Case No: Civil Appeal No. 33 of 1984
Judge: F.K.M.A. Munim,
Court: Appellate Division ,,
Advocate: Syed Ishtiaq Ahmed,Mr. M.H. Khondkar,,
Citation: 38 DLR (AD) (1986) 115
Case Year: 1986
Appellant: Md. Nurul Islam
Respondent: Abul Malek
Delivery Date: 1985-7-11
F K.M.A Munim, CJ.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
Md. Nurul Islam, being dead his heirs: Md. Shamsul Islam & ors
July 11, 1985
The Bengal Land Revenue Sales Act, 1859
Sections 26 and 33
The General Clauses Act, 1897
The learned Judges of the High Court Division committed no illegality in equating issue of notice with service of notice. The Plaintiff Appellant himself was present when the impugned sale was held and did nothing to prevent it or to have it set aside before the period of limitation expired. The Plaintiff having no possession in the Suitland is barred under section 42 of the Specific Relief Act.……(23)
Inordinate delay in filing prayer for amendment of the plaint on material issue requiring filing of such petition much earlier, disentitles the plaintiff to get such amendment. The appeal is dismissed……..(27)
Cases Referred to-
Province of East Bengal (Pakistan) Vs. Nirode Behari, (1960) 12 DLR 339; Ratantilal Chakravarty vs. Shomnath Chakravarty. (1957) 9 DLR 112; Gobinda Lal Ray Vs. Ramjanam Misser, ILR 21 Cal. 70 corresponding 20 IA 165; Banarsi Debi Vs. The Income-tax Officer, AIR 1964 SC 1742; Radha Krishna Jogani vs. Dwarka Das Agarawalla, (1984)36253 (AD).
Syed Ishtiaq Ahmed, Senior Advocate (Mahmudul Islam, Advocate with him) instructed by Mr. Md. Aftab Hossain, Advocate-on-Record— For the Appellants.
M. H. Khondker, Senior Advocate (A. J. Mohammad Ali, Advocate with him) instructed by Mr. Sharifuddin Chaklader, Advocate-on-Record—For the Respondent.
Civil Appeal No. 33 of 1984.
(From the Judgment and Decree dated 16.2.82 passed by the High Court Division in Second Appeal No. 45 of 1963.)
This appeal arises from Second Appeal No. 45 of 1963 decided by a Single Judge of the High Court Division (Mr. Justice M.H. Rahman) on 16th February 1982.
2. Appellants' predecessor instituted Other Suit No. 74 of 1960 in the court of Munsif 2nd Court, Sadar, Chittagong, for a declaration that the sale of Noabad jote No. 5 held by the Collector on 24th June 1953 and sold to the defendant-respondent was done without jurisdiction and was, therefore, void, invalid and inoperative. The sale did neither confer any right upon the defendant-respondent nor did it affect the plaintiff-appellants' interest in Schedule 2 lands.
3. In brief, appellant's case is that the suit, jute comprised 28, 35 acres of lands and out of this area 6.37 acres were tenanted with an annual rent exclusive of cesses of Tk. 49/8/- payable in two instalments, one in August and another in January, Appellant's predecessor purchased 11.75 acres of lands as detailed in Schedule 2 which is a part of Schedule 1 lands by a kabala dated 12th May 1936, His name was mutated in Mutation Case No. 176 of 1936-37. Zakir Hossain and Zahid Hossain were the purchasers of the remaining part of Schedule land. It was arranged that plaintiff appellant would pay Tk. 12/4/- and other two co-sharers would pay Tk. 37/4/- Plaintiff-appellant was in specific possession of Schedule 2 lands by demarcation and fencing all around since his purchase. Due to non-payment of the due share of rent of the aforesaid co-sharers for the instalment of January 1953 the jute, wrongly described at “Mahal No. 5 Tafur Ali," was sold on 24th January 1953 without issuing and serving any notice under lections 5, 6 and 7 of Bangal Laud Revenue Sales Act (Act XI of 1859) upon the plaintiff and the recorded owners of the jute or even in the locality and kutchery of the Malgujar in the manner required by law, result being that properties worth Tk. 40.000/- were sold at a shockingly low price of Tk. 400/- Defendant-respondent in collusion with other co sharers made the purchase without the knowledge of the plaintiff and the public in general. Plaintiff came to know about the tale on 24th June 1953 and moved an appeal before the Commissioner, Chittagong which was dismissed on 18th November 1953 on the ground of limitation. His revisional application before the Board of Revenue was also dismissed on 7th December 1954 Plaintiff was therefore, obliged to file the suit.
4. Respondent as the sole defendant contested the suit. His specific cate, in short, is that the plaintiff had no title to and possession in the suit land and his kabala is a bogus one. All notices and processes of the sale were duly and legally issued and served upon the recorded tenants of the jute. Defendant had no collusion with anybody and he purchased jute at an adequate and proper price at the time of sale of the jute for arrears of rent. Since 24th June 1953, the date of bit purchase, and 2nd October 1953 the date of delivery of possession of the suit land to him, defendant has been in possession. Zakir Hossain purchased his share of the jute from the defendant after the sale. Plaintiff also wanted to purchase his share but was unable to do so. Defendant made improvement of Schedule 2 lands at his own expense and also excavated the tank in the suit land. Plaintiff was not in possession of the suit land and the suit is, therefore, liable to be dismissed.
5. Trial court dismissed the suit First appellate Court allowed the appeal in part (O.S Appeal No. 387 of 1961) holding that the sale was without jurisdiction and void but that the trial Court's finding of possession In favour of the respondent was right. Defendant preferred Second Appeal No. 45 of 1963 and plaintiff also filed a cross objection. On 16th February 1982 both the appeal and the cross objection were heard by a Single Judge of the High Court Division who allowed the appeal and dismissed the cross-objection, set aside the decree appealed against and restored those of the trial court.
Being aggrieved, plaintiff-appellants moved this Court and obtained special leave to appeal on the following terms:
Prior to making his submissions on points of law raised in this appeal Syed Ishtiaq Ahmed, Counsel for the plaintiff-appellants, made pointed reference to the facts of the case. According to him, the facts involved would show that this was a case of mistaken identity of land inasmuch as the controversy which arises from the sale of "Mohal No. 5 Tafur Ali" Is due to such mistake and identity .As the lands of Schedule No. 2 which were purchased by the appellants' predecessor by a kabala 12th June 1936 are included in jote No. 5, Rajab Ali within mouza Dakshin Pahartali, P.S. Double Moorings, his interests were not affected by the sale "Mohal No, 5 Tafur Ali" under the provisions of Act XI of 1859. After the purchase appellant's predecessor got his name mutated in Mutation Case No 136 of 1936-37 and remaining portion of Schedule No.1 lands were purchased by Zakir Hossain and Zahid Hossain who got their names separately mutated in the same khatian. Appellants' land in Schedule No. 2 which, appertained to jute No. 5 Rajab Ali have been in specific possession of the plaintiff since he purchased it. Next, no notice under sections 5 and 6 of Act No. XI of 1859 was Issued or served upon the recorded owners of jute No. 5 Rajab Ali. After the dispute arose it was revealed that notice under section 5 of the aforesaid Act was show to have been served upon five persons, namely Tafur Ali, Tufan Ali, Sarada Chandra, Aparna Charan and Hafeza Khatun all of whom were already dead on the alleged date of service of notice upon them. The recorded owner of jute No. 5, Rajab Ali never received any notice, nor was any notice issued for affixation at proper place. Further, the tenant’s ledger would show that there was no dues as stated in the sale processes and proclamations upto 31st January 1953 in respect of jute No. 5 Rajab Ali, though arrears were calculated from May 1950 to 23rd September 1952. Also Mahal No. 5 Tafur Ali is not within P.S. Double Moorings but within P. S. Hathazari.
6. Appellants' Counsel contended that having regard to these facts, it would be entirely wrong to say that the impugned sale of Mahal No. 5 Tafur Ali would affect the appellants' lands which are included in jote No. 5 Rajab Ali. Not only names of the two jutes are different, they are situated in two different police stations. His next contention was that the notice under section 5 of Act No XI of 1859 was issued in the name of Mahal No. 5 Tafur Ali which lies in mouza Dakshin Pahartali within PS. Hathazari, notice under section 6 of the Act was also in the name of the same Mahal. The connected papers relating to the impugned sale were, corrected by the authority at the instance of Zakir Hossain and Zahed Hossain who were in collusion with the respondent so as to apply the same to jote No. 5 Rajab Ali.
7. Referring to the provisions of amended section 6 of Act No. XI of 1859 the learned Counsel submitted that there being no proof that the notices were sent to the proprietor of the jote by registered post, the alleged auction sale did not affect the appellants' right to the suit property of jote No. 5 Rajab Ali. In this connection the Counsel also submitted that the learned Judge of the High Court Division was not correct in applying the principle of the case of Province of East Bengal (Pakistan) Vs. Nirode Behari reported in 12 DLR 339 in much as he seemed to have equated issuance of notice with service of notice.
8. Mr. M H. Khondker, Counsel for the defendant respondent, submitted that this was not a case of mistaken identity as the lands in question are actually included in Mahal No. 5 Tafur Ali, one of the recorded tenants being Tafur Ali. No objection was raised as to any mistaken identity regarding the auction sale of the jote. Moreover, the Commissioner, Chittagong Division and the Board of Revenue dismissed the appellant's case on the round of limitation. Plaintiff knew about the sale immediately after it was held but he did not move the relevant authority within time. It did not appear that due to the wrong description in the notice plaintiff was in any way misled or did not at all know about the sale of the jute which was being auction sold. So far as notices under the provisions of Act XI of 1859 were concerned, the learned Counsel submitted that there was no irregularity in issuing them and conceded that if there were some irregularities these are covered by the amendment it to the relevant sections of the Act by Land Revenue Sales (Amendment) Act 1943 (Bengal Act II of 1943) and also the decision reported in 12 DLR 339.
9. Mr. Khondoker finally submitted that the suit for simple declaration that the impugned sale on 24th June 1953 was without jurisdiction and void is not maintainable, plaintiff being out of possession. Also, as the suit was filed seven years after the sale, on 18th July 1960 it was barred under the proviso to section 42 of her Specific Relief Act and Article 120 of the Limitation Act.
10. Appellants' Counsel tried his utmost to show that the impugned sale cannot be said to affect the property of jute No. 5, Rajab Ali whose proprietorship vests in the appellants, being the auction sale relates to Mahal No. 5, Tafur Ali and not to Jute No. 5, Rajab Ali. In the connection he also submitted that all papers relating to the sale which are maintained in the office of the Revenue authority were corrected after the dispute regarding the identity of the property was raised by the appellants on this point, it may be mentioned, no leave was granted. Neither has there been any confusion in the mind of the plaintiff regarding the identity of the land sold in auction nor was any objection on this ground raised before the Revenue authority or as a matter of fact before the Courts below. On the other hand, plaintiff appears to have known about the sale on the very day the auction was held and the sale took place, he himself being present on the spot on the day of the impugned auction sale. Also, as no leave was granted at the time of admission or subsequently after the admission (no prayer was also made in that behalf) this Court it not prepared to deal further elaborately regarding this ground which is now being canvassed before us. On top of it all, both parties seem to have understood their positions in relation to the property concerning which the impugned sale was held. It is too late, therefore, to make an attempt to score a victory on such point.
11. The only point upon which this Court granted leave relates to whether the High Court Division has wrongly decided the case on the question of the legality of service of notice by equating it with issuance of notice under section 6 of the Bengal Land Revenue Sales (Amendment) Act, 1943.
12. On the point of legality of the Impugned sale due to proper service of notice within the purview of section 33 of the Revenue Sales Laws the learned Munsif after referring to divergence of views expressed in two cases, namely Ratantilal Chakravorty Vs. Shomnath Chakravarty, (1957) 9 D.L.R 112 and Province of East Bengal (Pakistan) Vs. Nirode Behari Dutta,(1960) 12 DLR 339 held as follows:
13. Plaintiff-appellant being dissatisfied with his judgment and decree preferred the aforesaid appeal which was allowed by the learned Additional District Judge, Chittagong. In setting aside the judgment appealed against the learned Additional District Judge held:
On the point of possession, the learned Additional District Judge, however, held that "at from the material on record I agree with the learned Munsif that the defendant is in possession".
14. In deciding the appeal (S.A. No 45 of 1963) preferred by defendant-respondents and the cross-objection filed by plaintiff appellant which were heard together on 16th February 1982, the learned Single Judge of the High Court Division set aside the decree appealed against and restored that of the trial Court. Apart from his decision on the point of issuance and service of notice which went in favour of the defendant-respondent and which will be presently referred to us, his decision on possession and maintainability of the suit under section 42 of the Specific Relief Act may be seen. He held:
15. The learned Judge of the High Court division in referring to objections as to issuance and service of notice under the Bengal Land Revenue Sales (Amendment) Act, 1943, considered the case reported in 12 DLR 339. He placed reliance on this decision and held that "the sale cannot be annulled on the alleged ground of non-issuance and non-service of notice under section 6 of the Revenue Sales Law". There ii, however, no reference in his judgment to the earlier decision reported in (1957) 9 DLR 112.
16. In deciding the question whether the impugned sale is liable to be set aside on the ground of coo-issuance or non-service of notice upon which leave has been granted by us, our concern will also be to consider the correctness of the decision in (1960) 12 DLR 339. As the decision goes in favour of the defendant-respondent, the learned Counsel for him vigorously asserted its correctness, particularly of the following paragraph in that judgment which rum as follows:
17. Appellants’ contention regarding the error committed by the learned Judge of the High Court Division in equating issuance of notice with service of notice and thereby holding that the impugned auction sale could not be annulled on the ground of non-issuance or non-service of notice under section 6 of the Revenue Sales Law requires the consideration of the effect of section 6 of Act XI of 1859 as amended by section 2 of Bengal Land Revenue Sales (Amendment) Act, 1941, (Bengal Act II of 1943). These provisions are as follows:
18. Reference has been made to the provisions of this section along with other sections of the Bengal Land Revenue Sales Act in the above-mentioned decisions, both of which were decided by Chowdhury, J. as he then was, It, however, appears that the point as to whether non-issue of notice as mentioned in amended section 6 of the Act renders a revenue sale void was not decided SB that case, the facts Involved therein being different. The decision in the latter case decided by Chowdhury J, however, turned on the determination of this question it, however, and appears that for the determination of this point reference was made to section 33 of Act XI of 1859. Section 33 provides as follows:
19. In considering these provisions along with those of section 6 of the Act the majority of Full Bench of the Calcutta High Court held that non-compliance with the provisions of section 6 was not a mere irregularity but an illegality and therefore, the sale held without complying with these provisions was null and void as not being sale under Act XI of 1859, vide Lala Mobaruk Lal vs. The Secretary of State of India ILR 11 Cal. 200 FB. This decision appears have been over-ruled by the Judicial committee of the Privy Council in Gobinda Lal Ray vs. Ramjanam Misser, ILR 21 Cal. 70 corresponding to 20 IA 165. Their Lordships of the Committee observed:
20. The real reason which finds expression in their judgment would, however, appear from the following observations:
21. On consideration of these cases it appears that the sale without issuing notice of sale by registered post to the recorded proprietor has been considered to be a sale contrary to the provisions of Act XI of 1859 because such a sale would be in contravention of section 6 of the Act. The expressions "contrary to the provisions of the Act" which occur in section 33 are not, however, enough to entitle a person affected by such sale to get it set aside unless at the same time he could prove that he suffered substantial injury because of such irregularity. Further, this ground is also to be taken in an appeal before the Commissioner under section 2 of the Bengal Land Revenue Sales Act, 1868. A sale is not without jurisdiction merely because no notice of sale by registered post was issued to the recorded proprietor. The sale, could, however, be avoided if the requirements laid down in section 33 of the Act are not complied with. Since plaintiff-appellants were not able to prove the non-fulfilment of requirements of that section he could not get the declaration prayed for by him.
22. This conclusion would have sufficed without consideration of any other matter, but since controversy has been raised as to whether mere issue of notice of sale as required under amended section 6 of the Act without proof of its actual service on the recorded proprietor could render the sale valid, this may receive our consideration.
23. Mr. M.H. Khondker, Counsel for the appellant, while supporting the view that even though service of notice was not proved since the records maintained in the Revenue office showed that notice of sale was issued, the auction sale which was held in pursuance thereof was perfectly valid. In other words, he equated issues of notice with service of notice, though no notice was proved to have been served upon the recorded proprietor. In support of his views he referred to the case of Banarsi Debi vs. The Income-tax Officer, AIR 1964 5G 1742. In the case, notice under section 4 of Income-tax (Amendment) Act, 1959 was issued in time but served upon the assessee out of time. Question was raised whether the expression "issued" was equivalent to expression "served". It was held that the expression "issued" was not be to understood in a literal sense so as to mean "sent." For this would be the narrow sense of the term. The expressions "issued" and "served" aroused as interchangeable terms both in dictionaries and statutes. "Issued" means “act of sending out, put into circulation, delivery with authority or delivery." In this connection reference may be made to the provisions of section 27 of the General Clauses Act (X of 1897) which reads thus:
24. Having regard to this decision also, we find no hesitation in holding that the learned Judge of the High Court Division committed no illegality in equating issue of notice with service of notice. Moreover, as already observed, this controversy would appear to be meaningless when it is found that the plaintiff-appellant was himself present when the impugned sale was held and did nothing to prevent it or have it set aside before the period of limitation expired.
25. Plaintiff-appellant filed an appeal before the Divisional Commissioner which was dismissed on 13th November 1953 as being filed beyond the period of limitation. The Board of Revenue also did not entertain his revisional application against the order on the same ground.
26. Surprisingly enough, plaintiff-appellant did not file any suit for annulment of the impugned sale under the provisions of (he aforesaid Act until at the end of lapse of 7 years when he decided to file the present suit on 18th July 1960. During this period and also subsequently plaintiff-appellant had been out of possession of the suit land. Maintainability of the suit on the ground of limitation has, therefore, justifiably been raised by the defendant-respondent. Lack of knowledge of the impugned sale due to non-service of notice might have been a good ground for overcoming the plea of limitation, but plaintiff-appellant's conduct from the date of the impugned sale quite obviously disentitles him to overcome the difficulty. However, as it appears, appellants' counsel did not raise any serious contention on the point of limitation.
27. The learned Counsel for defendant-respondents submitted that since plaintiff-appellant did not pray for recovery of possession as admittedly he was out of possession since 2nd October 1953 the date of delivery of possession to defendant-respondent on the basis of the impugned sale, his suit under section 42 of the Specific Relief Act for mere declaration that the sale, of Noabad jute No. 5 held on 24th June 1953 was without jurisdiction and void and further, that the sale did not confer any right on defendant-respondent and did not affect his interest In Schedule 2 lands was not maintainable. It appears that plaintiff-appellant realising his mistake filed an application for amendment of the plaint before the High Court Division praying:
This amendment was disallowed on the ground that though trial Court clearly found that plaintiff-appellant was out of possession of the suit land, he did not make such application for amendment thereby causing such inordinate delay which stood against him. It is true that amendment can be allowed at any stage of the proceedings and a long line of decisions including those of this Court supports this view but as has been pointed out by us in the case of Radha Krishna Jogani Vs. Dwarka Das Agarawalla, (1984) 36 DLR 253 AD, there may be valid considerations for not allowing such amendment. We observed:
28. We find no difficulty in agreeing with the learned Judge of the High Court Division that after such an inordinate delay in not filing the amendment petition it will be most inequitable to allow the prayer for amendment. For the reasons stated above, the appeal is dismissed. There will, however, be no order as to costs.