P L D 1960 Dacca 746 (PLP)

ASIR, J.‑This appeal by the plaintiffs‑appellants under clause 15 of the Letters Patent is directed against a decision of our learned brother, Hassan, J., dismissing Second Appeal No. 574 of 1953 preferred by the plaintiffs, who Were unsuccessful in both the Courts below.

2. The plaintiffs brought a suit for a declaration that the revenue sale with respect to Taraf Nilam Devi Charan bearing Touzi No. 844 of the Chittagong Collectorate, as held on the 5th of January 1950, for arrears of cesses in respect of the September kist of 1949‑50 was without jurisdiction and void and for injunction restraining the defendants from interfering with their possession. As already observed, the plaintiffs could not succeed in any of the Courts mentioned above. The defendants‑auction purchasers' contention was that the sale took place in accord ance with the provisions of the Revenue Sale Law, as amended by East Bengal Act, II of 1949, which authorised a sale for arrears of cesses treating the same as arrears of land revenue. The plaintiffs' contention throughout has been that the sale with respect to arrears of cesses regarding the September kist for the year 1949‑50 was void inasmuch as no sale within the meaning of the Amending Act (East Bengal Act II of 1949) was authorised for arrears of cesses in respect of any kiss other than the last instalment as provided therein.

3. All the Courts have found against the plaintiffs on the finding that the sale for arrears of cesses in respect of the September kist was perfectly valid and within the jurisdiction of the Collector.

4. Mr Dharaninath Datta, appearing for the plaintiffs appellants before us, has contended that the terms of the second proviso to subsection (2) of section 2 of Act XI of 1859, since it has been amended by East Bengal Act II of 1949, do not authorise any sale for arrears of cesses other than those due in respect of the last instalment. Mr. Srish Chandra Datta, appear ing on behalf of the Contesting defend4nts‑respondents, however, contends that it, is permissible to hold a revenue sale for arrears of cesses with respect of any kist immediately preceding the sale in question.

5. We have, therefore, to examine as to whether the particular sale of the mahal which took place on the 5th of January 1950, for arrears of cesses in respect of the September kist was actually in accordance with the law, since amended by East Bengal Act II of 1949. It is not disputed that only two instalments of kists, namely, September kist and March kilt, were provided for payment of or realisation of the revenue and cesses in regard to the mahal in question. It also appears that the year, with respect to fixation of the instalments is not precisely an English calendar year but it is understood to be as 1949‑

50. In that context there seems to be no dispute that of the two instalments, September kist and March kist, September kist could not be regarded as a last instalment. On a plain meaning of the expression "last instalment", it is difficult to hold, in the facts and circumstances of the present case, that the September instalment, which was prior to the March instalment, was the last instalment within the meaning of subsection (2) of Section 2 of the Revenue Sale Law (Act XI of 1859). The learned Advocate also does not seriously contend that the September instal ment could be regarded as the last instalment in the facts of the present case.

6. The next question, therefore, is as to whether the September kist, which immediately preceded the sale that took place on the 5th of January 1950, could be regarded, in the eye of law, as a last instalment within the meaning of subsection (4) of section 2 of the Revenue Sale Law. It seems clear from the second proviso, as embodied in subsection (2), that all the arrears of cesses in respect of the instalments could not be the subject‑matter of sale. Some of the arrears of cesses seem to have been excepted from the strict operation of subsection (2) which authorised the Collector to regard arrears of cesses as an arrear of revenue within the meaning of section 2 of the Revenue Sale Law. Of the two instalments, namely, September instalment and the March instalment, therefore, some instalment must be deemed to have been excepted from the operation of this subsection by reason of the second proviso referred to above. As indicated above, the March instalment being the last instalment payable in respect of the arrears of revenue or arrears of cesses, it is quite reasonable to regard the September instalment as having been excepted from the opera tion of this subsection by reason of the proviso contained in the same.

7. Apart from that, if we are to place this subsection (2) in the body of the main section 2 of the Bengal Land Revenue Sales Act (Act XI of 1859), it will appear that just as in the case of revenue falling into arrears, the cesses should also be regarded as being in arrears if they are unpaid on the first of the following month of the era concerned. In that view of the matter, arrears of cesses in regard to a particular instal ment, just as arrears of revenue in regard to a particular instalment as mentioned in section 2, cannot be the basis for a sale under the Revenue Sale Law unless and until the latest day of payment, as indicated in section 3 of the main Act, appears to have expired. In the absence of any cogent evidence showing fixation of the latest day of payment in terms of section 3 of Act XI of 1859, there is no reason why the date for next instalment should not be regarded as the latest day of payment for arrears of revenue or cesses with respect to the preceding instalment. In that view of the matter, it seems that, even if it were assumed that arrears of September instalment might also be the foundation or basis of a sale, such a sale could not be held before the expiry of the latest day of payment which in the present case cannot be said to have expired before the 28th of March 1950. East Ben al Act II of 1949, by amending the Bengal Land Revenue ales Act, 1859, bas been incorporated in the latter Acts. Therefore the provisions of the new subsection (2) have to be considered keeping in view the entire scheme of the Bengal Land Revenue Sales Act, 1859. Even if it were assumed that the sale with respect to a parti cular instalment for arrears of cesses, apart from, the question as to whether it was the last instalment indicated in subsection (2) or not, could be held by the Collector, it was still necessary to follow other material provisions of the Bengal Land Revenue Sales Act, 1859. The Collector cannot disregard the provisions of section 3 of the main Act. That is to say, for whatever arrears of cesses the sale is desired to be held, it must also conform to the provisions of section 3 of the Bengal Land Revenue Sales Act.

8. In the decision of a Division Bench of this Court in the case of Abdul Hadi v. Ahmad Kabir Chowdhury and others ((1960) 12 D L R 208 : P L D 1960 Dacca 590), to which one of us was a party, a similar contention, as now raised by Mr. S. C Datta, was raised on behalf of the defendant appellant but it was negatived. It was observed: "There is no doubt that the amendment of section 2 of the Act by the Amending Act only means that a mahal or an estate may be sold for arrears of cesses in the same manner as in the case of arrears of revenue only in respect of the last instalment with reference to the sale which was due and payable and not paid till the latest day of payment of the subse quent instalment. So, we cannot accept the argument of the appellant or Mr. Jani Alam's argument that the sale has reference to the very last or the instalment immediately preceding the sale." It seems that this decision of the Division Bench, though earlier in point of time, was not placed before our learned brother, Hassan, J., at the time of the hearing of the Second Appeal. We do not think there is any reason to differ from the observations as made in that judgment and quoted above.

9. In our view, therefore, the contention of the learned Advocate for the appellants that the sale with respect to arrears of cesses for September kist was not authorised under the law has got considerable force. The learned Advocate for there respondents has, however, argued that the word `last', as used in two parts of the same proviso, should not be interpreted differently. We do not think there is much substance in this contention inasmuch as each word or expression has to be under stood by reference to the context of the subject in connection with which it is used.

10. For all these reasons, we allow this appeal and set aside the judgment passed in Second Appeal No. 574 of 1953 and the judgments and decrees as passed by the Courts below and declare that the sale of the mahal, as held by the Collector on the 5th of January 1950, was void and without jurisdiction. We also direct that in view of the nature of the con tentions canvassed in all the Courts, each party should bear their own costs throughout. AKBAR, J.‑I agree. K.B. A. Appeal allowed.