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PETITIONER: PARMANAND AND OTHERS

       Vs.

RESPONDENT: GANPATRAO AND OTHERS

DATE OF JUDGMENT: 12/09/1962

BENCH:

ACT: Revenue Sale--Validity of--C.P. Land Revenue Act, 1947 (C.P. 2 of 1917), s. 149.

HEADNOTE: The  appellants  are  Lambardars  of  Mahal  No.2  of  Mouza Gujarkhedi, and they held therein an undivided share of  As. -/II /- and as they were found in arrears of land revenue to the  extent of Rs. 730/13/-, the property was sold  for  Rs. 600/-but the sale proclamation recited the amount of arrears due as Rs. 1345-9-0 and that the properties were being  sold for  29 recovering that amount.  It was contended by the appellants, that  it was open to them to have the sale set aside in  the Civil  Court  on the ground that the arrear  for  which  the property  was sold was not due.  The trial  court  dismissed the  suit  on the ground that the suit did not lie  and  the High Court affirmed the decision. Held,  that s. 149 (2) of the Act was plain and  unambiguous and that if the arrear in respect of which the sale was held was not due it gave a right to the owner of the property  to have  the  sale set aside in a Civil Court.  The  fact  that subsequent  to the sale proclamation but on the date of  the sale further amounts towards land revenue had become due was not material, the scheme of the Act being that in respect of each specific arrear separate proceedings had to be taken. Held, further, that mistakes and irregularities contemplated by the Act which would not furnish grounds for  invalidating and setting aside the sale were of a different kind and from the scheme of the Act it is clear that a sale for an  arrear that was not due was put in a separate category. Rewa Mahten v. Ram Kishan Singh (1886) L.R. 13 I.A. 106  and Ram  Prosad Choudhury v. Ram Jadu Lahiri, (1936)  40  C.W.N. 1054, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No, 110 of 1960. Appeal  by special leave from the judgment and decree  dated April 13, 1956, of the former Nagpur High Court in F.A.  No. 99 of 1947. Naunit lal, for the appellants. B.  A.  Masodkar,  B. D. Najbile and  Ganpat  Rai,  for  the respondents. 1962.   September  12.   The  judgment  of  the  Court   was delivered by GAJENDRAGADKAR,  J.-This  appeal by special leave  raises  a

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short question about the construction of section 149 (2)  of the   C.  P.-Land  Revenue  Act,  1917  (No  II   of   1917) (hereinafter  called  the Act).  The validity of  a  revenue sale  of  their properties held on February 27,  1941  under section  128(f) of the Act was challenged by the  appellants by their suit 30 . filed  in  the  Court of the  Additional  judge,  Nagpur  on November 12, 1946.  Ganpatrao Vishwanathji Deshmukh who  had purchased  the  properties  at the  said  auction  sale  was impleaded  as defendant No. 1 to the said suit.  During  the pendency of the litigation, the said Ganpatrao has died  and his  heirs  have been brought on the record.  They  will  be referred  to  as  respondent No. 1 in  the  course  of  this judgment.   The appellants challenged the impugned  sale  on five  different  grounds.  They alleged that  the  sale  was without jurisdiction; that as the final bid was not accepted by  the Dy.  Commissioner, it was invalid; that as the  sale was  brought  about  fraudulently by  respondent  No.  1  in collusion  with the Revenue Clerk, it was invalid;  that  as the  Commissioner was not competent to confirm the  sale  on November  13 1945, it was invalid; and that the  sale  could not be held validly for the recovery of Rs. 1,354/9/-  which was  shown  in the proclamation of sale as  the  arrear  for which  the  property  was  put to  sale.   The  trial  court rejected  all  the contentions raised by the  appellants  in impeaching  the  validity  of the sale and  so,  the  relief claimed by the appellants against respondent No. 1 by way of injunction restraining him from recovering possession of the property  and disturbing the appellants’ possession  thereof was rejected. The  appellants then preferred an appeal in the Nagpur  High Court.   The  High Court has confirmed the findings  of  the trial court and accordingly, the appeal has been  dismissed. It  is against this decree that the appellants have come  to this  Court by special leave; and the only point  which  has been  raised on their behalf by Mr. Naunit Lal is  that  the view taken by  the courts below that the impugned sale could not be effectively challenged by the appellants under  s.149 (2)  is not justified on a fair and reasonable  construction of the said provisions. The  material facts leading to this point are very few,  and they  are not in dispute.  The appellants are Lambardars  of Mahal No. 2 of Mouza Gujarkhedi, 31 Tehsil  Saoner,  District Nagpur, and they held  therein  an undivided  interest  of As. /11/- . On or about  October  4, 1940,  they were found to be in arrears of land  revenue  to the  extent of Rs. 730/13/-in respect of the suspended  Rabi kist of 1938-39 and the Rabi kist of 1939-40.  The Tehsildar of  Saoner  .made  a report on October 4, 1940  to  the  Dy. Commissioner  that  the  said  arrears  were  due  from  the appellants  and  asked for sanction to sell by  auction  the property  in suit.  ’Along with this report, a draft of  the sale  proclamation containing the relevant details was  also submitted  for the signature of the S.D.O. in case  the  Dy. Commissioner sanctioned the sale.  The S.D.O. forwarded  the said report to the Dy. Commissioner who accorded sanction to the  proposal  of  the  Tehsildar  on  December  17,   1940. Thereafter, on December 23, 1940. the S.D.O. signed the said proclamation  and  on getting the said documents  back,  the Tehsildar   ordered  on  January  7,  1941  that  the   sale proclamation should be published and that the sale should be held  on  February  26, 1941.  On that date,  the  sale  was adjourned  to February 27, 1941 for want of  adequate  bids.

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On the next day the sale was held and the property was  sold to  respondent  No. 1 for Rs. 600/-.  Ultimately,  the  said sale was confirmed.  It is common ground that though at  the relevant time, arrears due from the appellants amounted only to Rs. 730/13/-, in the Parchanama the said amount was shown as  Rs.  1,354/9/-  and the property in  fact  was  sold  to recover  the said amount of arrears under s. 128(f)  of  the Act.   The  appellants’ contention is that the  arrear,  Rs. 1,354/9/-,  for  which his property has been sold  under  s. 128(f)  was not due; what was due was the lesser amount  of, Rs.  730/13/- and so, the sale in question is invalid  under s. 149 (2) of the Act. In dealing with this point, it is necessary to refer to  the relevant provisions of the Act.  Chapter X of the Act  deals with  the  collection of land revenue, and  it  consists  of sections 122 to 160.  Section 124 32 confers power on the State Government to regulate payment of sums  payable under the Act and provides for the number  and amount of the instalments, and the time, place and manner of payment  of  any  sum payable under  a  settlement  or  sub- settlement, or otherwise under an assessment made under this Act.   Sub-section  (2) of s. 124 requires that  unless  the State Government otherwise directs, all such payments  shall be made as prescribed under sub-s. (1).  A notice of  demand can  be issued by Tehsildar or Naib Tehsildar under  s.  127 and  it may be served on any defaulter before the  issue  of any  process  under s. 128 for the recovery  of  an  arrear. Section  128  provides for the process for  recovery  of  an arrear   and  it  prescribes  that  an  arrear  payable   to Government  may be recovered, inter alia,...(f)  by  selling such estate, mahal or land, or the share or land of any  co- sharer  who  has not paid the portion of  the  land  revenue which,  as between him and the other co-sharers, is  payable by him.  Section 131 prescribes the procedure for attachment and sale of movables and attachment of immovable  property.. Then  s.  132 provides for holding enquiry  into  claims  of third  persons in respect of property attached or  proceeded against.  Section 138 (1) provides that the purchaser of any estate,  mahal,  share  or land sold  for  arrears  of  land revenue due in respect thereof shall acquire it free of  all encumbrances  imposed on it, and all grants  and  contracts. made  in  respect  of  it, by  any  person  other  than  the purchaser.   Sub-sections  (2),  (3)  and  (4)  make   other provisions, but it is unnecessary to refer to them.  Section 143  lays  down that if the arrear in respect of  which  the property is to be sold is paid at any time before the lot is knocked  down,  the  sale  shall  be  stayed.   Section  145 provides  for  application to set aside sale on  deposit  of arrear,  and  s. 146 provides for application to  set  aside sale for irregularity.  Under s. 148 it is provided that  on the  expiry  of  30  days  from  the  date  of  sale  if  no application  has  been made under section 145 or 146  or  no claim has been made under s. 151, or if  33 such  application or claim has been made. and rejected,  the Dy.   Commissioner shall pass an order confirming the  sale. Section 151 refers to claims of pre-emptions. That takes us to section 149. Section reads as follows :               "(1)  if no application under section  146  is               made  within  the time allowed  therefor,  all               claims  on  the  grounds  of  irregularity  or               mistake shall be barred.               (2)   Nothing in sub-section (1) shall bar the               institution  of a suit in the Civil  Court  to

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             set aside a sale on the ground of fraud or  on               the  ground  that  the arrear  for  which  the               property is sold is not due." It  would  thus  be seen that the  scheme  of  the  relevant provisions  of the Act in relation to revenue sales  appears to  be self-contained.  The revenue process  for  recovering arrears  begins with the report as to the arrears  and  ends with  the confirmation of sale.  Provision is made  for  the examination  of  claims  of third parties  as  well  as  for setting  aside sales on account of deposit or on account  of irregularities committed in conducting the sales., It is  in the  light  of this self-contained scheme that  s.  149  (1) provides that if no application under s. 146 is made  within the   time  prescribed,  all  claims  on  the   grounds   of irregularity or mistake shall be barred.  In other.  words’. the effect of this provision is that if a party aggrieved by a  revenue  sale  of his property  wants  to  challenge  the validity  of  the said sale on grounds  of  irregularity  or mistake, the Act has provided a remedy for him by s.146  and it he fails to avail himself of that remedy, it   would  not be  open to him to challenge the impugned sale on  the  said grounds by a separate suit.  The grounds of irregularity  or mistake  must be urged by an application made under  s.  146 and  if  no  such application is made,  then  the  party  is precluded from taking the said grounds otherwise.  Thus  far there is no difficulty or dispute. 34 Sub-section (2) of s. 149 provides an exception to ss.  (1), and  it  says that the institution of a suit  would  not  be barred in a Civil Court to set aside ’a sale on two grounds; if  the  sale is challenged on the ground of fraud,  a  suit will  lie; similarly, if a sale is challenged on the  ground that the arrear for which the property is sold is not due, a suit  will  lie.  The effect of this provision  is  that  if fraud is proved in regard to a revenue sale, a suit will lie and  the sale will be set aside; similarly, if it  is  shown that the arrear for which the property is sold was not  due, a suit will lie and the sale will be set aside.  There is no difficulty or dispute about this position also. The question on which the parties are at issue before us  is in  regard to the interpretation of the clause  "the  arrear for  which  the property is sold." It has been held  by  the High  Court that what this clause requires is not  that  the arrear for which the property is sold should be stated  with meticulous  accuracy,  if a mistake is made in  showing  the actual amount of arrear due from the defaulter for which the property  is  sold, that mistake would not render  the  sale invalid; it would be a mistake within the meaning of  ss.(1) and  so,  to  cases of that kind sub-section  (2)  will  not apply.  On the other hand, Mr. Naunit Lal contends that  the clause "the arrear for which the property is sold" is  plain and unambiguous.  In considering the question as to  whether this  clause  is attracted or not, one has to  look  at  the proclamation of sale and enquire whether the amount shown as arrears  due from the defaulter was in fact due or not.   If the  said  amount  was  not  due,  the  clause  will   apply notwithstanding the fact that a lesser amount may have  been due from the said defaulter. In construing s. 149(2) it is relevant to remember that  the provision  in question is made in relation to revenue  sales and there is no doubt that the revenue sales are  authorised to  be  held under the summary procedure prescribed  by  the relevant sections of the 35 Act, and so, it would not be unreasonable to construe  these

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provisions  strictly.   That is why we are not  inclined  to accept the view that in interpreting the relevant clause, we should  assume  that  the Legislature  did  not  expect  the authorities to specify the arrear for which the property  is sold  with meticulous care.  If the defaulter’s property  is being sold under revenue sale and the object of issuing  the proclamation is to show for what arrear it is being sold, it is,  we think, fair to assume that the said arrear  must  be stated  with absolute accuracy.  It would not be  enough  to say  that  some arrear was due and so, the  sale  should  be upheld though it was purported to be held for recovery of  a much larger arrear. Nor is this consideration purely academic.  As we have seen, s.  143 provides that if the arrear in respect of which  the property  is  to be sold is paid before the lot  is  knocked down, the sale shall be stayed.  In the present case, if the arrear  had  been  properly shown at  Rs.  730113/-,  it  is theoretically possible that the appellants may have been  in a position to deposit this amount before the lot was knocked down and the sale would have been stayed.  Since the  arrear was  shown to be much larger, it is  theoretically  possible that  the appellants could not make a successful attempt  to deposit the said amount.  Now, in working out the provisions of s. 143, there should be no difficulty in determining  the amount  which  the  defaulter has to deposit  to  avoid  the revenue  sale.   The arrear in question  must  be  correctly stated in the proclamation so that everybody concerned knows the  exact amount for which the revenue sale is held.   That is another consideration which supports the construction for which the appellants contend. Mr.   Masodkar  for  respondent  No.  1  argued   that   the construction for which the appellants contend is  mechanical and it may lead to anomalies.  In support of this  argument, he  took  the  illustration of a case where  the  amount  of arrears  is accurately shown in the proclamation, but  after the proclamation is 36 issued,  a part of it is paid by the defaulter;-(as in  fact Rs.  291/- were deposited by the appellants in  the  present case) the contention is that in such a case, if the original amount   ,of   arrears  continues  to  be   shown   in   the proclamation, the sale would be invalid on the  construction suggested  by the appellants.  We are not impressed by  this argument.  Our attention has not been drawn to any  specific provision  of the Act under which a partial payment  of  the arrear due is allowed +lo be made by the defaulter.  If such a  payment is made, it may, at best be treated as  deposited on  account, and no deduction would be made from the  arrear notified  to  be due from him in the  proclamation  at  that stage.  The only provision which has been cited before us in that behalf is s. 143 and s. 143 expressly provides for  the payment of the whole of the arrear due and lays down that on such payment before the lot is knocked down, the sale  shall be  stayed.   Therefore,  the  complication  sought  to   be introduced by Mr. Masodkar by taking a hypothetical case  of a  part payment of the arrears due from the defaulter,  does not affect the construction of s. 149(2). It  is then argued that the impugned sale cannot be said  to be  irregular in the present case, because on the date  when it  was, actually held, the amount of Rs. 1,354 /9/- was  in fact  due  from  the appellants as arrears.   It  is  common ground  that  after the proclamation was issued,  a  further amount of arrears became due from the appellants and on  the date of the sale, the total amount came to be Rs. 1,354/9/-. In  our  opinion, arrears accumulating. after an  order  for

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sale has been passed and the proclamation in that behalf has been   issued,  cannot  come  into  the  calculation   while construing  s.149 (2).  Every arrear for which the  sale  is ordered  must be specifically dealt with as provided by  the Act.   It  is  not open to the authorities to  deal  with  a specific  arrear  as prescribed by the Act and  to  pass  an order for sale of the defaulter’s property on the 37 basis  of  that  arrear  and then  add  to  it  subsequently accruing arrears without following the procedure  prescribed in that behalf.  Once the amount of arrear is determined and sale is ordered by reference to it, it is that amount  which must be shown in the proclamation and it is for that  amount of arrear for which the property must be sold.  That, in our opinion, is clearly the effect of the relevant clause in  s. 149  (2).  We must, therefore, hold that the High Court  was in  error in coming to the conclusion that the sale  of  the appellants’  property on the 27th February, 1941 was  valid. We  are satisfied that the arrear for which the  appellants’ property  was sold was not due within the meaning  of  s.149 (2), and so, the sale must be set aside. In support of his argument that the impugned sale cannot  be held to be invalid, Mr. Masodkar relied on a decision of the Privy  Council  in Rewa Mahton v. Ram Kishen  Singh(1).   In that  case,  the Privy Council was dealing with  a  question which  had reference to the true construction of s.  246  of the Civil Procedure Code of 1877 (Act X of 1877).  The  said section had provided that if cross decrees between the  same parties  and  for the payment of money be  produced  in  the Court,  execution shall be taken out only by the  party  who holds the decree for the larger sum, and for so much only as remains  after deducting the smaller sum.  It  appears  that contrary to the provisions of this section, an auction  sale was  held  and when the title of the  auction-purchaser  was challenged, it became necessary to consider that the  effect of  noncompliance with the provisions of s. 246 would be  on the title of the auction-purchaser.  The Privy Council  held that  a purchaser under a sale in execution is not bound  to inquire whether the judgment debtor had a cross judgment  of a  higher amount such as would have rendered the  order  for execution  incorrect.  If the Court has  jurisdiction,  such purchaser  is no more bound to inquire into the  correctness of an (1)  (1886) L. R. 13 I. A. 106. 38 order for execution than he is as to the correctness of  the judgment  upon which execution issues.  In other words,  the effect  of this decision is that if in contravention of  the provisions of s. 246 an executing Court orders a sale to  be held,    the   auction-purchaser   gets   a    good    title notwithstanding  non-compliance with s. 246.  We do not  see how this case can assist Mr. Masodkar in the present appeal. The  decision turned upon the construction of s.  246.   But the  present dispute has to be decided on a construction  of s. 149 (2).  It is wellknown that execution sales held under the  Code of Civil Procedure can be challenged only  in  the manner  prescribed and for the reasons specified,  say,  for instance, by O. XXI r. 89, 90 and 91.  The fact that certain irregularities  committed  during the conduct  of  execution sales  would  not render the sales invalid, flows  from  the relevant  provisions  of the Code and so, it  would  not  be reasonable to invoke the assistance of the decisions dealing with irregularities committed in execution sales in  support of  the argument that a revenue sale held under s.  128  (f) should be judged by the same principles.  The question as to

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whether  the revenue sale is valid or not must obviously  be determined  in the light of the relevant provisions  of  the Act  and that again takes us to the construction of  s.  149 (2). Mr. Masodkar had also relied on the decision of the Calcutta High Court in Ram Prosad Choudhury v. Ram Jadu Lahiri  (1)in support  of his argument that a revenue sale held  under  s. 128  (f)  of the Act would not be  rendered  invalid  merely because  the amount of arrears shown in the proclamation  is not accurate.  In the case of Ram Prosad Choudhury, the sale had  been  held  under the provisions  of  the  Bengal  Land Revenue Sales Act (Act XI of 1859).  Under s. 5 of the  said Act, notice had to be issued before the sale could be  held. In the notice. issued prior to the sale had been shown a sum which had then not become due as an arrear along with  other sums (1)  (1936) 40 C.W.N. 1054. 39 which  had become arrears, and the subsequent sale was  held on  the  footing of the total amount thus  shown  being  the arrears due.  It was urged that the sale was invalid because of  the  irregularity committed in the issue of  the  notice under s. 5. This argument was rejected and it was held  that despite the said irregularity, the sale was valid.  Now,  in appreciating the effect of this decision’ it is necessary to refer to the provisions of s. 33 of the said Act under which the  sale was challenged.  We have already referred  to  the fact  that s. 5 required a notice to be issued prior to  the sale.   The  notice  provided for by  this  section  had  to specify  the nature and amount of arrear or demand, and  the latest  date  on which payment thereof  shall  be  received. Section  33  provides that no sale for  arrears  of  revenue shall be annulled, except upon the ground of its having been made  contrary to the provisions of this Act, and then  only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of’; with the  rest of the section we are not concerned.  The argument which was urged  in  the  case of Ram Prosad Choudhury  was  that  the notice  under s. 5 having been irregularly issued, the  sale should  be  deemed  to  have  been  held  contrary  to   the provisions  of  the  said Act, and  this  argument  was  not accepted.  It would be noticed that s. 33 justifies a  claim for annulling the sale only if two conditions are satisfied; that  the  sale  should  have  been  made  contrary  to  the provisions of the Act and that the plaintiff must show  that he  has  sustained  substantial  injury  by  reason  of  the irregularity  complained of.  It is in the context of  these requirements  that  the Calcutta High Court  held  that  the inclusion of an amount in the notice which had not become an arrear on the date of the notice did not render the impugned sale invalid.  We do not think that this decision can assist us  in interpreting s. 149 (2) with which we are  concerned. The scope and effect of the relevant provisions of s. 149(2) are not at all similar to the scope and effect of 40 s.33  of the Bengal Act.  Therefore, we are not inclined  to accept Mr. Masodkar’s argument that the defect in the   sale on  which  the  appellants rely would not  render  the  sale invalid. The  result is, the appeal is allowed, the decree passed  by the  High  Court  is  set aside  and  the  appellants’  suit decreed, There would be no order as to cost throughout. Appeal allowed.

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