Judgment

Patanjali Sastri, J. - This is an appeal from a judgment and decree of the High Court of Judicature at Patna reversing a decree of the Subordinate Judge of Bhagalpore and decreeing the respondents suit to set aside a revenue sale of an estate and to recover possession thereof. The estate is part of Mahal Matha Dih, Tauzi No. 3411 paying a revenue of Rs. 132-5-0. In June 1867 there was a collectorate partition of the mahal whereby 9a. 6p, share of the village Narainpore comprised in the mahal was carved out as Tauzi No. 4038 and separately assessed to a revenue of Rs. 16-6-0. On 8-1-1868, the then proprietors of the separated estate executed a kabuliyat or kistbandi agreeing to pay the Government revenue in two instalments of Rs. 8 and Rs. 8-6-0 in the months of April and December respectively every year. Tauzi No. 4038 was further sub-divided on the application of one of the co. shares in the year 1920-21 and the separated share was entered as Tauzi No. 4038/1 bearing a revenue of Rs. 4-8-0, the residue of the estate being jointly held by the other co-shares and entered as Tauzi No. 4038 (Ijmal) with a separate revenue of Rs. ll-14-0. On 30-4-1939, the Collector of Bhagalpore issued a notification under S. 6, Bengal Land Revenue Sales Act (XI [11] of 1859) (hereinafter referred to is the Act) which was made applicable to the Province of Bihar also, stating that an arrear of land revenue of Rs. 2-8-6 due in respect of Tauzi No. 4036 (Ijunal) not having been paid on or before the 28th March, the last day fixed for its payment, the property would be solar by public auction on 5-6-1939. The sale was accordingly held on that date and the estate was purchased by appellant 1 as the highest bidder for a sum of Rs. 630. The sale was duly confirmed and an order for delivery of possession to the purchaser was also made by the Collector on 11-1-1940. An appeal to the Commissioner having proved unsuccessful, the respondents instituted the present suit on 4-6-1940.

2. The respondents case, so far as it is material for the purpose of this appeal, was that no arrear of revenue was in fact payable in respect of Tanzi No. 4038 (Ijmal) on 28-3-1939 as on a proper calculation, the respondents account was in credit and that the Collector had, therefore, no jurisdiction to sell the estate as he did on 5-6-1939. It was alleged that although the original Tanzi No. 4038 bearing a revenue of Rs. 16-6-0 was subdivided in 1920-21, the kistbandi of 1868 relating thereto continued in force and accordingly the reduced sum of Rs. 11-14-0 separately assessed in respect of Tanzi No. 4038 (Ijmal) was payable in two instalments of Rs. 5-14-0 and Rs. 6 in the months of April and December respectively as before.

3. The suit was contested by the appellants who denied the genuineness and truth of the kistbandi of 1868 and pleaded that even if true it was not binding on the revenue authorities as the batwara officer had no power to change the instalments of Government revenue fixed at the permanent settlement of the parent estate. The arrear of Rs. 2-8-6 entered in the Tauzi ledger for 1938-39 was correctly arrived at after adjusting the credit balance in favour of the respondents and the arrear not having been paid on or before 28-3-1939, the last date fixed for payment of that arrear, the Collector had jurisdiction to bring the property to sale. It was further pleaded that the respondents, not having relied on the alleged kistbandi in their appeal to the Commissioner were precluded under S. 33 of the Act from putting it forward in the present suit. Other subsidiary pleas were also raised but it is unnecessary to refer to them here as the only questions argued before us were (i) whether there was any arrear of revenue due in respect of Tauzi No. 4038 (Ijmal) before 28-3-1939 so as to entitle the Collector to bring the estate to sale on 5-6-1939, and (2) whether the respondents are precluded under S. 33 of the Act from putting forward the alleged kistband