CHHABI RANI SARKAR Vs. FAKIR CHANB MANDAL

JUDGEMENT

(1.) The only question that was raised in this Rule against the decision of the Subordinate Judge of Nadia, confirming in appeal an order passed by the Munsif of Ranaghat under Section 174(3) of the Bengal Tenancy Act, setting aside a sale, is that the Courts below were wrong in thinking that the application was not barred by limitation. The sale was held on November 20, 1947 and the application under Section 174(3) was filed on October 1, 1955. On the face of it, the application would seem to be barred by limitation. The applicants, however, sought the assistance of Section 118 of the Indian Limitation Act and tried to establish that in consequence of the fraudulent suppression of processes by the decree holders they were kept from the knowledge of the sale and thus of their right to apply. Both the courts held that there was fraudulent suppression of processes. Holding that in view of this, it lay on the present Petitioners to show that the. applicants had knowledge of the sale at such time as would make the application barred by limitation, they found further that the decree holders had failed to show that the applicants had such knowledge.

(2.) Mr. Pal has contended before me that the learned Courts below were wrong in thinking that the mere proof of fraudulent suppression of processes by the decree holders would produce the effect that the decree holders had to prove that the applicants had clear knowledge of the right at a time which was too remote to allow them to make the application. It is worth mentioning that in Rahimbhoy Hubibbhoy v. Turner, 1892 20 IndApp 1, where it was found proved that a transfer had been made in pursuance of a fraud and was concealed from the creditors and that it was a fraud which prevented the assignee from having knowledge of his right to recover the assets, the Privy Council laid down the law as regards the burden of proof of the knowledge under Section 18 of the Indian Limitation Act in these words:

(3.) On the face of it, these observations appear to support strongly and clearly the view taken by the courts below. Mr. Pal contends, however, that, properly understood, the decision of the Privy Council does not free the applicants from the burden of proving, in the first instance, that they were kept from their knowledge of the title on which the application is based by means of some fraud. He has drawn my attention to the observation of Mookerjee, J. in the case of Biman Chandra Dutta v. Promotha Nath Ghose,1922 49 ILR(Cal) 886. There the Court held in the circumstances of that case, that the Plaintiff had been kept from the knowledge of the true facts by fraud on the part of the Defendants. In that connection, Mookerjee, J. cited the observation of the Privy Council in Rahimbhoy's case as a valuable statement on the law and then proceeded to say: