Case: Kali Ram Dokania &amp; Others Vs. S.K. Ulfat Hossain

1937-38 and 1938-39 and found that the estate was not in arrear at the end of December 1938 and that the Subordinate Judges calculation was based on a "complete misunderstanding" of the extracts from the Tauzi ledgers. "The whole confusion," they observed."has arisen by the two dates of the kistbandi not having been kept distinct from the dates fixed for the arrears of those instalments."Inasmuch as the Tauzi ledger for the year 1938-39 (Ex. G.-2) shows that the estate was in credit in the sum of Rs. 3-7-6 at the end of January 1939 and the next instalment to fall due according to the kistbandi would be the April instalment, the earliest date on which the estate would be in arrear for the non-payment of that instalment would be 1-5-1939 and the latest date for its payment as fixed by the Revenue Board under S. 3 of the Act could not be earlier than 12-1-1940. Hence the learned Judges concluded that the sale of 5-6-1939 was "wholly without jurisdiction.8. Mr. Umrigar on behalf of the appellants assailed this reasoning and conclusion but has not been able to convince us that the decision of the High Court is vitiated by any error of principle or of arithmetic. Learned counsel seemed to realise that, if the kistbandi of 1868 was still in force and bound the Government as well is the proprietors, the finding of the High Court must be correct. His whole attempt was to make out that the kistbandi of 1868 fell into desuetude, both the proprietors and the revenue authorities having proceeded on the footing that, whatever may be the dates when the instalments fell due according to the kistbandi, the dates fixed by the Board of Revenue under S. 3 were the crucial dates and the demands shown in the Tauzi ledgers under each "kist period were only sums which had already become arrears as defined in S. 2 of the Act. Accordingly it was said the sum of Rs. 6 entered as the demand in the "fourth kist" in Ex. G.2 was an arrear, the latest day for paying which was 28-3-1939. After adjusting the previous credit balance of Rs. 3-7-6, a sum of Rs. 2-8-6. was, it was claimed, correctly shown as an arrear for the non-payment of which the estate was liable to be sold. Reliance was placed in support of this argument on certain observations in Radha Gobinda v. Girija Prasanna, A. I.R. (l9)1932 Ca1. 153 (59 Ca1 186)Jadunandan Singh v. Savitri Devi,12 Pat. 750 : (A.I.R. (20) 1933 Pat. 236 S. B.) and Shama Kant v. Kashi Nath,A. I. R. (13) 1926 Pat. 549 : (96 I. C. 807). Reference was also made to the definition of "demand in the Tauzi Manual as meaning."sums due from proprietors, farmers or ryots for the recovery of which legal steps can at once be taken on the day immediately following the latest day of payment."10. These citations, however, are not of much assistance to the appellants. In the cases referred to above no kistbandi was forthcoming and the decisions turn on the particular facts with which they had to deal. We do not read the observations made therein as suggesting that even in cases where a kistbandi or a kabuliyat regulating the payment of Government revenue is shown to have been executed by the proprietors and accepted by the revenue authorities it should be deemed not to be in force.11. On the other handHaji Buksh Elahi v. Durlav Chandra Kar,39 Cal. 981: (39 I. A. 377 P. C.) is a clear authority for the view that"no variation of the contract of parties and the statutory provisions applicable thereto is possible by reason of general considerations or administrative rules which have not the sanction of Indian statute."12. In that case their Lordships of the Judicial Committee set aside a revenue sale as it was held without reference to the date fixed for payment of the revenue in a kabuliyat executed by the proprietors to the revenue authorities.Nor does the definition of "demand" in the Tauzi Manual carry the matter any further, for the entry of a sum as "demand" in the Tauzi ledger cannot be assumed to have been correctly made. It, must still be determined whether it represented an "arrear" within the meaning of S. 2 of the Act.13. If, then, the revenue due in respect of the estate Tauzi No. 4038 (Ijmal) is payable in two instalments in April and December according to the kistbandi of 1868, the conclusion of the High Court that the estate was not in arrear before 28-3-1939 based, as already stated, on the entries in the Tauzi ledgers, seems to us to be correct.14. The contention based on S. 33 of the Act is devoid of substance. After providing that no sale for arrears of revenue made after the passing of the Act shall be annulled by a Court of justice except upon the ground of its having been made contrary to the provisions of the Act, the Section proceeds to enact that:"no such sale shall be annulled upon such ground unless each ground shall have been declared and specified in an appeal made to the Commissioner under S. 2 of the Bengal Land Revenue Sales Act, 1868.. ."It was argued that this provision barred the respondents from relying on the kistbandi of 1866 as the same was not specifically put forward in their petition of appeal to the Commissioner. It is true that there was no reference in that petition to the kistbandi, but the latter is only evidential matter and however important in establishing that the estate was not in arrear before 28-3-1939, could not be said to constitute a "ground" for annulling the sale. That ground was that there was no arrear payable before the 28th March and this was clearly raised in para. 7 which stated that "instead of any default there have been all along amounts in excess of the revenue in the Collectors books."

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. In that case their Lordships of the Judicial Committee set aside a revenue sale as it was held without reference to the date fixed for payment of the revenue in a kabuliyat executed by the proprietors to the revenue authorities.Nor does the definition of "demand" in the Tauzi Manual carry the matter any further, for the entry of a sum as "demand" in the Tauzi ledger cannot be assumed to have been correctly made. It, must still be determined whether it represented an "arrear" within the meaning of S. 2 of the Act.13. If, then, the revenue due in respect of the estate Tauzi No. 4038 (Ijmal) is payable in two instalments in April and December according to the kistbandi of 1868, the conclusion of the High Court that the estate was not in arrear beforebased, as already stated, on the entries in the Tauzi ledgers, seems to us to be correct.14. The contention based on S. 33 of the Act is devoid of substance. After providing that no sale for arrears of revenue made after the passing of the Act shall be annulled by a Court of justice except upon the ground of its having been made contrary to the provisions of the Act, the Section proceeds to enactsuch sale shall be annulled upon such ground unless each ground shall have been declared and specified in an appeal made to the Commissioner under S. 2 of the Bengal Land Revenue Sales Act, 1868.. ."It was argued that this provision barred the respondents from relying on the kistbandi of 1866 as the same was not specifically put forward in their petition of appeal to the Commissioner. It is true that there was no reference in that petition to the kistbandi, but the latter is only evidential matter and however important in establishing that the estate was not in arrear beforecould not be said to constitute a "ground" for annulling the sale. That ground was that there was no arrear payable before the 28th March and this was clearly raised in para. 7 which stated that "instead of any default there have been all along amounts in excess of the revenue in the Collectors books."