1. The subject-matter of the litigation, which has resultedin this appeal, is an one-third share in a putni taluk created on the 19th July1888 by Nawab Assanulla as zemindar in favour of one Hara Lochan Das. On the10th August 1889, the lessee transferred to the first Defendant, Sonamala, theone-third share now in dispute, which was subsequently conveyed by Sonamala onthe 2nd January 1897 to the second Defendant, Naba Kumar Singh. On the 14thApril 1893, Hara Lochan transferred the remaining two-thirds share to Probhat ChandraNag, now represented by his infant son, the fourth Defendant Prokash ChandraNag. It does not appear, however, that either of the transferees got his nameregistered in the books of the landlord under the provisions of sec. 5 of thePutni Regulation of 1819. Default was made in the payment of rent to thezemindar, and the result was that the putni was sold on the 14th May 1894,under sec. 8, cl (2) of the Putni Regulation. The fifth Defendant, BasantaKumar Sen, was declared the purchaser at this sale for a sum of Rs. 51. On the9th May 1895, Probhat Chandra Nag, the transferee of a two thirds share,commenced an action for reversal of the sale under sec. 14, against thepurchaser Basanta Kumar and the zemindar Nawab Assanulla. The originalputnidar, Hara Lochan, as also the transferee of the one-third share, thepresent first Defendant Sonamala, were joined as parties Defendant. ThePlaintiff, Probhat Chandra, asked for reversal of the entire sale, as he wasbound to do upon the principle explained in the cases of Unnoda v. Erskine 12B. L. R. 370 (1873), Suresh v. Akkowri I. L. R. 20 Cal. 746 (1893) and RamCharan v. Drobomoyee 17 W. R. 122 (1872), that the sale of a putni cannot bedeclared good or bad in part. The Plaintiff further stated that he had failedto induce his co-sharer Sonamala to join as a co-Plaintiff, but had noobjection, if upon her application, she was transferred from the category ofDefendant to that of Plaintiff. The suit was resisted by the purchaser BasantaKumar as well as by the zemindar Nawab Assanulla; they denied that the sale wasin any way irregular, and also suggested that the Court had no jurisdiction toentertain the suits, as the value of the disputed property exceeded the limitsof its pecuniary jurisdiction. During the pendency of this litigation, thePlaintiff came to terms with the purchaser, and the result was that on the 23rdNovember 1895 the purchaser executed a conveyance in favour of Probhat Chandrain respect of a two-thirds share of the putni for a sum of Rs. 300. This wasintimated to the Court, and the Plaintiff declined to proceed with the suit,which was thereupon dismissed with costs in favour of the zemindar. On the 11thAugust 1896, the auction-purchaser Basanta Kumar transferred the one-thirdshare, which still remained with him, in favour of the Plaintiffs in thepresent litigation. The Plaintiffs were unable to obtain possession, andcommenced this action on the 26th February 1906, for declaration of title bypurchase and for recovery of possession. The principal Defendants resisted theclaim on the ground that the sale under the Putni Regulation was void ascontrary to law, and that, consequently, the Plaintiffs had acquired no titleunder their purchase from the purchasers at that sale. In answer to thiscontention, it was argued on behalf of the Plaintiffs that so long as the putnisale stood unreversed, their title could not be impeached collaterally. TheCourts below have overruled this contention, and have treated the suit as if itwere one brought by the putnidars for reversal of the sale. They have foundthat the Plaintiffs had failed to prove that the notices required by theRegulation had been duly served and have dismissed the suit on the ground thatthey had not acquired a valid title by their purchase. The Plaintiffs haveappealed to this Court, and on their behalf the decision of the SubordinateJudge has been assailed on the ground that as the putni sale has not been setaside in the manner provided by the Regulation, and as any suit now commencedfor the purpose would be prima facie barred by limitation, the title of thePlaintiffs cannot be successfully impeached, and there is, in substance, novalid answer to their claim. On behalf of the Respondents, it has been arguedthat the validity of the putni sale may be collaterally impeached in thepresent suit as constituted, and that the Plaintiffs are not entitled tosucceed till they establish that they have an unimpeachable title. The questionreaised is one of considerable importance and apparently one of firstimpression, but we feel no doubt as to the manner in which it ought to beanswered in view of well-recognised principles. Sec. 14 of Reg. VIII of 1819provides that it shall be competent to any party, desirous of contesting theright of the zemindar to make the sale, whether on the ground of there havingbeen no balance due or any other ground, to sue the zemindar for the reversalof the sale, and upon establishing a sufficient plea to obtain a decree withfull costs and damages ; the purchaser shall be made a party in such a suit,and upon decree passing for reversal of the sale, the Court shall be careful toindemnify him against all loss at the charge of the zemindar or person at whosesuit the sale may have been made. Art. 12 of the second schedule of theLimitation Act provides that a suit to set aside a sale of a putni taluk, soldfor current arrears of rent, must be instituted within one year from the datewhen the sale would become final and conclusive had no such suit been brought.These provisions plainly indicate that the sale is treated not as void but asvoidable. A sale under Reg. VIII of 1819 does not require to be confirmed. Sucha sale becomes final and conclusive when the whole of the purchase-money hasbeen paid under sec. 9 of the Regulation, and the period of one year runs fromthe date of such payment, Bhuban v. Girish 13 C. L. J. 339 (1894). It has notbeen suggested before us that the arrears, for the recovery of which the salewas held at the instance of the zemindar, were not due, but even if such anallegation were made, it would be worthy of note that sec. 14 of the PutniRegulation contemplates a suit for reversal of the sale on the ground that nobalance was due ; consequently, in such a contingency, the question might arisewhether the principle of the decisions in Byjnath v. Lala Seetul Pershad 10 W.R 66 (1868), Harkhoo v. Banshidhar I. L. R 25 Cal. 876 (1898) and Bal Kishen v.Simpson I. L. R 25 Cal. 833 (1898), namely, that a sale for arrears of revenue whenno arrears are due is not a legal sale because the Collector acts entirelywithout jurisdiction, would be applicable to putni sales held when no balancewas due to the zemindar. In any event when a putni sale is impeached on theground that the notices required by the Regulation have not been duly served,the sale must be treated as avoidable sale capable of reversal in a suitproperly constituted and commenced under sec. 14 of the Putni Regulation. Thisview receives considerable support from the principle which underlies thedecisions of the Judicial Committee in Tasaddak v. Ahamed I. L. R. 21 Cal. 66(1893), Gobinda Lall v. Ramjanam I. L. R. 21 Cal. 70 (1893) and Malkarjun v.Narhari I. L. R. 25 BOM. 337 (1900). These decisions recognise the important doctrinesthat the omission to serve statutory notices, though it may affect the validityof a sale and render it liable to be reversed in an appropriate proceeding,does not render the sale a nullity which may be ignored by the person whoseproperty has been sold. This principle may not be of universal application, asindicated by the decision of a Full Bench of this Court in Puma ChandraChatterjee v. Dinabandhu Mukerjee I. L. R 34 Cal. 811 (1907), where it wasruled that the omission of the Collector to serve a notice under sec. 10 of thePublic Demands Recovery Act of 1895 destroys his jurisdiction to hold the sale.In the case before us, however, it is impossible for us to hold that the salewas a nullity, because the notices required by the Regulation were not provedto have been duly served. But reliance was placed by the learned Vakil for theRespondents upon the cases of Maharaja of Burdwan v. Tarasundari I. L. R. 9Cal. 619 ; L. R. 10 I. A. 19 (1882), Maharaja of Burdwan v. Krishto Kamini I.L. R. 9 Cal. 931 (1883), Maharani of Burdwan v. Krishna Kamini I. L. R. 14 Cal365(1886), Mahomed v. Abdul I. L. R. 12 Cal, 67 (1885), Surnomoyee v. GirishChandra I. L. R. 18 Cal. 362, 373 (1891), Hurrodyal v. Mahomed Gazi I. L. R. 19Cal. 699 (1891), Raj Narain v. Ananta Lal I. L. R. 19 Cal. 703 (1892), BejoyChand v. Atulya I. L. R. 32 Cal. 953 : s. c. 3 C. L. J. 46 (1905), Bhugwan v.Sudderally I. L. R. 4 Cal. 41 (1878), Bykunta Naih v. Mahtap Chand 17 W R. 447(1872), Hara v. Juggarnath 11 W. R. 87 (1869), Raghub v. Btojo Nath 14 W. R.489 (1870) and Bejoy Chand v. Amirta Lall I. L. R. 27 Cal. 308 (1899) to showthat compliance with the provisions of the Regulation as to the issue andservice of the requisite notices is essential for the validity of the sale. Thesecases are clearly distinguishable ; they merely show that the validity of thesale is affected by the failure of the zemindar to comply with the provisionsof the Regulation, and the sale is liable to be annulled in a suit institutedunder sec. 14, but they do not show that the sale may be treated as a nullity.

2. The learned Vakil for the Respondents, however,strenuously contended that upon general principles the validity of a statutorysale may be attacked collaterally in a suit for ejectment brought by thepurchaser or his representative in interest, and in support of this view, herelied upon the analogy of the doctrine recognised in some judicial decisionsthat an objection to the validity of an execution sale may be raised by way ofdefence in a regular suit although the objection is one within the scope ofsec. 244 of the Civil Procedure Code of 1882 [Bhiram Ali v. Gopi Kanth I. L. R.24 Cal. 355 (1897), Chandra Mani v. Halejennessa 9 C. L. J. 464 (1908), DurgaCharan v. Karamat Khan 7 C. W. N. 607 (1903), Thathu v. Kondu I. L. R. 32 Mad.242 (1908), Venkataramna v. Menatchisundara 19 Mad. L. J. 1 (1904)]. In answerto this argument, it may be pointed out that the doctrine upon which relianceis placed has not uniformly been accepted in this Court [Dwarka Nath Pal v.Tarini Sankar Roy I. L. R. 34 Cal. 199 (1907), Durga Charan v. Kali Prasanna I.L. R. 26 Cal. 727 (1899) and Murullah v. Barullah 9 C. W. N. 972 (1905)]; thematter is indeed, by no means, free from difficulty, and when it arises directlyfor consideration, it may require careful examination. In any event, theapplication of the doctrine would prima facie be limited by the conditionsimposed by sec. 47 of the Civil Procedure Code of 1908, which provides insub-sec. (2) that the Court may, subject to any objection as to limitation orjurisdiction, treat a proceeding under that section as a suit or a suit as aproceeding and may, if necessary, order payment of any additional Court-fees.The restrictions indicated show conclusively that there are weighty reasons whythe validity of the sale should not be allowed to be impeached collaterally inthe present suit. In the first place, in a suit for reversal of the sale, thezemindar is a necessary party, as is manifest from the provisions of sec. 14 ofthe Regulation. In the second place as the validity of a putni sale must bechallenged in its entirety, the jurisdiction of the Court in which the suit forreversal is instituted, must be determined with reference to the value of theentire putni, whereas in a suit for possession of a share of the putni taluk bythe representative of the purchaser under the Regulation, it is the value ofthe share in controversy which determines the jurisdiction of the Court. In thethird place, if a suit for reversal of the sale were now to be commenced, itwould obviously be successfully met by the plea of limitation, because even ifthe Defendants as Plaintiffs in such a suit sought to avail themselves of theprovisions of sec. 14 of the Limitation Act, for exclusion of the time duringwhich they have defended the present suit [Jagatindra v. Dindyal 1 W. R. 310(1864) and Mangu Lal v. Kandhai I. L. R. 8 All. 475 at p. 485 (1886)], it couldbe of no avail as against the zemindar who is not a party to this litigation,while if they relied upon the provisions of sec. 18, for exclusion of the timeduring which they had been kept by the alleged fraud of the purchaser fromknowledge of their right to ask for reversal of the sale, it could be of noavail as against the zemindar, as the latter is not a party to this suit, andas they themselves must have been apprised of the fraud, if any, before the29th May 1906, when they filed their written statement. But even if thesedifficulties could be overcome, it would have to be shown that the dismissal ofthe previous suit against the zemindar was no bar to a second suit of similarscope and description. Apart however, from these considerations, we are unableto accede to the contention of the Respondents, that, as a matter of principle,the validity of such sales ought to be allowed to be challenged collaterally.The three decisions of the Judicial Committee to which we have already referred[Tasaddak v. Ahamed I. L. R. 21 Cal. 66(1893), Gobinda Lall v. Ramjanam I. L.R. 21 Cal. 70 (1893) and Malkarjun v. Narhari I. L. R. 25 Bom. 337 (1900)],undoubtedly militate against such a theory. It must further be remembered thatthe tendency of Courts is against collateral impeachment, except in the case ofprivate transaction before they have passed from the domain of contract intothat of judgment [Clough v. L. & N.W. Ry. Co. L. R. 7 Exch. 26(1871),Eastern Mortgage v. Rebati 3 C. L. J. 260 (1906), Baroda v. Gajendra 9 C. L. J.383 at p. 398 (1909)]. For illustrations, reference may be made to SurnamoyeeDassi v. Ashutosh Goswami I. L. R. 27 Cal. 714 (1900) and Gora Chand v. Makhan6 C. L. J. 404 (1907), although where a decree obtained by fraud is sought tobe used against a person he is allowed, under statutory provisions (sec. 44 of theIndian Evidence Act) to show the true nature of the decree, notwithstandingthat no steps have been taken by him for reversal of the decree [Nistarini v.Nando Lal I. L. R. 26 Cal. 891 (1899) and Rajib Panda v. Lakhan I. L. R. 27Cal. 11 (1899)]. In the absence of such a statutory provisions and in the faceof an express statutory mode for reversal of the sale, we are not prepared tohold that it ought to be allowed to be impeached collaterally. The general ruleis that a judgment rendered by a Court having jurisdiction over the parties andthe subject-matter, unless reversed or annulled in some appropriate proceeding,is not open to contradiction or impeachment in respect to its validity, verityor binding effect, by parties or privies in any collateral action or proceeding[While v. Rose 3 Q. B. 493 (1842), Rogers v. Wood 2B. & Ad. 245(1831),Briscoe v. Stephens 2 Bing. 213 ; 27 R. R. 597 (1824)]. The same doctrine hasbeen maintained in the American Courts in numerous cases, amongst which may be mentionedthree decided by the Supreme Court of the United States [Thompson v. Whitman 18Wallace 457, Dunham v. Jones 159 U.S. 584 and Gunn v. Plann 94 U.S. 664], asalso the case of International Wood Company v. National Assurance Company 105Am. St. Rep. 288 (1904). No doubt, the position may be different when ajudgment shows on its face that it is void for want of jurisdiction either ofthe person or the subject-matter; such a judgment may possibly be treated as anullity and collaterally impeached by any person interested, wherever it isbrought in question. But that doctrine has no application to a case like thepresent where the validity of the sale is plainly intended by the Legislatureto be determined in a suit, properly constituted and brought in a Court ofcompetent jurisdiction, within the time allowed by law, and against partiessought to be affected by the result. We are, therefore, of opinion, that theconclusion is inevitable that the Defendants ought not to have been allowed tochallenge the validity of the sale in the present suit. We do not, however,decide whether the Defendants may not subject to the law of limitation, havesome remedy on the ground of fraud if fraud is established against thepurchaser at the putni sale and other persons who may have assisted him in theattainment of his fraudulent object. The result consequently is that thisappeal must be allowed, the decrees of the Courts below discharged, and thePlaintiffs awarded a decree for the one-third share of the putni taluk in dispute.In the circumstances disclosed, however, and in view of the great delay in theinstitution of the suit, we direct each party to bear his own costs throughoutthe litigation, for in deciding the question of costs, we are entitled toconsider not merely the conduct of the parties in the actual litigation, butalso the matters which led up to the litigation [Harnett v. Vise (49)]

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Ramsona Chowdhuri and Ors. vs. Naba Kumar Singha Chowdhuriand Ors. (27.02.1911 - CALHC)