  9th January,  1940, he had annulled all under-tenures  including the patni and that the transfer of the patni to  Upendranath Pal  was a benami transaction and that even if it  was  held genuine  the plaintiffs’ rights in the ryoti land  had  been extinguished  as the ryoti rights had merged with the  patni rights under section 22 of the Bengal Tenancy Act as it  was in force before its amendment in 1928 and that by a sale  of the  patni  to Upendranath Pal. the  plaintiffs’  rights  in those  lands  stood  transferred to him and  they  were  not entitled to maintain any suit in respect of those plots.  The trial judge decreed the suit in respect of some of the plots  detailed  at  page  144  of  the  paper,-book.    The

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plaintiffs’  claim  in respect of other lands  mentioned  in schedule " Gg " of the plaint was dismissed. 283   Plaintiffs  were  also  given a decree  for  Rs.  416-4-0 against defendant 1 on account of the paddy of 55-1/2 bighas of  the land out of schedules."Ka ", " Kha " and " Ga ",  to which  they  had proved their title and of which  they  were entitled  to recover khas possession.  It was held  that  at the  revenue  sale  the entire touzi did  not  pass  to  the appellant and he had acquired no right to annul or avoid the under-tenures  and encumbrances, that the ryoti holdings  of the  plaintiffs had merged in the patni and had  passed  to, Upendranath  Pal  on the sale of the patni to  him  on  22nd April,  1938, but that Upendranath Pal had  resettled  these lands  with the plaintiffs and they being settled the  ryots of the village had acquired occupancy rights in these plots. The  plots of land described in schedule Ga " were  held  as not assessed to revenue and that being so, -defendant 15 was held not entitled to possession of these niskar lands.  Defendant 15 preferred an appeal to the High Court against the judgment of the subordinate judge, while the  plaintiffs preferred  cross-objections.   The  appeal  and  the  cross- objections  were  both dismissed by the High Court  and  the findings  of  the  trial  judge  were  maintained.   It  was contended  before  the  High Court that  the  revenue  sale, though  held  in fact under section 13 of Act  XI  of  1859, should be deemed to have been held under section 3 and  that the  appellant had acquired all the rights of the  purchaser of  an  entire estate.  The High Court negatived  this  con- tention  and observed that on a plain reading of section  13 the  contention  could  not  be  sustained,  the   essential conditions for the exercise of jurisdiction under section 13 being  the existence of a separate account or accounts,  and the  liability  of the entire estate for  sale  for  revenue arrears and that both these conditions having been fulfilled in this case, the Collector rightly proceeded under  section 13  to  sell the shares and that the  additional  provisions mentioned  in the second paragraph of the section need  only be  complied  with in cases where there does exist  a  share from which no arrear is due it was further 37 37 284 hold that though the old occupancy rights of the  plaintiffs merged in the patni and passed to Upendranath Pal after  the sale  of the patni to him, the action of Upendranath Pal  in realizing  the  rent  from  the  plaintiffs  amounted  to  a resettlement and that by his action he had conferred a right of  tenancy upon the plaintiffs who being settled  ryots  of the  village acquired a right of occupancy in all the  lands in respect of which rents were realized.’ This decision  was announced by the High Court on the 22nd February,’ 1948, and is in appeal before us on a certificate granted by the  High Court on 25th August, 1960.   For  the  fourth  time  the same  question  came  up  for consideration before the High Court after the decision under appeal  and the view expressed in its earlier  judgments  by the High Court was followed. [Vide Gowranga Sundar v. Rakhal Majhi (1).]   Mr. Ghosh for the appellant argued two points before us : (1)  that  defendant 1 5 being the purchaser  of  an  entire estate  at a revenue sale had all the rights conferred  upon him  by section 37 of the Bengal Land.  Revenue  Sales  Act, and  all under-tenures stood annulled and plaintiffs had  no rights  in the lands in suit in which they had no  occupancy rights,  and (2) that the plaintiffs were not entitled to  a

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decree on the basis of the resettlement of land, which  case was never made out by them, and which was inconsistent  with the  pleadings  and evidence and that on  the  facts  proved there could not be any legal inference of resettlement.    In  our  opinion, neither of these contentions  is  well founded.   Section  6  of  Act XI  of  1859  authorizes  the Collector  after  the  latest day of payment  fixed  in  the manner  prescribed in section 3 of the Act has  expired,  to issue  a  notification specifying the estates or  shares  of estates  which  have to be sold for recovery of  arrears  of revenue,  and  further authorizes him to put  up  to  public auction on the date notified for sale, the estates or (1) (1951) 55 C.W.N. 66. 285 shares of estates so specified.  The contents of the notifi- cation issued for the sale in question in unambiguous  terms indicate  that two separate units of the estate  from  which separate items of arrears’ were due were notified for  sale. No entry was made in the notification in the column meant to be  filled  in when the entire estate is to be  put  up  for sale.   In  the face of these facts it was conceded  by  Mr. Ghosh  that the sale in fact took place as provided  for  in section  13 of Act XI of 1859 and what was actually  put  up for  sale were two separate shares in the estate which  made up  the  totality  of  the  estate.   The  learned  counsel, however,  contended that the sale should be deemed  to  have been  of  an  entire estate, as both the  shares  sold  con- stituted  the totality of the estate and because section  13 could  have  had no application to a case wherein  both  the accounts  were  in default, the section  having  application only  in cases where there at least exists a share  that  is not  in  default  and which  needs  protection  against  the default  of  the, other co-sharers.  This  argument,  though attractive,  is fallacious.  To hold that a sale,  which  in fact was of two different accounts, is to be deemed to be  a sale of the entire estate would be tantamount to  converting a   fact  into  a  fiction  by  a  judicial  verdict.    The notification  under section 6 issued by the Collector  must, in our opinion, be considered as conclusive on the point  as to  what the subject-matter of the sale was,  i.e.,  whether what  was  sold was the entire estate or  two  shares.   The appellant  is  really  on the horns of a  dilemma.   If  the contention  of  his  learned counsel that the  sale  by  the Collector  of  shares of the estate was  not  authorized  by section  13  is taken seriously, the sale would  then  be  a nullity as under none of the provisions in the Revenue Sales Act such a sale could be held in the manner adopted and  the appellant would have no title under it whatsoever; if such a sale  is authorized by section 13 of the Act, then it  gives him  no rights to annul the undertenures.  In either  event, be cannot resist the plaintiffs’ suit.  In our judgment,  it has been rightly held 286 in the courts below that the appellant at this revenue  sale did not become the purchaser of the entire touzi as such and did not become entitled to the privileges conferred on  such a  purchaser  by the provisions of section 37 of Act  XI  of 1859.   The  contention  of  Mr. Ghosh  that  the  provisions  of section 13 are not attracted to a case where all the  shares in an estate are in default and that in that event the  only authority  that the Collector has is to put up  for  auction the  entire  estate  is  again, in  our  opinion,  not  well founded.    Before the Revenue Sales Act was passed in 1869  estates

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were  being put up for sale for arrears irrespective of  the question whether the majority of the cosharers had deposited their  shares of the revenue or whether the amount  due  was large  or  small.  The cosharers who had paid  their  shares within  the due date were affected seriously by such  sales. Provision   was  therefore  made  in  1859   for   affording protection to the cosharers who were willing to pay and had’ paid their share of the revenue.  On the application of  the parties  the  Collector began to keep a record  of  separate accounts  in  the  names of the  different  cosharers.   The liability  of  the  entire estate for the  total  amount  of revenue  was  not in any way affected by  this  arrangement. ’The only privilege given was that if the cosharers had  got separate  accounts  opened in the collectorate  the  revenue apportioned for the particular cosharers would be receivable by the Collector.  At the initial stage the shares belonging to  such of the cosharers who duly paid the amount  allotted in their share would not be put up to sale even if there  be a default on the part of one or more of the other cosharers. Only  the  defaulting separate accounts would be put  up  to sale in the first instance.  If the Collector found that the total  amount of the revenue in arrears was  not  realizable from  such  sale, he would thereupon stop the  sale  of  the defaulting  share  and give notice that  the  entire  estate would  be  put  up to  sale.   The  paramount  consideration governing the whole of this Act is to preserve intact the 287 ultimate  security  of  government for  the  revenue  demand against  the estate.  By permitting the opening of  separate accounts  the Act seeks to give recorded sharers of a  joint estate  an easy means of protecting their shares  from  sale for-  the  default  of  their cosharers,  but  there  is  no ultimate  protection  if  the  government  demand  is  still unsatisfied.   Even  in cases where all the  shares  are  in default, this protection cannot be denied because the amount of arrears due from them may be different sums of money.  Sections 13 and 14 of the Act on which the argument  rests are in these terms:    13."  Whenever  the  Collector  shall  have  ordered   a separate  account  or accounts to be kept for  one  or  more shares  if  the  estate shall become liable  ’to  sale,  for arrears  of  revenue,  the Collector  or  other  officer  as aforesaid  in  the first place shall put up, to  sale  only, that  share  or  those shares of  the  estate  from  which,, according to the separate accounts, an arrear of revenue may be due.    In  all such cases notice of the intention of  excluding the  share  or shares from which no arrear is due  shall  be given  in the advertisement of sale prescribed in section  6 of  this Act.  The share or shares sold, together  with  the share  or shares excluded from the sale, shall  continue  to constitute  one  integral estate, the share or  shares  sold being charged with the separate portion, or the aggregate of the several separate portions, of jama assigned thereto."  14.  If  in  any  case of a sale  held  according  to  the provisions of the last preceding section the highest   offer for the share exposed to sale shall not equal the amount  of arrear  due thereupon to the date of sale, the collector  or other  officer as aforesaid shall stop the sale,  and  shall declare  that the entire estate will be put up to  sale  for arrears  of  revenue  at  a  future  date,unless  the  other recorded  sharer  or sharers or one or more of  them,  shall within  ten days purchase the share in arrear by  paying  to the  Provincial  Government the whole arrear due  from  such share.

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288 If  such  purchase  be completed,  the  Collector  or  other officer  as  aforesaid  shall  give  such  certificate   and delivery of possession as are provided or in sections 28 and 29  of this Act to the purchaser or  purchasers,  who  shall have  the same rights as if the share bad been purchased  by him or them at the sale.  If no such purchase be made within ten days. as  aforesaid I  the entire estate shall be sold, after  notification  for such period and publication in such manner as is  prescribed in section 6 of this Act."  The  concluding words of section 14 furnish a key  to  the construction  of these sections.  When a contingency  arises in  a case, where two separate accounts have been  kept,  to sell an entire estate, a fresh notification has to issue  in accordance  with  the  provisions of section 6  of  the  Act notifying  that  the  entire estate is  for  sale.   In  the absence of such a notification a sale of an entire estate is not authorised in such a case.  Section 13 thus empowers the Collector  where  separate accounts are kept,  to  sell  the shares  in  default as such, there being no  scope  for  the operation of paragraph 2 of the section where all-the  shar- ers’ are in default.  There is nothing in that section which disentitles  the Collector where two separate accounts  have been  kept  and both of them are in default, to  notify  for sale the separate accounts for recovery of arrears due  from each  of  them separately, or to  bring  several  defaulting shares  to sale all at once without following the  procedure laid down in section 13.  If the Collector proposes to  sell the  entire  estate, where there are several  accounts,  the first  step he has to take is to close the separate  account or accounts or merge them into one demand and the next  step would  be  to issue a notification for sale  of  the  entire estate under section 6 and it is only when the Collector has followed  this  procedure that he would  have  authority  to bring to sale the entire estate and not otherwise . In  this case  no such thing was done.  The demands against  the  two shares  were not merged into one item and the entire  estate could not 280 be sold for two separate demands.  It could only be notified for  sale for recovery of a single sum of arrears  due  from the  entire estate.  In our judgment, therefore, it  is  not right to hold as was contended by Mr. Ghosh that a sale  for arrears  of  revenue is not a sale under section  13  unless there  is a share from which no arrear is due and  unless  a notice of the intention of excluding that share is given  in the  advertisement of sale under section 6 of the  Act  that that share is excluded from sale.   The  second point of Mr. Ghosh that no  inference  should have  been  drawn in this case that the lands in  suit  were resettled by the purchaser of the patni on the plaintiffs is also  without force.  The facts from which an  inference  of resettlement has been drawn by the courts below were alleged in the plaint and on those facts such an inference could  be justifiably raised.  The plaintiffs had been paying rent  to the  purchaser of the patni on the land in their  possession and  this was accepted by the purchaser as if they were  his tenants.  In those circumstances the absence of a  ’specific pleading as to resettlement could not in any way be said  to prejudice  defendant  15’s  case.   Upendranath  Pal  having treated the plaintiffs as tenants, defendant 15 has no right to  question their interest and it must ’be held that  their claim was rightly decreed in the courts below to the  extent that they were able to establish it.

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 The  appeal  before us was limited to the plots  of  land which  were  not covered by the sanads  or  regarding  which plaintiffs  hid  not  been  able to  prove  that  they  were occupancy  tenants.  In view of our findings,  however,  the appeal even as regards those plots has no merits. For  the  reasons  given  above  the  appeal  fails  and  is dismissed with costs.                     Appeal dismissed. Agent for the appellant: Sukumar Ghose. Agent for respondents Nos. 1, 2 (b) & 15; S. C.Bannerjee. 290