JUDGMENT
Wort, J
1. This is the defendant’s appeal in an action to set aside a patni sale of a patni in Mauza Duarimshal. The sale took place on the 1st Jaistha 1333 B.S.; the price realised was Rs. 230.
2. The Patni Duarimahal was granted to one Chandra Nath Sa Babu and his brother Nehal Sa Babu was also one of the grantees from the predecessor of the first defendant the [zamindar. The second defendant in the action is the purchaser Dabi Lal Singh Deo, who is a relative of the zamindart and one of the claims in this case is that the sale was brought about by the fraud of the zamindart one of the suggestions being based on the fact that the purchaser was a relative. But it had better be said at once that the learned Subordinate Judge, in trying the case, has definitely found against the alleged fraud of the first defendant and has also come to the conclusion that the second defendant did not purchase as the benamidar of the first defendant as was alleged. This finding is not contested and, therefore, may be dismissed from my consideration.
3. The sale was held for arrears of rent amounting to Rs. 16 11 6 I have stated that the original grantees of the patni were Chandra Nath Sa Babu and Nehal Sa Babu, but it was taken in the name of Chandra Nath alone.
4. The plaintiff’s title to the patni was in, this way. Chandra Nath executed a mortgage of the patni to one Jai Chand Chowdhury who got possession. On the death of Chandra Nath Sa Babu, Nehal Sa Babu, his brother, became the sole patnidar by survivorship. On the death of Nehal Sa Babu, his son Bihari Nath Sa Babu got possession but by a subsequent mortgage as security for a loan of Rs. 1,000 the patni was mortgagel to Kartik Ojha and Keshab Ojha on the 27th Falgun 1309 and thus they got possession. There were a number of mokarrari leases granted by Nehal Sa Babu during the currency of those mortgages and eventually the son, Bihari Nath Sa Babu, having got into debt, sold the patni to one Ohakra-daar Mahto for Rs. 6,000, who was the original plaintiff in this action but during the earlier stage he died and his sons were substituted.
5. In the first place it is to be noted that Chakradhar did not get his name registered in the zamindars sherista in accordance with Article 8 of Regulation VIII of 1819, and, therefore, was not recognised by the zamindar. No question arises by reason of the fact that the notices iinder Clause VIII, Sub-clause (2) of Regulation VIII of 1819 were not served en the plaintiff, but the case is that the notices were not served in accordance with the Regulation and were not published at the principal town or village upon the land of the defaulter. The second clause of para. 8 of Regulation Till provides that from the 1st day of Bysakh, that is at the commencement of the following year from that of which the rent is due
the zamindar shall present a petition to the Civil Court of the District, and a similar one to the Collector, containing a specification of any balances that may be due to him etc.
6. That notice has to be stuck up in a conspicuous part of the cutchery and a similar notice is to be stuck up at the auddar cutchery of the eamindar himself and another notice is to be published at the principal town or village of the land of the defaulter. There is then a clause that the zamindar shall be exclusively answerable for the observance of the forms prescribed and the notice required to be sent into the mufussil shall be served by a single period, who shall bring back the receipt of the defaulter or his manager, or in the event of inability to procure this, the signature of three substantial persons. The provision of para. 10 of the Regulation is that the notice which is to be stuck up in the cutchery of the Collector Bhall be taken down at the time of the sale.
7. The main contention in this case is, as I have stated, that the notice was not stuck up at the principal town or village and that the receipt in accordance with the Regulation was net obtained; nor was it Bigned by the manager or the defaulter, nor did three substantial persons sign it according to the Regulation. It was also contended that the Regulation, so far as the posting of the notice at the cutchery of the Collector was concerned, was not complied with, and although it was stuck up it was taken down a day before the sale and that is, it is, urged, a breach of the Regulation.
8. The learned Subordinate Judge has found that the Regulation has not been complied with mainly on the ground that the notice was not stuck up at the principal town or village.
9. Now the argument addrersad to us by Mr. P.-R. Das on behalf of the defendant, appellant is thie, that the learned Subordinate Judge has misdirected himself by not appreciating the decision in Maharajah of Burdwan v. Tarasunduri Debt 9 C. 619 in which a decision of Sir Barnes Peacock in Sona Beebee v. Lall Chartd Chowdhry 9 W.R. 242 was referred to. The learned Subordinate Judge in the course of his judgment quotes a passage from the judgment in that case to this effect:
It seems to their Lordships that the object of the Regulation was that the due service or publication should not be left a matter of controversy. The evidence should be secured immediately afterwards, and exist in writing and be ‘referred to by the proper officer as part of the foundation of the sale.’
10. The misapprehension which, it is contended, the learned Subordinate Judge was under, is the one which was suggested by the respondent in Rajnamin Mitra v. Ananta Lal Mondul 19 C. 703. in which it was said that in the case of the Maharajah of Burdwan v. Tarasundari Debi 9 C. 619 the Judicial Committee of the Privy Council intended to say that whatever the publication of the notice in the defaulter’s cutchery is die puted, evidence of the fact must be proved in the way it is provided by the Regulation. The learned Judge in Rajnarain Mitra v. Ananta Lal Mondul 19 C. 703. held that the Judicial Committee of the Privy Council intended to lay down that if other evidence established the due publication beyond doubt a defect in the receipt will not vitiate the sale.
11. In the case of Maharajah of Burdwan v. Tarasundari Debi (9 C. 619. Lord Fitzgerald in delivering the opinion of the Judicial Committee of the Privy Council had made this statement:
Their Lordships desire to point out that the due, publication of the notices prescribed by the Regulation forms an essential portion of the foundation on which the summary power of sale is exercised, and makes the eamindar, who institutes the proceeding, exclusively responsible for its regularity. Their Lordships do not, however, intend at all to controvert a decision, to which their attention was called, of Sir Barnes Peacock when he filled the office of Chief Justice of the High Court of Bengal, to the effect that if the not ice itself has been duly published, if it is not a matter of controversy, if the fact was ascertained that it was published, then one would not regard any objection either to the form of the receipt or the absence of the receipt itself.
12. Mr. P.R. Das has argued that had it not been for the misoonception of the decision of Sir Barnes Peaceck in Sona Beebee v. Loll Chand Chowdhry 9 W.R. 242 and the Privy Council in Maharajah of Burdwan v. Tarasundari Debi 9 C. 619, the decisions to which I have just made reference, the decision of the learned Subordinate Judge would have been different. He contends that the learned Subordinate Judge persuaded himself that the evidence proving the service of the notice at the cutchery of the defaulter must be of such a nature that there could be no doubt about it; in other words, it must stand uncontroverted before he could say that although the Regulation, so far as the production of the receipt was concerned, had not been complied with, yet the sale was not vitiated. Bat in Maharani of Burdwan v. Krishna Kamini Dasi 14 C. 365 at p. 373. Lord Hobhouse in stating the opinion of the Judicial Committee said that in the case of Maharajah of Burdwan v. Tarasundari Debi 9 C. 619
this Committee found that the question whether the requisite formality had been observed depended on conflicting evidence, but that the statutory mode of proof had clearly not been followed, and they held that the decision must go against the zamindar, whose business it was to follow the prescribed method. They did not differ from Sir Barnes Peacock, nor did they hold that the statutory proof was the only proof that could be given.
13. In my judgment, however, if the Subordinate Judge in this case has taken the view that the evidence of publication in the village or town in the patni must be established by evidence which is not conflicting, I think he finds support from the decision of the Privy Council.
14. Now as to the question of whether publication has been proved. The point as to the recsipt may be disposed of at once. The peon, who went to the village, states that he inquired of persons in the village if Chandra Nath Sa had any cutchery in the village and they replied ‘no’; thus he inquired and was told by that chowkidar that Chandra Nath Sa Babu was dead and that Bhola Babu was his man. He then called upon Bhola Babu who was informed that he had a Istahar and that he took the Istahar and gave him a receipt in the printed form. The receipts are Exs. H1 to H3 and purports to be signed by Bhola Nath Sa as the uthorised agent of Chandra Nath Sa.
15. The facts are that it has bean shown by the evidence in the case that Bbola Babu was merely looking after the affairs of the widow of Chandra Nath, and indeed there is no evidence other than the statement of the receipt itself that he was the authorised agent for Chandra Nath. The three substantial persons, so called, who signed the receipt are three boys about 14 or 15 years of age and of course it would be ridiculous to hold that they were substantial persons within the meaning of the Regulation. It cannot be held that the Regulation was complied with in so far as the receipt was concerned and, therefore, the learned Subordinate Judge’s decision on that point must be affirmed.
16. The evidence as regards the service by the peon in the principal town or village is conflicting and it is at this point, it is suggested, that the learned Subordinate Judge has misdirected himself. It is said that he has not applied his mind to the evidence and come to a definite conclusion in regard to the matter, that he has misdirected himself in so far as lie thought that if the evidence was conflicting he was relieved of the responsibility of deciding this fact and had to decide the main issue in the case on the basis of whether the receipt in conformity with the Regulation had bean produced. But so far as the question of law is concerned, I think the appellant is wrong. From the decision of Maharani of Burdwan v. Krishna Kamini Dasi 14 C. 365 at p. 373 it does appear that in order to dispense with the receipt, evidence of the posting of the notice must not be conflicting. However, apart from this point, it is possible to decide the case on another ground. The learned Judge in the trial Court has come to a distinct conclusion that the notice was not served. The peon was the principal witness to prove the sarivca of the notice in the village. He says that he first went to Nipania and took the chowkidar and they bath then went to Duarimahal which is a mile distant from Nipania. Ha again asked the chowkidar to call some residents of Duarimahal Four parsons were called, namely Sidam Manjhi, Phalari Manjhi, Ramdhan Kara and Ladam Manjai. Tha peon states that be then informed these parsons his business and than made tha inquiries as to the cutchery of Chandra Nath Bibu to which I have already mide referance. In the absence of such a cutchery a Bjaga Mouzi Thakursthan was pointed out as being the central part of the village and on that it is alleged that he affixed a copy of the Isthar on a wooden post. The chowkidar and the peon then went back to Nipania and eventually the receipt was given by Bhola Natb.
17. Three persons out of the four decy absolutely that any person published the notice acccording to the caee as stated by the peon, two of them stating that there was no beat of drum. Falari Majhi or Phalari Manjhi, who says that in his presence the notice was posted, states in cross-examination that the post upon which the notice is said to have been stuck was touched only by Santhals and that Musul-mans(ofwhom the peon is one) are not allowed to touch it.
18. The learned Subordinate Judge in that State of the evidence comes to the conclusion that he is not satisfied that due publication of the sale notice was made in the village. It is contended, however, that the peon has been disbelieved largely on the ground that no instructions were produced showing his authority to proceed to the village, no bills for travelling allowance were produced, and Mr. P.R. Das rightly points out that if these things had been called for they no doubt would have been produced. To that extent the criticism of the appellant is justified. But we are met with the fact that the witnesses, who came forward, have not been believed by the learned Subordinate Judge, and that being so it is impossible for us to say that the evidence which was given by these witnesses should be accepted by this Court when the learned Subordinate Judge, who saw the witnesses, declined to believe their testimony. Nor can wo say that in this cage the publication is not a matter of controversy. It was further contended by Mr. P.R. Das that as it was proved that the peon went as far aa Nipania being only a mile a way the probabilities are that he did his duty by actually going to the village itself. But if we are not satisfied with the evidence of the peon, it is clear that the Regulation has not been complied with.
19. It is doubtful whether the notice which was posted at the cutchery of the Collector was kept up until the date of the sale in accordance with the Regulation, and indeed it has been found that it was removed one day before the sale took place. This is certainly a breachri the Regulations and reliance is placed upon the case of Bejoy Chand Mahatap v. Atulya Charan Bose 32 C. 953; but in that case the notice in the Collector’s cutchery was taken down each day at 5 p.m. which was held to be a material irregularity. Whether this would be sufficient in itself to entitle the plaintiff to have the sale set aside and whether the fact that the contents or form of the notices in this case have not bean proved is in itself sufficient for that purpose, it is unnecessary to decide having regard to my finding that it has not been proved that the notice was stuck up at the village, and that no valid receipt was given.
20. The appeal, therefore, fails and must be dismissed with costs.
Fazl Ali, J.
21. I agree