P L D 1960 Dacca 577 (PLP)

ASIR, J.‑This appeal by the plaintiffs under Clause 15 of the Letters Patent is directed against the decision of our learned brother, Khan, J., in Second Appeal No. 230 of 1956 affirming the judgment and decree of the lower Appellate Court which reversed the decision of the trial Court.

2. The present litigation concerns a jote appertaining to a Noabad taluk within the Collectorate of Chittagong which was sold under the provisions of the Revenue Sale Law on the 18th of June, 1951, for certain arrears of revenue said to have been due on the date of the sale. The plaintiff's case in brief was that there was no arrear due in respect of the jote in question justifying a sale under the Revenue Sale Law, and even if it appeared that there was anything due, the whole amount having been paid on the 13th of June, 1951, with the written permission of the Collector, the sale held for non‑existent arrears was without jurisdiction and was liable to be formally annulled. The plaintiffs' further case was that, in view of certain advance payments made on account of the taluk in question, he had no knowledge that it had been sold for arrears of revenue on the 18th of June, 1951. As soon as he came to know of the sale, he preferred an appeal before the Commissioner though it was already barred by time. The plaintiffs thereafter instituted the suit on 30‑12‑53 for a declaration that the sale in question was void and without jurisdiction.

3. The defence of defendant No. 1 auction‑purchaser inter alia was that the sale was held for arrears due in respect of the jote in question after the latest day of payment as provided in section 3 of the Revenue Sale Law, and, in fact, there being no written permission of the Collector according to the require ment of section 18 of that Law (Act XI of 1859), the sale was in order and in accordance with law and, as such, it was not liable to be annulled. His further defence was that the suit having been brought more than one year after the confirmation of the sale, it was barred by time.

4. Defendant No. 2, the Province of East Bengal, also filed a written statement on or about the 9th of April, 1954, subs tantially supporting defendant No. 1 in all material particulars.

5. The learned Munsif took the view that, although, accord ing to the evidence of defendant No. 1, 28th of June, 1951, was the latest day for payment of arrears in respect of January kist of 1951, yet infect, the latest day of payment was 28th of March, 1951. On the other question, he however accepted the plaintiffs' story that all dues had been paid on the 13th of June, 1951, i.e. about 5 days prior to the sale which took place the 18th of June, 1951, with the authority and written permission of the Collector. In that view of the matter, the learned Munsif took the view that the present suit was not excluded from the cognizance of the Civil Court because of the provisions of section 33 of the Revenue Sale Law. The suit was accordingly decreed by the learned Munsif.

6. The learned Subordinate Judge agreed with the learned Munsif in so far as he found that the latest day of payment with respect to the January kist was the 28th of March, 1951. He however took a different view on the other question, namely, whether the dues bad been paid on the 13th of June, 1951, with the written permission of the Collector, as required by section 18 of the Revenue Sale Law. He also took the view that the suit was barred by time. In this view of the matter, the learned Subordinate judge allowed the appeal as presented by defendant No. 1 and set side the judgment and decree of the learned Munsif. The learned Subordinate Judge did not attach any importance to a compromise said to have been effected between the plaintiff and defendant No. 2 although the fact of compromise weighed considerably in the estimation of the learned Munsif.

7. The plaintiffs' appeal before this Court could not succeed, as already observed.

8. Mr. Sobhan, appearing on behalf of the plaintiffs appellants, has contended before us that the two kists, namely January lost and the August kist, being not disputed to be kists within the meaning of section 2 of the Revenue Sale Law, and the evidence of defendant No. 1 being to the effect that the latest day of payment with regard to the January kist was the 28th of June, 1951, it should have been held that there was no arrear justifying the sale on the 18th of June, 1951. Alternatively, he has argued that the written permission of the Collector having been given, it ought to have been held that whatever dues had been paid on the 13th of June, 1951, were paid in terms of section 18 of the Revenue Sale Law and, as such, there was no arrear existing on the date of the sale (18th June, 1951). He has also contended that, if it appears that there was no arrear justifying the sale on the 18th of June, 1951, there will be no question of limitation inasmuch as section 33 of the Revenue Sale Law would not be attracted to the facts of the present case.

9. Mr. Mozammal Haq, appearing for defendant No. 1 respondent, has, on the other hand, contended that both the Courts, namely, the trial Court and the First Appellate Court, have found that the latest day of payment with regard to the January kist was 28th of March, 1951, and has further contended that there is no evidence that actually any written permission was given by the Collector in terms of section 18 of the Revenue Sale Law. He has, therefore, submitted that the sale was in accordance with law and the suit has rightly been found to be barred by time.

10. It seems from the allegations made in the plaint that the definite case of the plaintiff was that the two kists relevant for the purpose of section 2 of the Revenue Sale Law were January kist and August kist. This position is not denied in the written statement. Defendant No. 1, on the other hand, makes a categorical statement in his written statement that the latest day of payment for the relevant January kist was the 28th of March, 1951. This clearly shows that the January kist and the August kist were kists or instalments as properly understood under section 2 of the Revenue Sale Law. It however appears from the evidence of defendant No. 1 himself that the latest day of payment with regard to the January kist was 28th of June, 1951. The notification in terms of section 3 of the Revenue Sale Law has not been produced by either party. As this case was heard on several occasions, an opportunity was given by an order, dated 7‑12‑59, to the learned Advocate for the defendant‑respondent to produce the Government notification regarding the latest day of payment of revenue under section 3 of the Revenue Sale Law of the disputed mahal. No such notification has, however, been produced before any of the Courts below.

11. The learned Munsif seems to have relied upon certain documents, Exhibit B (Sale Certificate), Exhibit E (Sale notifica tion), Exhibit F (Notice under section 7 of the Revenue Sale Law) as also Exhibit D (2) (Order of the Commissioner, dated 17‑11‑53). On a perusal of these documents, the learned Munsif took the view that the last date for payment of the arrears was 28‑3‑

51. It does not, however, appear as to what was the basis upon which the sale notification under section 7 indicated that 28th of March, 1951, was in fact the last date for payment of arrears in respect of the January kist. Exhibit D (2), which seems to be an order of the Commis sioner while disposing of the time‑barred appeal of the plaintiffs, shows that there was an observation that 28th of March, 1951, was the last day for payment of arrears in regard to the particular kist. There is no indication upon what materials the Commissioner made this observation. Apart from the fact that for all practical purposes, in the eye of law, a time‑barred appeal should be regarded as no appeal, it is doubtful as to whether any observation made in the relevant order disposing of such an appeal can be taken as a safe guide for determining such an important question as to what was the latest date for payment of arrears in respect of January lost. According to section 3 of the Revenue Sale Law (Act XI of 1859), it is the duty of the Board to give police of the sale so fixed in the Official Gazette. Mr. Mozammel Haq, the learned Advocate for the respondent, referred to the rules made by the Board of Revenue under the Revenue and Patni Sale Laws Manual in regard to the latest dates as incorporated in Part III of the Bengal Sale Law Manual, 1940, and he referred to the chart at page 251 of the Manual and drew our attention to the entry in the first column "Chittagong‑All other estates" and to the entry in the 3rd column "28th September, 28th March". By reference to this, he tried to argue that as this jote was within the territory of Chittagong and not included within the Cox's Bazar Sub‑division, the latest day of payment in relation to the January kist should be regarded as the 28th March. Admit tedly this jote appertains to a Noabad taluk. It appears from the second entry in column 1 of the chart at page 251 that reference has been made to Noabad taluks in Cox's Bazar Sub division. If any reference to other Noabad taluks of the Chittagong District was intended to be made, that should have appeared from the, text of the entries concerned. In this view of the matter, the learned Advocate for the respondent could not reasonably support the theory that the Chart, as printed at page 251 of the Revenue Sale Law Manual, would be a safe guide for concluding that 28th March, 1951, was the latest day for payment of areas in respect of the January kilt of 1951.

12. In view of the statement on oath, as given by defendant No. 1 in his oral evidence that 28th June, 1951, was the latest date for payment of revenue in respect of the January lost, it was the duty of defendant No. 1 to prove by more reliable evidence that, in fact, the latest day of payment was the 28th of March, and not 28th of June. In a decision of the Privy Council in the case of Mst. Saraswati Bahuria v. Surajnarayan Chaudhuri and others (35 C W N (P C) 444) their Lordships, while referring to four instalments, namely, 7th June, 28th September, 12th January and 28th March, made certain useful observations. In that case a sum of Rs. 45‑7‑3 appeared to have been payable on the 28th of March, 1919. Their Lordships, after quoting the terms of sections 2 and 3 of Act XI of 1859, thought that the amount was not in arrears until the 1st of April, and observed: " . . . . . the last date, therefore, for payment of such arrear under the notification could not be the 28th March ; but the last date for payment was the 7th June, 1919. Under section 3 of the said Act the plaintiff's share in the estate was not liable to be sold for default of payment of the said arrear of revenue until the expiration of the last day for payment, viz., the 7th June, 1919." In that particular case the sale which was held on the 6th of June, 1919, was found to be invalid as having been held before the expiry of the last date of payment which fell on the 7th of June, 1919. This case came to be considered by their Lordships of the Privy Council in a subsequent case Dinabandhu Chatterjee v. Ashutosh Chatterjee and others (42 C W N (P C) 1245). Their Lordships distinguished the case in 35 C W N 444 on facts and observed that the evidence in that case included the sale proclamation issued under section 7 of the Act which was misleading and that the case must, therefore, be regarded as proceeding upon its own facts. In the case before their Lordships reported in 42 C W N 1245, it appeared from the entries in the touzi‑ledger concerned that dates by reference to net demands were recorded. Their Lordships took the view that the learned Judges of the High Court who thought that what was called a net demand in the touzi‑ledger in respect of the said question was a kist as contemplated by section 2 were not correct. According to the opinion of their Lordships, the sale, which was held on the 22nd March, 1930, was held after the expiry of the latest date for payment of arrears which was fixed on the 12th January, 1930, as the entries of net demands in the touzi‑ledger concerned might show. In that view of the matter, it was held in that case that the sale was within the jurisdiction of the Collector. We asked Mr. Mozammel Huq, the learned Advocate for the respondent, as to whether there is any evidence showing the entries of the net demand of the touzi‑ledger concerned which might throw light on the subject as to what was the latest day of payment in regard to the particular jote in dispute in terms of section 3 of the Revenue Sale Law. There seems to be no evi dence on record either in respect of the touzi‑ledger or otherwise. The only relevant document, Exhibit 2, which has been proved in the present case to be a copy of a Payment Register, shows payment of Rs. 39‑0‑6 on 13‑6‑51 but there is no indication from the document as to what date was fixed for payment of net demands, if any. We do not, therefore, think that the decision of their Lordships in the case of Dinabandhu Chatterjee v. Ashutosh Chatterjee and others can be followed in the circumstances of the present case or that it can be concluded that 28th March, 1951, should be regarded as the latest day of payment within the meaning of section 3 of the Revenue Sale Law. In another decision in the case of Krishna Chandra Bhowmick v. Pabna Dhanabhandar Co. Ltd., and others (36 C W N (P C) 277), which does not appear to have been considered in the case of Dinabandhu Chatterjee v. Ashutosh Chatterjee and others, their Lordships of the Privy Council, relying upon the decision in the case of Mst. Saraswati Bahuria v. Surajnarayan Choudhuri, held that before liability to sale attaches there must be (1) a whole or part of a kist unpaid, (2) the conversion of such unpaid amount into an arrear on the first of the following month, and (3) the passing of the latest date of payment of such arrear as fixed under section 3 and the official notice of the Board of Revenue. Keeping in view the principles laid down by the Privy Council as indicated in the above cases, it seems certain that, unless and until the latest date of payment in terms of section 3 of the Revenue Sale Law appears to have expired, the Collector cannot exercise his power of sale as provided in the Revenue Sale Law.

13. In the present case, as already observed, it was the duty of defendant No. 1, in view of the admitted fact that January kist was an instalment within the meaning of section 2 of the Revenue Sale Law and, in view of the admission of defendant No. 1 that 28th June was the latest day of payment with respect to the January kist, to produce a copy of the notification that might have been issued in terms of section 3 of the Revenue Sale Law. The learned Subordinate Judge does not appear to have consi dered the effect of the deposition of defendant No. 1 in regard to this question. It is, therefore, very difficult to take the finding, that the latest day of payment in regard to the January kist of 1951 was 28th of March, 1951, as a correct one.

14. Apart from the question of the latest day of payment, the plaintiffs have come with a definite case that a written permis sion was obtained from the Collector in terms of section 18 of the Revenue Sale Law. In view of the peculiar nature of the present case, we asked the learned Senior Government Pleader to assist us in the matter by producing relevant or other information in connection with the availability or otherwise of the records of the Exemption proceeding, if any, started on the basis of an application made under section 18 of the Revenue Sale Law. In view of the fact that a compromise as between the plaintiffs and defendant No. 2 had been effected and that in such compromise it was stated: " .the plaintiff having paid the rent and revenue on written permission of the Collector over his application for pay ment of arrear in question, and the same having been credited in the Khas Mahal, the sale took place through inadvertence," the learned Senior Government Pleader was asked by an order of this Court, dated 25‑8‑59, to produce or cause to be produced the application for payment of arrear on which the Collector gave written permission, as it was essential to know after examining whether the Collector granted exemption as claimed by the appellants. Since then the learned Senior Government Pleader has placed before us all such papers in connection with the present case as could be produced from his relevant office and he has frankly conceded before us that the written statement of defendant No. 2 (Province of East Bengal) which seems to have been filed on 9‑4‑59 was filed in anticipation of the approval of the Legal Remembrancer for the Province of East Bengal but this written statement was never subsequently approved. It further appears, as submitted by the learned Senior Government Pleader, that the Commissioner as also other relevant authorities were of the opinion that there being no arrears the sale could not stand and, as such, the Government should not contest the suit at all.

15. Mr. Sobhan, the learned Advocate for the appellants, has also produced an application for information in the prescribed form which appears to have been filed on 5‑9‑59 in the Chittagong Collectorate (requiring information as to the availability or other wise of the relevant exemption application and the order thereon) and returned by the authorities of the Chittagong Collectorate Record Room with the following remark: "It appears that these exemption petitions are `C' class papers which are preserved for two years as per rule in force and destroyed after the expiry of the preservation period. Sd./Illegible, 7‑9‑59." P. W. 3 Sultan Ahmed, an officer of the Khas Mahal office, in his deposition, stated that the relevant application could be expected to be in the Collector's Record Room. His further categorical statement is that "after due date we accepted rent only after the order of the Collector which is written on parties' petition for permission to deposit beyond date." In cross‑examination, he says that "That is the procedure prescribed in Khas Mahal Estate Manual." In view of the information derived from the application for information, as referred to above, and in view of the conduct of defendant No. 2, Province of East Bengal, who seems to have been conscious of the fact that there was no arrear by reason of payment of arrears in question with the written permission of the Collector on the 13th of June, 1951, and in view of the evidence of P. W. 3 Sultan Ahmed who seems to be in no way interested on either side, and in view of the further evidence of P. W. 5 Aminullah Khan, the local Government Pleader, accord ing to whom there were no arrears when the sale was brought under hammer, we find no reason as to why it should not be believed that payment of Rs.39‑8‑6, as made by Challan No. 316733 on 13‑6‑51, was accepted on the authority and written permission of the Collector as required under the proviso to section 18 of the Revenue Sale Law. There is no reason as to why official acts like these should not be presumed to have been regularly performed. P. W. 3 Sultan Ahmed has proved the system or practice of accepting payment before the sale and, according to him, rent is accepted after due date only after the order of the Collector which is written on parties' petition for permission to deposit beyond date. There is no reason why the evidence of this witness should not be accepted as indicative of the fact that the payment as made on 13‑6‑51 by the plaintiffs was accepted in due course according to the established practice and that after the office or department concerned was satisfied with the require ment of section 18 of the Revenue Sale Law. In our view, therefore, even though the written permission, as required under section 18 of the Revenue Sale Law, has not been produced, for reasons beyond control of the parties concerned, it must be accepted as a fact that the payment of the sum of Rs. 39‑8‑6 was accepted on 13‑6‑51 after the department concerned was satisfied as to the requirement of section 18.

16. In this state of things, there is no escape from the conclusion that on payment of this sum of Rs. 39‑8‑6, whatever arrears or dues existed till that date ceased to exist after 13‑6‑51 and, as such, it must be concluded that the sale which took place on the 18th of June, 1951, was held for supposed arrears which did not, in fact, exist. As such, the impugned sale must be deemed to have been held without jurisdiction.

17. As we are satisfied that the sale in question was held for no arrears and, as such, it was without jurisdiction, it must also be held that it was void. In that view of the matter, we are also inclined to think that the present suit is not hit by the operation of section 33 of the Revenue Sale Law, and there being concurrent findings of fact that the plaintiffs are still in possession, the question of limitation pales into insignificance and does no arise in the present case.

18. In the result, this appeal is allowed, the judgment and decree, as passed by our learned brother, Khan, J., in Second Appeal No. 230 of 1956, confirming the decision of the learned Subordinate Judge, are set aside and those of the trial Court are restored.

19. In the peculiar circumstances of the case, we however direct that each party will bear its own costs throughout. AKBAR, J.‑I agree. K. B. A. Appeal accepted.