P L D 1960 Dacca 914 (PLP)

4. The suit was contested by defendant No.

1. His case is that the suit is barred under section 42 of the Specific Relief Act and he denied the story of excess deposit and pleaded the bar of section 33 of the Revenue Sale Law for want of proper appeal before the Commissioner and that section 18 of the Limitation Act can have no application in the present case. He denied the irregularity complained of and the ultra vires of the Provincial Legislature and also denied the benami purchase by defendant No.

2. After the written statement, the plaintiffs filed an application for amendment of the plaint by adding a prayer therein that either their possession should be confirmed or, if they are deemed to be out of possession, then possession should be restored to them, and that petition was granted by the Court. Thereafter, the plaintiffs paid Court‑fees on Rs. 1,700 assessing the value of the property to be so. So the question of bar of section 42 of the Specific Relief Act did not arise.

5. On the question whether the revenue sale is liable to be set aside or to be declared as void, the trial Court held that there was an excess in revenue head to the extent of Rs. 41‑14‑2 pies and that there was an arrear of Rs. 27‑5‑8 pies under the head of cess and education cess. But he is of opinion that in view of section 2 of the Bengal Land Revenue Sales Act of 1859, as amended by East Bengal Act II of 1949, an arrear of road cess or public works cess levied under the Coss Act of 1880 or of primary education cess levied under the Bengal (Rural) Primary Education Act of 1930 which is payable to the Collector in respect of any estate shall be deemed to be arrear of revenue, and so the Collector could easily appropriate the arrears of cess amounting to Rs. 27‑5‑9 pies from the excess amount of Rs. 41 and odd deposited under the revenue head and that if the Collector had appropriated the excess amount there would not have been arrear of cess revenue and, as such, the sale was without jurisdiction of the Collector and set aside the sale. As to the irregularity, though the Court found that there are irregularities the learned Munsif held that for those irregularities, the sale cannot be held to be void. As to the fraud of defendant No. 2 and bona fide purchase by him in the benami of defendant No. 1, the trial Court held that there was no satisfactory evidence of fraud and benami purchase by defendant No. 2 in the name of defendant No. 1.

6. Defendant No. 1 filed an appeal. The only question that arose before the lower Appellate Court was whether there was any arrear of revenue in the legal sense of the term giving jurisdiction to the Collector to hold the sale. The learned Subordinate Judge held that though arrears of cess are to be deemed to be revenue for the purpose of realisation, it could not be treated as revenue for all purposes and, as such, the Collector is not entitled to appropriate the cess revenue out of the excess amount of the revenue deposited with the Collector. At page 15 of the paper- book, the learned Subordinate Judge held: "When the cesses fell in arrear on account of non‑payment, they were treated as arrears of revenue by the Collector for the purpose of realisation. In view of subsection (2), the Collector had jurisdiction to treat the arrears of cess as arrears of revenue and put the taluk to revenue sale. The plaintiffs never applied to the Collector to appropriate the excess revenue deposit towards cesses . . . . . . . . There was, therefore, an arrear of cesses which was deemed to be an arrear of revenue in view of subsection (2). It is to be noted that the cess does not assume the character of revenue unless it falls in arrear. So for the purpose of payment by the proprietors' cess retains its character as such and is quite separate from land revenue." In this view of the matter, the learned Subordinate Judge allowed the appeal and dismissed the suit of the plaintiffs. Hence this appeal by plaintiff No. 5.

7. Mr. A. W. Chowdhury, the learned Advocate for the appellant, contends that, at any rate, even under the amended subsection (I) of the Revenue Sale Law, the sale was without jurisdiction and is liable to be set aside. His second contention is that the learned Subordinate Judge is absolutely wrong in holding that for the purpose of appropriation of the cess revenue in arrear out of the excess revenue in deposit the cess in arrear cannot be treated as revenue.

8. In support of his first contention, Mr. Chowdhury relied on the following provisions of section 2, as amended by the East Bengal Act II of 1949. The relevant portion of that section runs as follows :‑

"Provided further that the provisions of this subsection shall not apply to any arrears of any such cess other than the arrears due in respect of the last instalment, or where the annual demand of any such cess is payable in one annual payment, in respect of the last year." As to what is the meaning of "last year" and "last instalment", there is an unreported decision of a Division Bench of this Court in Second Appeal No. 157 of 1958, dated 25 7‑58, where it has been held that "last instalment" means instalment previous to the instalment preceding the sale and "last year" means the year previous to the year preceding the sale. In the present case, the` sale took place on account of arrears of cess of March kist of 1950 and the sale took place on 26‑6‑

50. So, under the proviso to subsection (2) of section 2, there could not be any sale for arrears of cess due in March, 1950, and the sale held for such an arrear by the Collector was without jurisdiction and on this point the sale is liable to be set aside and declared void.

9. As to his second contention, it seems to me that the trial Court is right in holding that when the road cess and public works cess and education cess are in arrears they shall be deemed to be arrears of revenue, and the Collector could have appro priated the arrear cess revenue from the excess revenue in deposit with him.

10. It is contended by Mr. Salam, the learned Advocate for the respondent, that arrears of cess is to be deemed to be revenue but not for all purposes. I do not say that it is to be deemed to be revenue for all purposes. But, when it is in arrear, it is to be deemed to be revenue for the purpose of realisation of the cess in arrear. Even if it is held to be revenue for this purpose, I do not understand where is the bar for the Collector, who is out to realise the cess, to appropriate the same out of the excess revenue in deposit with him. In support of his con tention, Mr. Salam relied on the decision of a Division Bench of this Court in the case of Jogendra Kishare Pal Chowdhury and another v. The Province' of East Bengal ((1957) 9 D L R 182), where it has been held: "Where, therefore, a proprietor of an estate falls into arrears of cess, the Collector cannot take the amount lying under the head 'revenue' as really an amount lying under the head 'cess'. Even in case of arrears of revenue, it is not open to the Collector to appropriate payment in any way he likes." It is not the question of appropriation of the payment in any way he likes, but it is an appropriation of the cess in arrear which is deemed to be revenue for the purpose of realisation of cess out of the excess revenue deposit lying with the Collector. In that case (9 D L R 182), the mahal was sold for arrears of cess of Rs. 2‑12‑9 in respect of January kist of 1950 and the sale took place on 25th March 1950, and was purchased by the Government for Re. 1 though a sum of Rs. 5 on account of the revenue was lying with the Collector to the credit of the appellant on the said date. Their Lordships of the Division Bench, though they observed at page 184 of the report that even according to the second proviso to the amended section 2 it would appear that the provisions of the amended section 2 would not apply to any arrears of cess other than those due in respect of the last instalment or where the annual demand of such arrear is payable in one annual payment in respect of the last year, did not apply that principle to the facts of that case. If applied, then it would have appeared that the sale was void for want of jurisdiction as there could not have been any sale on account of the arrears of cess other than those due in respect of the last instalment. Further, their Lordships held that arrears of cess has to be deemed to be arrears of revenue for the purpose of realization. In the present case as well as in the case reported in 9 D L R 182, it was contended that for realisation of arrear cess this should have been treated or should have been deemed to be revenue. Once it is deemed to be revenue, there is no bar for the Collector to appropriate that amount in arrear out of the excess revenue in deposit with the Collector. It would not have been an appropriation of items other than revenue, at least by fiction of law. Be that as it may, the decision of the Division Bench is binding on me and, following that decision, I cannot uphold the second contention of Mr. A. W. Chowdhury. However, his first contention is sufficient for his success in this appeal.

11. The result, therefore, is that this appeal is allowed with costs and the judgment and decree of the lower Appellate Court are set aside and those of the trial Court restored. K. B. A. Appeal allowed.