P L D 1952 Dacca 279 (PLP)

Sris Chandra Dutt, Amicus Curiae for Appellants. M. A sir for Imam Hossain Chowdhary for Respondent No. 1. GUHA, J.‑

This is an appeal by the plaintiffs and arises out of a suit for declaration that a revenue sale held on the 24th June 1940, is null and void and ultra vires and that there were various illegalities and irregularities in conducting the sale so the sale held on the 24th June 1940, is liable to be set aside. The plaintiff's case was that they were owners of 4 annas share of Touzi No. 1800 of the Faridpur Collectorate and a sum of Rs. 23‑3‑2 was the revenue payable for their separate account of 4 annas share of the Touzi. This sum of Rs. 23‑3‑2 was payable in two kisti, namely, Rs. 11‑11‑2 was payable on the 12th January, and the balance of Rs. 11‑8‑0 was payable on the 28th March, of every year. The plaintiff's case was that on the 26th March 1940, the plaintiffs paid Rs. 20 on account of revenue, and on the 28th March 1940, they paid Rs. 6 also on account of revenue, in all Rs. 26 in payment of revenue on or before the latest date of payment of March kisti of 1940, that is, by the 28th March 1940. This sum of Rs. 26 was received by the Collectorate but out of it, they appropriated a certain amount in payment of arrear of revenue for January kisti of 1940, and also a certain sum for the arrears of cesses due from the plaintiffs and that left a sum of Rs..6 only in payment of the sum due for the revenue payable in kisti March 1940. The plaintiff's case is that they did not know that out of the amount of Rs. 26, they deposited in March 1940, the Collector appropriated any amounts on account of arrear of revenue for kisti January 1940, and also for arrears of cesses and they had no knowledge that actually there were arrears for kisti March 1940. The plaintiffs then said that after the appropriation of those amounts the mahal was in arrear for Rs. 5‑8‑0 for kisti March 1940, and it was put up for sale in June following and was actually sold on the 24th June 1940, and purchased by the Government for a sum of Re. 1 and, there after, the Government took necessary steps for taking delivery of possession and took possession. The plaintiffs came to know of this sale and filed an appeal to the Commissioner of the Division but that appeal was dismissed as barred by time and that decision of the Commissioner was on the 10th September 1940. Thereafter, on the 23rd August 1941, they have brought this suit for setting aside that revenue sale as null and void and ultra vires as according to the plaintiffs, there had been no proper service of notice under section 5 of the revenue sale law and also that the sale was void as in fact there should not have been shown any arrears because the plaintiffs before the 28th March 1941 paid a sum of Rs. 26 on account of revenue though the revenue payable in the March kisti was a sum of Rs. 11‑8‑0 and if the Collector would not have deducted the alleged arrears of revenue and cesses, the estate Should not have been shown as in arrears and could not have been sold in law under the provisions of revenue sale law. Then there was a usual notice under section 80 of the Code of Civil Procedure, and, there after, the present suit was instituted. The suit was contested by the defendant No. 1, who is now the Province of East Bengal, and its defence was that the suit was not maintainable for defect of parties and in view of the provisions of section 33 of the revenue sale law, that the sale was duly held after due and proper service of the required notices which were not suppressed and that the sale was, in fact, for arrears of revenue due for kisti March 1940, and it was also stated by the Province of East Bengal that when the sum of Rs. 26 was received by the Collector in March 1940, he was perfectly justified in deducting therefrom the arrears of revenue which were due for kisti January 1940 and also the other arrears of cesses and after deducting those amounts, only a sum of Rs. 6 was credited for the payment of revenue of kisti March 1940, and the estate was in fact in arrears for a sum of Rs. 5‑8‑0 only. The learned Munsif who tried the case came to the conclusion that the suit was maintainable in the present form and there were no defect of parties nor was the suit barred under section 33 of the Bengal Revenue Sales Act, that evidently no notice under section 5 of the Revenue Sales Act was served and that the Collector had no jurisdiction to appropriate for arrears of January kisti and arrears of cesses out of the sum of Rs. 26 deposited in March 1940, which was paid as revenue for kisti March and in effect the learned Munsif held that the Collector went beyond his jurisdiction to divert any amount from the sum of Rs. 26 in payment of dues other than those for which the money was paid, namely, for payment of revenue due for kisti March 1940, and in that view the learned Munsif held that the Collector had no jurisdiction to put the property to sale in June 1940 and therefore, the plaintiff's suit was decreed holding that the sale was without jurisdiction and null and void. Against that decision, an appeal was taken by the Pro vincial Government in the Court of the District Judge of Faridpur and the learned District judge held in effect that as there had been arrears of certain previous dues as revenue and cesses, the Collector was within his jurisdiction to appropriate that amount from the sum that was deposited on the 26th March and 28th March 1940, on account of revenue and, therefore, the plaintiffs' suit was not maintainable and in that view he dismissed the plaintiff's suit. Against that decision the present appeal has been taken by the plaintiffs to this Court. Mr. Sris Chandra Dutt appearing amicus curiae on behalf of the appellants submitted that the learned District judge was Wrong in his decision in that as the money that was paid on account of the revenue in March 1940, which was much in excess of the amount due for payment in kisti March 1940, there could not have been any arrears but for the fact that the Collector unjustly appropriated a portion of the amount in payment of certain previous revenue and cesses and, there fore, showed that the estate was in arrears, which he was not entitled to do in law. In support of his contention Mr. Dutt refers to the case of Muhammad clan v. Ganga Bishan Singh (1910) I L R 38 Cal. 537 where it has been laid down that where the money has been expressly paid to satisfy the revenue due in a kisti and it was received and acknowledged on that account, there is no power on the part of either of A the parties to the transaction, without the assent of the other, to vary the effect of the transaction by altering the appro priation in which both originally concurred. Mr M. Asir appearing on behalf of the Government of East Bengal for the respondent submitted that the Collector had ample jurisdiction to appropriate the money in payment of the arrears of revenue due for January kisti as well for the cesses. It is true that if there is any arrears of revenue, the Collector would have been entitled to deduct the amount of revenue which was in arrears in kisti January 1940, namely, Rs. 3‑14‑9 and certain amounts that were due for arrears of cesses and in that the Collector was perfectly justified in view of the provisions in section 42 (1) of the Cess Act (IX of 1880) and Rule 110 framed by the Government under the said Act. It was urged, therefore, that the amount that was due for revenue in the kisti March 1940, fell in arrears by a sum of Rs: 5‑8‑0 and so the Collector was perfectly within his jurisdiction to put the property to sale in June 1940. Mr. Asir wanted to argue that there was nothing to show on the record that the amount of Rs. 26 that was deposited in March 1940, was deposited on account of revenue only. If the facts would have been as Mr. Asir asked me to find out, then his client would have a clear‑cut case for success in this appeal. In this case the plaintiffs alleged in their plaint that the sum of Rs. 26 was paid for revenue due in March kisti of 1940. If that was so, and if the sum of s.3‑14‑9 which was arrears of revenue for January kisti 1 40, were deducted, the amount that would have remained to the credit of the plaintiffs would be Rs. 22‑1‑3 and that was much in excess of the demand for kisti March 1940, which is only Rs. 11‑8‑

0. The plaintiffs contend that when the money was so paid, there was no power of the Collector to divert that sum to any other account and in this connection I may refer to section 59 of the Contract Act. The money having been put in for certain purpose must be appropriated for that purpose and if either of the parties wanted to divert it to another channel it can be done with the express consent of affecting parties. So the position is this that the Collector was not justified in diverting the sum of money that was paid in March 1940, for payment of revenue due in kisti March 1940, in payment due to him for arrears of cesses then due. Mr. Asir wanted to submit that the onus was on the plaintiffs to show that the money that was paid was, for revenue. I have looked into the evidence and found that the plaintiffs' evidence was that money was paid on account of revenue. This evidence of the plaintiffs in examination‑in‑chief was trot challenged in cross‑examination. So, the position is this that the money was paid for revenue and that being the fact the Collector went beyond his jurisdiction to divert the sum for any other purpose. So I hold that the learned District judge was not right in his decision while the learned Munsif was correct. The result, therefore, is that this appeal is allowed and the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. There will be no order as to costs. Leave for appeal under section 15 of the Letters Patent is prayed for and is refused. I am very grateful to Mr. Sris Chandra Dutt for arguing before me in this appeal amicus curiae on behalf of the appel lants. A. H. Appeal allowed.