l Appeal No 173 of 1951
Appeal from the Judgment and Decree dated February 22 1949 of the High Court of Judicature at Calcutta Blank and Lahiri JJ in Appeal from Original Decree No 23 of 1944 rising out of Judgment and Decree dated August 25 1943 of the Court of the Subordinate Judge Zilla Midna pore in Title Suit No 30 of 1941
Panchanan Ghose SN Mukharjee with him for the appellant
Sarat Chandra Jana and Bijay Kumar Bhose for respondent No 1
Arun Kumar Dutta for respondents Nos 2 b and 15 278 1952
December2
The Judgment of the Court was delivered by MAHAJAN J
The circumstances under which this appeal arises are as follows Touzi No 2409 of the Midnapore Collectorate consists of several mouzas including mouza Dingol
The annual land revenue payable in respect of the entire touzi is Rs 2892 8 0
This touzi was distributed into two shares one being a separate account bearing No 2491 and the other being the residuary share
Both these shares came in course of time to be held by a single person viz Jiban Krishna Ghosh and from him they devolved upon his two sons Sudhir Krishna Ghosh and Sunil Krishna Ghosh defendants 2 and 3 in the present suit
Both the two accounts were recorded in their names as joint proprietors
Under touzi No 2409 there was a patni which included mouza Dingol
In the year 1885 Kritibas Hui purchased a share of the said patni
His father Ramnath Hui purchased some transferable occupancy ryoti lands under the said patni
These lands are described in schedule  Ka  of the plaint
Kritibas Hui while he was a co sharer patnidar purchased some transferable ryoti lands under the patni described in schedule  Kha  of the plaint
Kritibas Hui died in the year 1906 or 1907 and his father Ramnath died in the year 1908 or 1909 soon after the death of his son
On the death of Kritibas Hui the plaintiff s four in number being his sons and nephews inherited the patni and the other properties left by him
Subsequently on the death of Ramnath the plaintiff s while they were co sharer patnidars inherited the aforesaid transferable occupancy ryoti lands under the patni purchased by Ramnath
Occupancy ryoti lands in schedule  Ga  of the plaint were purchased by the plaintiffs by different kabalas on different dates after they had inherited the lands mentioned in schedules  Ka  and  Kha of the plaint
Similarly the niskar lands mentioned in schedule  Gha  of the plaint were purchased by 279 the plaintiffs after they had taken the inheritance of their father and grandfather
By the same process they acquired the mokarrari maurashi interest under the Bahali niskar lands of Sree Ishwar Dwar Basuli Thakurani mentioned in schedule Una annexed to the plaint
On the 22nd April 1938 by a registered kabala the plaintiffs sold their interest in the patni to one Upendranath Pal
Upendranath Pal thus became the patnidar of the six anna share that was held by the plaintiffs prior to the year 1938
The rest of the interest in the patni which had been acquired by Satish Chandra Hui respondent No 1 was also sold to one Gouranga Sundar Das Gupta along with Upendranath Pal
The plaintiffs thus ceased to have any interest in the patni and remained in possession of the lands in the status of occupancy ryots or undertenure holders
When the plaintiffs in the year 1938 sold their patni interest they were heavily indebted to their landlords Sudhir Krishna Ghosh and Sunil Krishna Ghosh for arrears of patni rent
On the 25th March 1939 the landlords filed a suit claiming a sum of Rs 16835 3 6 as arrears of rent due to them from April 1935 to March 1939 in the court of the subordinate judge of Midnapore against the recorded patnidars viz the plaintiffs without recognizing the transfer made by them
While this suit was pending the landlords failed to pay the March kist of the revenue and cesses of the touzi in both the accounts with the result that both the undivided half shares of the touzi represented by separate account No 1 and by residuary account were advertised for sale on 24th June 1939 under section 6 of the Bengal Land Revenue Sales Act XI of 1859
The notice advertising the sale is exhibit H
It notified sale of the shares in the estate as such and did not state that the entire estate would be sold
In column of the notification the arrears due from the two shares were entered separately
Both these shares were actually sold on the issue of a single notice and at a 280 single sale and were purchased by defendent 15 the appellant before us
The sale certificate shows that what was certified to have been purchased by the appellant was the separate account share as also the residuary share making up between them the totality of the touzi
On the 9th January 1940 defendant 15 the appellant in exercise of the rights conferred by section 37 of the Revenue Sales Act as purchaser of an entire estate in the revenue sale served a notice on the maha expressing his unequivocal intention to annul and avoid all under tenures including patnis and darpatnis
On the same date he is alleged to have taker possession of some plots of land in possession on under tenure holders encumbrance holders and niskardars
The revenue sale held on 24th June 1939 has lead to a crop of litigations
As already stated the land lords had sued for the recovery of the arrears of rent due from the patnidars viz the plaintiffs before the sale took place
That suit was decreed on the 14th May 1940
An application was made for execution of the decree on 21st June 1940 by attachment and sale of certain plots in possession of the judgment debtors On behalf of the judgment creditors it was contended that the entire touzi having been sold under the revenue sale the purchaser had become entitled to annul the tenure under section 37 of the Revenu Sales Act and as a matter of fact had annulled the same and consequently the tenure itself having expired section 168 A of the Bengal Tenancy Act did not apply and the decree was executable against other properties of the judgment debtors
This con tention was upheld by the subordinate judge but was negatived in appeal by the High Court and it was held that the revenue sale was a sale of the shares on the touzi under section 13 of the Revenue Sales A and the purchaser did not acquire any right to and the tenures he not being a purchaser of the entire estate as such and therefore the patni being in existence the decree holder could not execute the decre 281 for arrears of rent of the patni against other properties of the judgment debtors
Vide Satish Chandra Hui vs Sudhir Krishna Ghosh 1 decided in February 1942 during the pendency of the present suit
The appellant was not a party to those proceedings
For the second time the question whether at the same revenue sale defendant 15 purchased the entire estate or two separate shares only arose in a case wherein he was impleaded as a party
Bimal Kumar Hui and another brought a suit some time in the year 1941 for establishment of their rent free title in certain lands and for confirmation of their possession
The present appellant was impleaded as defendant 2 in the suit as purchaser of the touzi and as claiming to have annulled the plaintiffs  interest
Defendant 2 pleaded that an entire touzi had been purchased by him at the revenue sale and he had thereafter annulled the interest held by the plaintiffs and they were disentitled to relief as they had no subsisting interest in the plots of land claimed by them
 This plea was negatived up to the High Court and the plaintiffs  suit was decreed
Vide  Gunendranath Mitra vs Bimal Kumar Hui 2 decided in September 1948
Harries C J and Chakravarti J in a very well considered and reasoned judgment reached the conclusion that the revenue sale in favour of the appellant was a sale of two separate shares under the provisions of section 13 of Act XI of 1859 and not of the entire estate and that he had not acquired the
right to annul the encumbrances under section 37 of the Revenue Sales Act
The third occasion on which the effect of the revenue sale held on 24th June 1939 came up for consideration by the High Court arose in the suit which has given rise to the present appeal
On the 28th June 1941 the plaintiff respondents Satish Chandra Hui and others instituted title suit No 30 of 1941 for a declaration of title and confirmation of possession of certain plots of land in the court of 1 2 282 the subordinate judge of Midnapore
There was the usual preliminary skirmish between the parties antecedent to the suit resulting in proceedings under section 144 Criminal Procedure Code
Possession of the paddy crop growing on a number of plots was taken by the District Magistrate and eventually under the orders of the High Court the crop was handed over to defendant 1 an employee of the appellant
In this suit the present appellant was impleaded as defendant 15
In the plaint it was averred that the plaintiffs were in possession of the plots of land mentioned in schedules  Ka  Kha and  Ga  of the plaint as occupancy tenants that in respect of the lands mentioned in schedules  Gha  and  Una they had niskar rights and that as in the revenue sale the appellant did not purchase the entire estate he was not entitled to annul the patni and the other tenures or the rent free grants and that the plaintiffs having transferred the patni rights to Upendranath Pal which still subsisted none of the encumbrances could be said to have been extinguished
The appellant pleaded that he was the purchaser of the entire touzi at the revenue sale held on 24th June 1939 and had acquired the power to avoid and annual the encumbrances and that by a notice duly published on the 9th January 1940 he had annulled all under tenures including the patni and that the transfer of the patni to Upendranath Pal was a benami transaction and that even if it was held genuine the plaintiffs  rights in the ryoti land had been extinguished as the ryoti rights had merged with the patni rights under section 22 of the Bengal Tenancy Act as it was in force before its amendment in 1928 and that by a sale of the patni to Upendranath Pal
the plaintiffs  rights in those lands stood transferred to him and they were not entitled to maintain any suit in respect of those plots
The trial judge decreed the suit in respect of some of the plots detailed at page 144 of the paper book
The plaintiffs  claim in respect of other lands mentioned in schedule  Gg  of the plaint was dismissed
283 Plaintiffs were also given a decree for Rs 416 4 0 against defendant 1 on account of the paddy of 55 12 bighas of the land out of schedules
Ka   Kha  and  Ga  to which they had proved their title and of which they were entitled to recover khas possession
It was held that at the revenue sale the entire touzi did not pass to the appellant and he had acquired no right to annul or avoid the under tenures and encumbrances that the ryoti holdings of the plaintiffs had merged in the patni and had passed to Upendranath Pal on the sale of the patni to him on 22nd April 1938 but that Upendranath Pal had resettled these lands with the plaintiffs and they being settled the ryots of the village had acquired occupancy rights in these plots
The plots of land described in schedule Ga  were held as not assessed to revenue and that being so defendant 15 was held not entitled to possession of these niskar lands
Defendant 15 preferred an appeal to the High Court against the judgment of the subordinate judge while the plaintiffs preferred cross objections
The appeal and the cross objections were both dismissed by the High Court and the findings of the trial judge were maintained
It was contended before the High Court that the revenue sale though held in fact under section 13 of Act XI of 1859 should be deemed to have been held under section 3 and that the appellant had acquired all the rights of the purchaser of an entire estate
The High Court negatived this con tention and observed that on a plain reading of section 13 the contention could not be sustained the essential conditions for the exercise of jurisdiction under section 13 being the existence of a separate account or accounts and the liability of the entire estate for sale for revenue arrears and that both these conditions having been fulfilled in this case the Collector rightly proceeded under section 13 to sell the shares and that the additional provisions mentioned in the second paragraph of the section need only be complied with in cases where there does exist a share from which no arrear is due it was further 37 37 284 hold that though the old occupancy rights of the plaintiffs merged in the patni and passed to Upendranath Pal after the sale of the patni to him the action of Upendranath Pal in realizing the rent from the plaintiffs amounted to a resettlement and that by his action he had conferred a right of tenancy upon the plaintiffs who being settled ryots of the village acquired a right of occupancy in all the lands in respect of which rents were realized  This decision was announced by the High Court on the 22nd February  1948 and is in appeal before us on a certificate granted by the High Court on 25th August 1960
For the fourth time the same question came up for consideration before the High Court after the decision under appeal and the view expressed in its earlier judgments by the High Court was followed
Vide Gowranga Sundar vs Rakhal Majhi 1 Mr Ghosh for the appellant argued two points before us  1 that defendant 1 5 being the purchaser of an entire estate at a revenue sale had all the rights conferred upon him by section 37 of the Bengal Land
Revenue Sales Act and all under tenures stood annulled and plaintiffs had no rights in the lands in suit in which they had no occupancy rights and 2 that the plaintiffs were not entitled to a decree on the basis of the resettlement of land which case was never made out by them and which was inconsistent with the pleadings and evidence and that on the facts proved there could not be any legal inference of resettlement
In our opinion neither of these contentions is well founded
Section 6 of Act XI of 1859 authorizes the Collector after the latest day of payment fixed in the manner prescribed in section 3 of the Act has expired to issue a notification specifying the estates or shares of estates which have to be sold for recovery of arrears of revenue and further authorizes him to put up to public auction on the date notified for sale the estates or 1 285 shares of estates so specified
The contents of the notifi cation issued for the sale in question in unambiguous terms indicate that two separate units of the estate from which separate items of arrears  were due were notified for sale
No entry was made in the notification in the column meant to be filled in when the entire estate is to be put up for sale
In the face of these facts it was conceded by Mr Ghosh that the sale in fact took place as provided for in section 13 of Act XI of 1859 and what was actually put up for sale were two separate shares in the estate which made up the totality of the estate
The learned counsel however contended that the sale should be deemed to have been of an entire estate as both the shares sold con stituted the totality of the estate and because section 13 could have had no application to a case wherein both the accounts were in default the section having application only in cases where there at least exists a share that is not in default and which needs protection against the default of the other co sharers
This argument though attractive is fallacious
To hold that a sale which in fact was of two different accounts is to be deemed to be a sale of the entire estate would be tantamount to converting a fact into a fiction by a judicial verdict
The notification under section 6 issued by the Collector must in our opinion be considered as conclusive on the point as to what the subject matter of the sale was ie whether what was sold was the entire estate or two shares
The appellant is really on the horns of a dilemma
If the contention of his learned counsel that the sale by the Collector of shares of the estate was not authorized by section 13 is taken seriously the sale would then be a nullity as under none of the provisions in the Revenue Sales Act such a sale could be held in the manner adopted and the appellant would have no title under it whatsoever if such a sale is authorized by section 13 of the Act then it gives him no rights to annul the undertenures
In either event be cannot resist the plaintiffs  suit
In our judgment it has been rightly held 286 in the courts below that the appellant at this revenue sale did not become the purchaser of the entire touzi as such and did not become entitled to the privileges conferred on such a purchaser by the provisions of section 37 of Act XI of 1859
The contention of Mr Ghosh that the provisions of section 13 are not attracted to a case where all the shares in an estate are in default and that in that event the only authority that the Collector has is to put up for auction the entire estate is again in our opinion not well founded
Before the Revenue Sales Act was passed in 1869 estates were being put up for sale for arrears irrespective of the question whether the majority of the cosharers had deposited their shares of the revenue or whether the amount due was large or small
The cosharers who had paid their shares within the due date were affected seriously by such sales
Provision was therefore made in 1859 for affording protection to the cosharers who were willing to pay and had  paid their share of the revenue
On the application of the parties the Collector began to keep a record of separate accounts in the names of the different cosharers
The liability of the entire estate for the total amount of revenue was not in any way affected by this arrangement The only privilege given was that if the cosharers had got separate accounts opened in the collectorate the revenue apportioned for the particular cosharers would be receivable by the Collector
At the initial stage the shares belonging to such of the cosharers who duly paid the amount allotted in their share would not be put up to sale even if there be a default on the part of one or more of the other cosharers
Only the defaulting separate accounts would be put up to sale in the first instance
If the Collector found that the total amount of the revenue in arrears was not realizable from such sale he would thereupon stop the sale of the defaulting share and give notice that the entire estate would be put up to sale
The paramount consideration governing the whole of this Act is to preserve intact the 287 ultimate security of government for the revenue demand against the estate
By permitting the opening of separate accounts the Act seeks to give recorded sharers of a joint estate an easy means of protecting their shares from sale for the default of their cosharers but there is no ultimate protection if the government demand is still unsatisfied
Even in cases where all the shares are in default this protection cannot be denied because the amount of arrears due from them may be different sums of money
Sections 13 and 14 of the Act on which the argument rests are in these terms 13
 Whenever the Collector shall have ordered a separate account or accounts to be kept for one or more shares if the estate shall become liable to sale for arrears of revenue the Collector or other officer as aforesaid in the first place shall put up to sale only that share or those shares of the estate from which according to the separate accounts an arrear of revenue may be due
In all such cases notice of the intention of excluding the share or shares from which no arrear is due shall be given in the advertisement of sale prescribed in section 6 of this Act
The share or shares sold together with the share or shares excluded from the sale shall continue to constitute one integral estate the share or shares sold being charged with the separate portion or the aggregate of the several separate portions of jama assigned thereto
If in any case of a sale held according to the provisions of the last preceding section the highest offer for the share exposed to sale shall not equal the amount of arrear due thereupon to the date of sale the collector or other officer as aforesaid shall stop the sale and shall declare that the entire estate will be put up to sale for arrears of revenue at a future dateunless the other recorded sharer or sharers or one or more of them shall within ten days purchase the share in arrear by paying to the Provincial Government the whole arrear due from such share
288 If such purchase be completed the Collector or other officer as aforesaid shall give such certificate and delivery of possession as are provided or in sections 28 and 29 of this Act to the purchaser or purchasers who shall have the same rights as if the share bad been purchased by him or them at the sale
If no such purchase be made within ten days
as aforesaid I the entire estate shall be sold after notification for such period and publication in such manner as is prescribed in section 6 of this Act
 The concluding words of section 14 furnish a key to the construction of these sections
When a contingency arises in a case where two separate accounts have been kept to sell an entire estate a fresh notification has to issue in accordance with the provisions of section 6 of the Act notifying that the entire estate is for sale
In the absence of such a notification a sale of an entire estate is not authorised in such a case
Section 13 thus empowers the Collector where separate accounts are kept to sell the shares in default as such there being no scope for the operation of paragraph 2 of the section where all the shar ers  are in default
There is nothing in that section which disentitles the Collector where two separate accounts have been kept and both of them are in default to notify for sale the separate accounts for recovery of arrears due from each of them separately or to bring several defaulting shares to sale all at once without following the procedure laid down in section 13
If the Collector proposes to sell the entire estate where there are several accounts the first step he has to take is to close the separate account or accounts or merge them into one demand and the next step would be to issue a notification for sale of the entire estate under section 6 and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate and not otherwise 
In this case no such thing was done
The demands against the two shares were not merged into one item and the entire estate could not 280 be sold for two separate demands
It could only be notified for sale for recovery of a single sum of arrears due from the entire estate
In our judgment therefore it is not right to hold as was contended by Mr Ghosh that a sale for arrears of revenue is not a sale under section 13 unless there is a share from which no arrear is due and unless a notice of the intention of excluding that share is given in the advertisement of sale under section 6 of the Act that that share is excluded from sale
The second point of Mr Ghosh that no inference should have been drawn in this case that the lands in suit were resettled by the purchaser of the patni on the plaintiffs is also without force
The facts from which an inference of resettlement has been drawn by the courts below were alleged in the plaint and on those facts such an inference could be justifiably raised
The plaintiffs had been paying rent to the purchaser of the patni on the land in their possession and this was accepted by the purchaser as if they were his tenants
In those circumstances the absence of a specific pleading as to resettlement could not in any way be said to prejudice defendant 15 s case
Upendranath Pal having treated the plaintiffs as tenants defendant 15 has no right to question their interest and it must be held that their claim was rightly decreed in the courts below to the extent that they were able to establish it
The appeal before us was limited to the plots of land which were not covered by the sanads or regarding which plaintiffs hid not been able to prove that they were occupancy tenants
In view of our findings however the appeal even as regards those plots has no merits
For the reasons given above the appeal fails and is dismissed with costs
Appeal dismissed
Agent for respondents Nos 1 2 b  15 section CBannerjee


Summary:
Under the Bengal Land Revenue Sales Act XI of 1859 if this Collector proposes to sell the entire estate where there art separate accounts for the several shares which constitute the estate he has first to close the separate account or accounts or merge them into one demand and then he has to issue a notification for the sale of the entire estate under section 6 of the Act and it is only when the Collector has followed this procedure that he would have authority to bring to sale the entire estate
Where a touzi was held in two shares in respect of which separate accounts were kept in the Collector s records and as the shares were in arrears a notification was issued putting up for sale the two separate units of the estate and showing the separate items of arrears due from each unit and both the shares were sold Held that the sale cannot be treated as a sale of the entire estate even though the two shares constituted the whole estate and the purchaser was not entitled to the privileges conferred on the purchaser of an entire estate by section 37 of the Bengal Land Revenue Sales Act 1859
The notification issued under section 6 of the Act was conclusive as to whether the subject matter of the sale was the entire estate or the separate shares constituting the estate