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PETITIONER: LUKA MATHAI (DEAD) BY LEGAL REPRESENTATIVE

       Vs.

RESPONDENT: NEELAKANTA IYER SUBRAMONIA IYER

DATE OF JUDGMENT: 26/05/1970

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) RAY, A.N. PALEKAR, D.G.

CITATION:  1972 AIR  383            1972 SCR  (1) 977

ACT: Travancore  Revenue  Recovery Regulation 1 of 1068  M.E.  s. 32(2)--Agricultural land hypothecated to government sold for non-payment  of  loan--Wrong  survey  numbers  mentioned  in proclamation  of  sale--Sale not vitiated  it  identity,  of plots  not in doubt--Misdescription whether resulted in  low price--Sale is vitiated when plots other than those hypothe- cated are sold along with those hypothecated.

HEADNOTE: The appellant hypothecated certain agricultural lands to the Travancore  State Government against loans received by  him. On his failure to repay the loans the plots in question were notified  for  sale after notice to the appellant.   In  the proclamation  of sale the number of plot no.  545/32A-1  was wrongly  mentioned as 545/32-11/1 and the number of Plot  of plot  no.  537/3 was wrongly mentioned  as  532/3.   Certain other plots held by the appellant although not  hypothecated to the Government were also sold.  The appellant presented a petition  to the Division Peshkar challenging the  aforesaid revenue  sale without success.  The appellant then  filed  a suit  for  setting  aside the sale  and  redemption  of  the mortgage.   The trial court partly decreed the suit  holding that  the  sale  was a nullity.  The  High  Court,  however, reversed   the  judgment  and  dismissed  the  suit.    With certificate  appeal was filed in this Court.  The  appellant contended : (i) that the revenue sale was a nullity  because in  effect and substance no proclamation of sale was  issued in as much as wrong revenue numbers were mentioned  therein. (ii)  that  on  account of  wrong  numbers  being  mentioned property worth.  Rs.1.00,000 had been sold for a meagre  sum of  Rs.4,510;  (iii)  that  under  the  Travancore  Recovery Regulation the property in question could not be brought  to sale and (iv) that the Government had no authority to attach and  sell plots which were never hypothecated  -and  thereby the whole sale was vitiated. HELD  :  (i)  The  ;ale of the  survey  numbers  which  were hypothecated to the Government was not vitiated by the  mere fact  that the survey numbers relating thereto were  wrongly mentioned.   It was only a case of misdescription and  their identity was never in doubt. [634 C-E]

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Sheodhvan  Sineh  v. Muhammat Kuer [1962] 2 S.C.R.  753  and Thakur  Barhma v. Jiban Ram Marwarl (1913) L.R. 41 I.A.  38, applied. (ii)  There  was no material to show that the  property  was ever  valued at more than Rs.30,000.  Considering  the  fact that  the  plots in question were mortgaged  the  price  for which they were sold was not low. [634 H] (iii)  The point that the dues under the bond could  not  be recovered  as arrears of land revenue was not raised at  any earlier  stage.  The court could not set aside the  sale  on this  ground  because  it it had  been  raised  earlier  the Government  may well have relied on the power of sale  Riven under the bond.  The fact that the sale took place under the machinery  provided by the Revenue Recovery  Regulation  and not  under  any ad hoc machinery set up  by  the  Government could not vitiate, the, sale. [635 G] 630 (iv)  However,  the appeal had to be allowed  and  sale  set aside on the ground that the bonds did not give power to the Government to sell the properties other than those mentioned in  the  bonds.  All the properties-those  hypothecated  and those not hypothecated--were sold in one lot.  This vitiated the sale and the Court had no option but to declare the sale of all the properties void. [636 A-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 542 of 1967. Appeal  from the judgment and decree dated January 24,  1964 of the Kerala High Court in Appeal Suit No. 368 of 1959. M.  C.  Chagla, Ganpat Rai and Manuel T. Paikeday,  for  the appellant. A. R. Somanatha Iyer, N. Narayanaswami, K. N. Bhat and M. R. K. Pillai, for the respondent. The Judgment of the Court was delivered by Sikri,  J.  This appeal by certificate granted by  the  High Court of Kerala is directed against its judgment and  decree reversing  the  judgment and decree of the Trial  Court  and dismissing  the  suit of the original  plaintiff,  appellant before  us.  The relevant facts for determining  the  points raised  before  us by Mr. Chagla. learned  counsel  for  the appellant, are -as follows. On December 5, 193 1, the plaintiff executed a hypothecation bond in favour of the Travancore Government in respect of  a loan of Rs. 6,000/-.  On December 12, 1931, another bond was executed  in respect of a further loan of Rs.  4,400/-.   On May 28, 1932, the plaintiff executed an-other  hypothecation bond  in favour of the father of Neelakanta lyer  Subramonia Iyer,  respondent  before us.  In  the  Government  gazettes dated February 21 1939, and April 25, 1939, under  paragraph 6 reference is made to the arrears of Rs. 4,193 chs. 19  ca. 9  plus interest under the special loan to be paid  by  Luka Mathai of Pallithanathu, Kottayam Taluk, and the sale of  97 acres of nilam comprised in survey 545/32-11/1 and 14  cents of purayidam comprised in survey 532/3. A notice was issued to the plaintiff in March or April, 1939 (27-8-1114  M.E.) that as he had to repay Rs. 4,193 chs.  19 ca. 9 under the special loan plus the executio costs and the interest thereon "it is hereby made known that 107 acres  84 cents of properties belonging to you and comprised in survey numbers  545  /  32-11/1, 481/3 ,  481/4A,  481/4C  etc.  of Pulinkunnu  Pakuthy and which were attached will be sold  in auction  on 27th Medam, 114." On May 10, 1939,  the  revenue auction   took  place  and  the   respondent-purchased   the

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properties in dispute for Rs. 4,510/-. 631 The plaintiff presented a petition (Ex.  M) to the  Division Peshkar  against the revenue sale.  In this petition it  was stated as follows :               "I  received notice stating that the sum  will               be  realised  by  auctioning  the   properties               comprised   in  Survey   545/32-11/1,   481/5,               481/4A, 481/4C of Pulinkunnu Pakuthy.  Knowing               that  the  aforesaid property  in  Survey  No.               545/32  A-1, which belongs to me and  which  I               had given as security to Government was  going                             to be sold in auction on 27th Medam la st,  many               persons  had come forward to bid the  same  in               auction.   But the. properties that were  sold               in  auction  are the properties  comprised  in               Survey numbers 545/32 11/2, 481/5, 481/4A  and               481/4C." He  further stated that "since the auction was conducted  in this  manner  the properties worth about Rs.  30,000/-  were sold in this auction for a paltry sum of Rs. 4,500/- odd." The  sale was, however, confirmed by the  Division  Peshkar. The sale certificate (sanad) was issued to the respondent on November  13, 1939.  The sale certificate was  executed  and issued  under s. 34 of Regulation I of 1068, in  respect  of the properties including the properties in dispute,  namely, 97 acres of nilam comprised in Survey No. 545/32-A/1 and  14 cents of purayidam comprised in Survey No. 537/3. On  August 5, 1941, partition suit (O.S. No. 102 of  11  16) was instituted and judgment was delivered by the Trial Court in  this suit on September 29, 1952.  Reference is  made  to this  judgment  because basing itself on this  judgment  the plea of res judicata was raised by the defendant in the High Court. The  suit  out of which the present appeal  arises,  namely, original  suit No. 492 of 1953, was filed for setting  aside the  sale and redemption of the mortgage.  The  Trial  Court partly decreed the suit holding that the sale was a nullity. The  High  Court,  as  stated  earlier,  has  reversed  this judgment and dismissed the suit. The learned counsel for the appellant raised- the  following points  before us : (1) that the revenue sale was a  nullity because in effect and substance no proclamation of sale  was issued inasmuch as instead of mentioning the proper  revenue numbers of the land, namely, survey No. 545/32-A-1.,  survey No.  545/32-II/1  was mentioned and in place  of  mentioning survey  No. 537/3 survey No.. 532/3 was mentioned; (2)  that the  property valued at Rs. 1,00,000/- had been sold  for  a meagre  sum  of Rs. 4,51O/-, (3) that under  the  Travancore Revenue, Recovery Regulation this 632 property  could  not be brought to sale; and  (4)  that  the Government  had  no authority to attach and  sell  plaint  A schedule items 2 to 5 and B schedule items 1 and 3 to 8  and C schedule items, which were not given as security under the bonds; and if the Government had no authority then the  sale of all the properties is void. Coming  to  the first point, there is no  doubt  that  wrong revenue  numbers were mentioned in the notice dated  May  5, 1939.  In the proclamation issued under s, 32 of  Regulation 1  of 1068 after. mentioning the amount of Rs. 4,193 ch.  19 c.  9  which was due the properties were  described  in  the schedule  to the proclamation (ex.  AB).  In column 1  under the  heading  (name  in  which  the  assignment  is  made  :

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Thandapper  and  number)  is mentioned  "1861  Luka  Mathai, Pallithanathu Kainadi Muri, Neclamperur." Survey No.  545/32 is described as Nilam and tenure as Pandaravaka Pattom.  The area  is 97 acres and taxes are also mentioned.  There is  a dispute  whether against the survey No. 545/,32  the  letter ’A/1’ existed or ’11/1’ as in the original proclamation, but there  cannot be any dispute that otherwise the  description of  the  property  of  97 acres  is  correct  and  complete. Regarding survey No. 537/3 again the tenure is described  as Pandara  Pattom, area 14 cents and the local taxes are  also given. In his evidence the plaintiff stated               "I was aware that the property mortgaged by me               was   the   property  comprised  in   S.   No.               545/32/Al.   It is being called as  97  acres.               That  which was mortgaged was also  97  acres.               In addition to All have no other properties in               S. No. 545/32." He  was  asked : Does any person other than you  have  nilam which is 97 acres in extent?  He answered : "No.  There  are no  other  persons  having 97 acres of nilam  in  the  other (numbers also." The  High  Court referred to some  earlier  proceedings  for recovery  of the defaulted amounts, due to  the  Government, which  took  place in III 0 M.E. and 1 1 12 M.E.  and  found that  in  those cases the correct survey  numbers  had  been given.  But as far as the proclamation in question  relevant to the present sale are concerned, the,High Court found               "But the proclamation which have been produced               as Exts.  AB, AD & AE all show some correction               by over-writing on the character ’A’ in S. No.               545732/  A/  1 and the figure ’7’  in  S.  No.               537/3.  The Proclamation that was published in               the  Gazette  on 12-9-1114  gives  the  Survey               Numbers distinctly as 545/32/11/1 633               and  532/3.  Likewise in the sale notice  Ext.               J. in the copy that is served on the plaintiff               the  S. No. is shown as 545/32/11/1  while  in               the original it is 545/32/ A/1, but one cannot               be sure whether A has been corrected or not." The  High  Court  however came to the  conclusion  that  the description  of  the property _in the relevant  records  was sufficient  to identify the property correctly and  to  give the requisite information to the intending buyers.  The High Court  held that Ext.  M, the relevant portion of  which  we have   extracted  above,  shows  that  the   plaintiff   had categorically stated that many persons knew for certain that survey  No.  545/32/A/1  which  had  been  hypothecated   to Government  was coming up for auction sale on May 10,  1939, and  that  the mistakes in the survey  sub-division  numbers even  if  they existed at the material time had  not  misled anybody  and  everybody  concerned knew  that  the  property proceeded  against  was  really survey  No.  545/32/A/1  and 537/3.  The High Court further observed that it had not been shown in the case that the mis-description of survey numbers has  caused  any  Teal prejudice to  the  plaintiff  in  the revenue sale concerned.  The High Court observed               "There  is no case that in the piece  of  land               bearing  survey No. 545/32 the  plaintiff  had                             any  other  plot  than that  bearing the  sub-               division  No. A/1 or that there is a piece  of               land bearing the sub-division II/1 therein." The High Court finally concluded

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             "An error in the survey number of the property               involved  in a proclamation of sale cannot  be               held to be such a vital defect as to compel us               to  hold  the  sale  to  be  one  ’without   a               proclamation’  at all and to declare the  sale               void on that score, especially in view of  the               fact  that, even according to  the  plaintiff,               nobody was misled by that error." We  agree  with  this finding of the  High  Court.   We  are satisfied  that  on the material placed before us  no  other finding could be arrived at. The learned counsel referred to us a number of cages to show that  if there is no publication of proclamation  then  that would  vitiate  the  sale.   The  learned  counsel  for  the respondent  referred  us to the decision of  this  Court  in sheodhyan  Singh v. Muhammat Kuer.(1) Relying on  this  case the learned counsel says that it (1) [1962] 2 S.C.R. 753. 634 was  a  case of misdescription and not a  case  of  mistaken identity.   He further says that the valuation suggested  by the  learned counsel is highly exaggerated ’because  in  his plaint  even the plaintiff had only said that the value  was Rs.  30,000/-.  In that case the final decree for sale in  a mortgage suit and in the certificate for sale the number  of the property in dispute was given as No. 160 instead of  No. 1060,  which  was  the  real number  but  the  property  was otherwise  fully  described so that its  identity  could  be clearly  established.   This Court held that "as  the  khata number,  the  area  and the boundaries given  in  the  final decree and in the sale certificate tally with No. 1060,  the identity  is clearly established and there has only  been  a misdescription of the plot in the final decree as well as in the  sale certificate by the omission of one zero  from  the ’Plot  number  ."  In  another  passage,  referring  to  the decision of the Privy Council in Thakur Barmha v. Jiban  Ram Marwari(1)  Wanchoo, J., observed that "the effect  of  this decision is that where there is no doubt as to the  identity and there is only misdescription that could be treated as  a mere irregularity." It  seems to us that it is clear from the details  mentioned in the proclamation, which we have mentioned above, that the bidder,  the owner and the auctioner had no doubt about  the identity of the property which was being sold.  This was not a  case  of  a  non-publication  of  the  proclamation  and. therefore. the rulings relied on by the learned counsel  for the appellant have no application. Under S. 32(2) of the Travancore Revenue Recovery Regulation (Regulation 1) of 1068 what is required is that "previous to the sale, the Tehsildar shall issue a notice specifying  the name  of the defaulter, the position, tenure and  extent  of land  and  the  buildings therein;  the  amount  of  revenue assessed  on  the land or upon its different  sections;  the proportions  of the Public Revenue due during the  remainder of  the  current  Malabar year, and  the  time,,  place  and conditions  of the sale." In our opinion,  the  proclamation satisfies the requirements of S. 32(2). in view of the above conclusion it is not necessary to  rely on the point of res indicate made by the High Court. Regarding  the  second point, there is no material  to  show that  the value of the property was anywhere more  than  Rs. 30,000/-.   In view of the fact that the property  had  been mortgaged  to Government and to private parties, we are  not satisfied  that the property was sold at a low  price.   The Trial Court has found that no fraud has been proved.

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(1) (1913) L.R. 41 I.A. 38, 635 The  third  and  fourth  points  arise  out  of  the  cross- objections filed by the plaintiff-appellant before us.   The High Court disposed of the cross-Objections in the following words               "The plaintiff has preferred a cross-objection               pleading  that the revenue sale ought to  have               been  declared void with regard to  the  other               items  of  properties included in  the  plaint               schedule  also.   Admittedly  they  were   the               subject-matter    of   the   attachment    and               proclamation  which culminated in the  revenue               sale.  No defect in the proceedings except the               error in -the Survey Numbers discussed  above,               to effect the validity of the revenue sale has               been  brought  to  our  notice.   The   cross-               objection  has  no merits and has only  to  be               dismissed." It  is  not  quite  clear  whether  the  third  ground   was specifically taken in the cross-objections though ground No. 5  may  perhaps  cover  it.  Be that  as  it  ’may,  as  the questions  of jurisdiction and law are involved we  have  to deal  with the point.  Section 59 of the Travancore  Revenue Recovery Regulation (Regulation No. I of 1068) reads thus :               "59.   All  arrears of Public Revenue  due  to               Government other than land revenue,                all moneys due from any person to  Government               which  under a written agreement  executed  by               such  person  are recoverable  as  arrears  of               Public  or  Land  Revenue,  and  all  specific               pecuniary   penalties  to.which  such   person               renders himself liable under such agreement,               and  also  all  sums  declared  by  any  other               Regulation  for the time being in force to  be               recoverable  as  arrears  of  Public  or  Land               Revenue,               may be recovered under the provisions of  this               Regulation." The learned counsel for the plaintiff contends that there is no  written agreement which says that the moneys  due  under the  bond  can  be recovered as arrears of  public  or  land revenue.   The  learned counsel for the respondent  has  not been able to point out any such agreement and the only point he  urges  is  that this point was new  and  should  not  be allowed  to be taken.  No other regulation has been  brought to  our  notice  which  makes dues under  this  bond  to  be recoverable  as arrears of public or land revenue.   But  we are  unable to set aside the sale on this ground because  if the  point had been taken at an early stage  the  Government may  well have relied on the power of sale given  under  the bond.  The fact that the sale took place under the machinery provided  by the Revenue Recovery Regulation and  not  under any  ad  hoc machinery set up by the  Government  would  not vitiate, the sale, 636 But  the fourth point raised by the learned counsel for  the plaintiff  is  fatal for the respondent.  The bonds  do  not give  power to the Government to sell the  properties  other than  mentioned  in the bond.  The properties  mentioned  in plaint, A schedule items 2 to 5, B schedule items I and 3 to 8 and C schedule items were not given as security under  the bond  and the Government had no authority to sell them.   It is  conceded  on  behalf  of the  respondent  that  all  the properties  were  sold in one lot.  This,  in  our  opinion,

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vitiates the whole sale and we have no option but to declare that the sale of all the properties was void. In the result the appeal is allowed and the judgment of  the High  Court  set aside and the decree passed  by  the  Trial Court modified as follows :               "For the reasons stated in this judgment it is               hereby  declared that the proceedings such  as               revenue  sale,  etc.  in respect  of  all  the               properties  mentioned in the plaint  schedules               A,  B and C are void and are  accordingly  set               aside, that the plaintiff has the right to get               a release of the properties under the mortgage               deed  dated  15th Edavam, 1107  including  the               said properties; that the plaintiff do recover               the said properties from out of the possession               of the defendants ; and that the plaintiff  do               realise  from the defendants means profits  as               determined by the Trial Court." The parties will bear their own costs throughout. G.C.                                   Appeal allowed. 637