Baijnath Sahu and Others Vs Lala Sital Prasad and Others

Macpherson, J.@mdashI would answer this question in the affirmative, for there was nothing due from the plaintiff which was recoverable as an arrear of Government revenue, and therefore the provisions of Act XI of 1859 are not applicable to the case, and the plaintiff is not debarred by that Act from bringing the present suit. As the partition was being carried out by the Collector under a decree of a Civil Court, and as the latter had directed that all the costs of the partition should be paid by the proprietor of the 1�-anna share alone, the Collector had no power to order the Ameen''s costs to be paid by the plaintiff. That this is so, appears upon a consideration of Regulation XIX of 1814 and Act XI of 1838, upon which two enactments the whole question turns. It is quite clear that, when the partition is made under a decree of a Civil Court, the Court, and not the Collector, has power to direct by whom and in what proportions the costs are to be paid.

2. Section 3 of Regulation XIX of 1814 enacts, that "the division of every zamindari, independent talook, or other estate paying revenue immediately to Government, which may be ordered to be divided into two or more distinct estates, and the apportioning of the fixed jumma on the whole of the estate on the several shares, are to be executed under the superintendence of the Collector of the District in which the estate may be situated."

3. Section 4 relates to cases in which the co-sharers all join in applying to the Collector for a partition, without their having recourse at all to a Civil Court. It is provided that all authorised expenses incurred in making the division are to be borne by the proprietors in the proportion which the jumma of their respective shares, after the division has been completed, shall bear to the jumma of the whole estate. "This rule, however, is not (to) be understood to preclude the parties concerned from entering into private adjustment among themselves of the proportions in which such expenses shall be severally borne by them; and whenever the whole amount demandable on that account shall be tendered to the Collector by one or more of the parties, he shall receive the same accordingly; and, on the contrary, if the amount be not so tendered, he is to enforce the rule above laid down (if it be not paid) by the same process, against the sharer or sharers failing in the payment of their proportions, as is prescribed for levying arrears of revenue."

4. Section 5 relates to cases in which the partition is to be carried out by the Collector in obedience to the direction of a Civil Court. It says: "Whenever the Courts of Justice may pass a decree awarding to any person the proprietary right in a portion of an estate paying revenue to Government, and may issue a precept to the Collector requiring him to divide the estate, * * * * they shall make it a general rule to direct at the same time that the party or parties who may have withheld the right so decreed, shall defray the whole of the expense which may be incurred in the subsequent process of dividing, separating, and giving possession of, and apportioning the public revenue on the portion of the estate or land so decreed. Provided, however, that if any special reason shall appear for a deviation from this general rule, the Court shall be at liberty to direct the expense in question to be defrayed by all, or any of the parties to the decree, in such proportions as the Court passing the decree may, from a consideration of the particular circumstances of the case, deem equitable. Copies of all orders which the Courts may pass under this section are invariably to be transmitted to the Collector for his guidance, together with the precept which the Court may issue to him requiring him to divide the estate."

5. It will be observed, that it is not provided that the Collector is to enforce payment of expenses or costs which are payable u/s 5, or that the amount is to be levied (like costs or expenses payable u/s 4), by the process "prescribed for levying arrears of revenue."

6. Section 12 enacts, that "when an estate shall be ordered to be divided, the Collector shall appoint a creditable Ameen to make the division, who shall receive a percentage, on the amount of the jumma of the whole estate, as a remuneration for his trouble and the expense of establishment."

7. Section 15 fixes the amount of the Ameen''s percentage, and provides that when a measurement of the land is necessary, the additional establishment for the performance of this special duty "shall be separately paid by the several sharers in proportion to their respective interests in the estate, by a monthly allowance to be approved by the Collector." This section also provides that the Collector on delivering the sunnah to the Ameen, shall advance to him one-third of his percentage, and it gives directions as to how and when the remaining two-thirds are to be paid.

8. But this section (15) is repealed by Act XI of 1838, section 2 of which enacts "that it shall be lawful for the Sudder Board of Revenue at Calcutta, with the sanction of the Governor of Bengal, to fix the remuneration of an Ameen, and to cause the same to be levied from the parties concerned, in the same manner as an arrear of revenue, at such periods, and in such portions, as the said Board may think fit."

9. It is under the authority supposed to be given by these sections, that the Collector, in the present case, treated the amount in the payment of which the plaintiff made default, as an arrear of revenue, and sold his share under Act XI of 1859.

10. Section 5 of Regulation XIX of 1814, which gives the Civil Court power to direct by whom and in what portions the expenses of the partition are to be borne, remains unrepealed. Section 15 alone is expressly repealed by Act XI of 1838; and the object of that Act is merely to abolish the fixed percentage, and the other rules relating to the percentage contained in section 15, and to substitute in their room a variable remuneration to depend upon the discretion of the Board of Revenue, exercised with the sanction of the Governor of Bengal. Section 2 of Act XI cannot be read as repealing one of the most material parts of section 5 of Regulation XIX of 1814, merely because it empowers the Board of Revenue, with the sanction of Government, to fix the remuneration of an Ameen, and to cause the same to be levied as an arrear of revenue in such proportions as the Board may think fit. It is to be read as applying only to cases u/s 4, which empowered the Collector to enforce payment of the expenses incurred in making partitions under that section, and not as interfering with the jurisdiction expressly given to the Civil Courts by section 5.

11. Section 15 of Regulation XIX of 1814 having been repealed, the Collector is not now, whatever he may have been so long as that section remained in force, under any obligation to make an advance to the Ameen. If the party who has been directed by the Civil Court to pay the costs, does not do so, and if none of the others interested put the Collector in funds to proceed, all that the Collector has to do is to hold his hand, and report the state of things to the Civil Court, under whose precept he is acting. The Civil Court has ample power to deal with such a contingency.

12. It is not unworthy of remark, that in none of the letters or orders of the Board of Revenue upon the subject of partitions, can I find any allusion to section 5 of Regulation XIX of 1814, or to the case of a partition which is made by the Collector in obedience to an order of a Civil Court. Section 4 is the section to which alone express reference is made, and the form which is given in the later rules as that to be used by the Collector in making his report to the Commissioner as to batwaras (partitions) which are pending, is expressly stated in the rule to be the form of the report to be made by Collectors under clauses 1 and 3 of section 4. It is probable that it never was intended by the Board of Revenue that their rules should be applied to cases falling u/s 5.

13. It remains to consider whether the sale having, as a matter of fact, been conducted under Act XI of 1859, the present suit is therefore barred. I agree substantially with Mr. Justice Dwarkanath Mitter in the observations which, in referring the matter to a Full Bench, he made on this part of the case. I think that as nothing was due from the plaintiff which could legally be recovered from him as an arrear of Government revenue, the Collector had no jurisdiction to proceed against the plaintiff''s property under Act XI of 1859. That Act defines what the term "arrears of revenue" means, and declares that the "Civil Courts shall have no jurisdiction to interfere when sales have taken place under the provisions of the Act." In the present case, no arrears of revenue was due, nor anything which could legally be levied as such. Act XI of 1859, therefore, did not apply to the case at all, and the sale did not take place under its provisions.

14. The case resembles an adjudication of bankruptcy where there is no petitioning creditor''s debt, or where the alleged bankrupt is not a trader,--see Perkin v. Proctor, (2 Wilson, 382). The Collector''s jurisdiction was a limited one, and as he had no power to ask the plaintiff to pay any part of the costs of the batwara (partition), and there was therefore no demand against the plaintiff realizable in the same manner as arrears of revenue, he had no power to order the sale; and, consequently, the case is not one within section 33 of Act XI of 1838. There was an absence of jurisdiction to order the sale, and not a mere error or irregularity in conducting it.

15. On the whole, I think the plaintiff''s suit was properly brought in a Civil Court, although no appeal was made to the Commissioner u/s 33 of Act XI of 1859.

Sir Barnes Peacock, Kt., C.J., Bayley and Glover, JJ.

Concurred.

Jackson, J.

16. (After stating the facts, and observing that it did not appear that the present question had been distinctly raised until the special appeal, continued): I proceed to state the opinion at which I have arrived, and the subject may, for this purpose, be conveniently divided into two heads.

1st.--Is it competent to the Civil Courts, with a view to affording relief to a suitor who complains of a sale as made without authority of law, to inquire whether, in the particular case, the Collector had authority to sell?

2nd.--Was the Collector in the present case competent to sell?

17. The jurisdiction of the Civil Courts is broadly based on the 1st section of the Code of Civil Procedure, which declares that "the Civil Courts shall take cognizance of all suits of a civil nature, with the exception of suits of which their cognizance is barred by any Act of Parliament, or by any Regulation of the Codes of Bengal, Madras, and Bombay, respectively, or by any Act of the Governor-General of India in Council."

18. This section comprises matters cognizable by the Civil Courts. By the use of the words "suits of a civil nature," the Code avoids the details given in the Regulations, and it is thereby intended to include all suits of a civil nature. The provision for exemption is generally given so as to include exemptions already made, or which may hereafter be made by any Act of Parliament, Regulation, or Act. For instance, all causes of action in matters of a criminal nature are excepted by the Regulations: actions thereon will not, therefore, lie in the Civil Courts under this Code. And certainly the compulsory sale of a man''s estate, in order to realize a demand for which he was not liable, on account of the expenses attending an operation which he did not desire, and which was never completed, is a wrong than which it is difficult to conceive any more serious. And the recovery of an estate taken out of the plaintiff''s hands by such a sale appears to be a relief which he may most reasonably ask for, unless the cognizance of the wrong and the granting of the relief be expressly barred by any existing legislative prohibition.

19. The purchasers contend, that section 33, Act XI of 1859, expressly prohibits the cognizance of this suit, and we must, therefore, consider the precise effect of that section. The words are: "No sale for arrears of revenue or other demands realizable in the same manner as arrears of revenue are realizable, made after the passing of this Act, shall be annulled by a Court of Justice, except upon the ground of its having been made contrary to the provisions of this Act, and then only on proof that the plaintiff has sustained substantial injury by reason of the irregularity complained of; and no such sale shall be annulled upon such ground, unless such ground shall have been declared and specified in an appeal made to the Commissioner u/s 25 of this Act; and no suit to annul a sale made under this Act shall be received by any Court of Justice, unless it shall be instituted within one year from the date of the sale becoming final and conclusive, as provided in section 27 of this Act; and no person shall be entitled to contest the legality of a sale, after having received any portion of the purchase-money. Provided, however, that nothing in this Act contained shall be construed to debar any person considering himself wronged by any act or omission connected with a sale under this Act from his remedy in a personal action for damages against the person by whose act or omission he considers himself to have been wronged."

20. It will be seen that there is one ground, namely, a contravention of the provisions of the Act accompanied by proof that the plaintiff had sustained substantial injury by reason of the irregularity complained of, upon which sales made "after the passing of the Act" and "under the Act" may be annulled by a Court of Justice, provided that the plaintiff shall have made an ineffectual appeal on the same ground to the Commissioner, and provided that the suit be commenced within one year, and that the plaintiff have received no part of the purchase-money.

21. Now, the only ground on which the Commissioner can entertain an appeal and annul the sale is stated in section 25, viz., that "it shall appear to him not to have been conducted according to the provisions of the Act."

22. Taking the two sections together, it is clear that the appeal to the Commissioner and the resort to a Civil suit here spoken of, and guarded by so many restrictions, were meant to apply to errors of procedure, the authority to sell being unquestioned.

23. But if the respondent''s contention be correct, the Collector might not merely sell for an arrear of revenue where no arrear was due, but sell one estate for the arrear due upon another, or sell to recover an amount due upon a bond; and so long as he carefully observes the form and rules prescribed by the Act, the unfortunate owner would be without a remedy. For the power reserved to the Commissioner by section 26, to represent a case of hardship or injustice to the Board of Revenue, who, if they see cause, may recommend to the Local Government to annul the sale, a power which may be exercised or not at the discretion of the Commissioner, affords a safe-guard (if it would touch the case at all) very far short of the right of submitting one''s wrong to the Courts of Law, which are governed by settled principles, and where redress, if denied by an inferior tribunal, may be obtained on appeal.

24. I think that section 33 refers to sales for arrears of revenue, &c., made under the Act, that is, where the Collector had authority to sell, but which from defect of procedure are productive of injury to the party, may be set aside; but that, cases in which there is a total want of jurisdiction in the Collector, for example the cases mentioned in the 8th^* section, are not touched by section 33 at all.

25. This view derives confirmation as well as from the different class of circumstances by which the sale is to be affected, as from the use of a different term in section 8,^* to indicate the way in which the sale is to be affected; for, while section 33 provides that by reason of irregularities in the conduct of the sale, the sale may be annulled or cancelled and have its efficacy taken away, on the other hand, there seems to be fair ground for inferring, that section 8 refers to circumstances which a priori ought to bar the sale, and which, if the sale take place notwithstanding, will avoid it or make it avoidable.

26. It is no doubt possible to make too much of mere verbal distinctions, and all that is necessary for the purposes of the present discussion is to show that the Act itself contains a reference to cases in which a sale under the Act might be avoided other than the cases in which an appeal might be entertained by the Commissioner.

27. But it is quite possible to conceive sales under colour of Act XI which are not sales on account of an arrear of revenue or of any demand recoverable in the same manner as arrears of revenue; and the appellant contends that the sale which took away his estate is a sale of that character.

28. Take, for instance, the case of a Collector selling land which was not an estate paying revenue to Government, or selling for the realization of unpaid Municipal taxes. It would clearly be an answer to a suit brought for the purpose of setting aside such a sale that the suit was barred by section 33, Act XI of 1859.

29. Where the competency of a Court or an authority invested with a limited jurisdiction to do a particular act depends upon a condition precedent, and that condition is not shown to exist, the act done in the absence of such condition will, I think, be wholly void, and an action will lie to set it aside, as in the case of an adjudication of bankruptcy where the party adjudged a bankrupt is not a trader, or there is no debt to a petitioning creditor. I take it, therefore, that if the plaintiff can show that the act is irrelevant, his suit to set aside the sale will be quite maintainable, though he should not have made an appeal to the Commissioner.

30. I am under the impression, that it has been decided by the late Sudder Court that, in a suit of this description, the 12 years'' rule of limitation, and not that of one year, will apply. It is necessary, therefore, to see whether in this case, the sale was under the provisions of the Act. Was it made on account of any demand which, by any Regulation or Act in force, is directed to be realized in the same manner as arrears of revenue?

31. Act XI of 1859 does not itself contain any enumeration of such demands, though some of them are specified; but the authority for so realizing particular demands is contained in the enactments which deal with the different subjects.

32. Regulation XIX of 1814 and Act XI of 1838 have been supposed to give authority for treating the expenses of batwaras (partitions) generally as demands recoverable under the Sale Law. But it seems very clear that such authority extends only to cases in which the parties make direct application to the Collector.

33. The Act of 1838 was merely a substitute for the repealed section 15 of Regulation XIX of 1814. That section itself provided rules under which the Ameen was to be remunerated by a fixed percentage, and certain portions of the sum allowed were to be paid to him at various stages of the inquiry.

34. By the new Act, it was left to the discretion of the Board of Revenue, with the sanction of Government, to fix the remuneration of an Ameen, and to cause the same to be levied from parties concerned, in the same manner as an arrear of revenue, at such periods and in such proportions as the Board might think fit.

35. The repealed section did not contain any authority for the levying of the Ameen''s fees, the needful authority being contained in section 4, by which, unless the parties came to an agreement as to the proportions in which the expense was to be borne, and made tender to the Collector accordingly, the whole was to be levied from them "by the same process against the sharer or sharers failing in the payment of their proportions as is prescribed for levying arrears of revenue." That section has not been repealed, nor has the 5th section; and consequently the words of Act XI of 1838 must be so read with the words of those two sections; that the words "parties concerned" shall be interpreted strictly in accordance with the circumstances, that is to mean the co-sharers in general where the application has been made to the Collector direct but where the partition is under a decree of the Civil Court, then the sharer or sharers who may have been ordered by the decree to bear the expense.

36. Nor indeed, now that the Collector is no longer called upon to advance the funds required, does there seem to be any reason why he should proceed in the matter until he has received the necessary amount; and if a precept were issued in any case to the Collector to make a batwara (partition) at the expense of any party indicated, I conceive that it would be a perfectly good return if the Collector certified that the expenses had not been deposited, on which the Court might proceed to make further order as it thought fit. If the law were otherwise, one co-sharer might ruin or seriously injure the others by obtaining a decree for partition at his own expense, and then, by willfully with-holding the Ameen''s fees, causing the whole estate to be put up to sale.

37. In this case it is quite clear that the plaintiffs were under no liability to pay in the expenses of a proceeding which was not for their benefit, and that the sale, under such circumstances, of their estate as for an arrear of Government revenue, was an act done wholly without authority; that the sale conveyed no title, and that the plaintiffs are, consequently, entitled to recover possession by a suit in the Civil Court.

38. I would, therefore, answer the question put to us in the affirmative. I have stated my own view founded upon such construction as I have been able to put upon the sections of Regulation XIX of 1814, and it is a satisfaction to me to be able to cite in confirmation of it the opinion of Sir Henry Ricketts, one of the ablest and most experienced Revenue Officers this country has seen in our days. The opinion is to be found in a little work of his, no doubt of an elementary character, but prepared with much care for the assistance of young officers in passing their examinations; and it is all the more emphatic from the particular form, that of question and answer, in which the book was composed. The question and answer will be found at page 52 of the 2nd edition.