BUNDI SINGH Vs. JAIPRAKASH SINGH

JUDGEMENT

(1.) THIS second appeal arises out of a suit to set aside an ex parte decree passed in a rent suit and to recover possession of the occupancy holding which was sold in execution of that decree. The sale took place in 1938, and the suit was instituted in 1941. The occupancy holding comprised an area of 2.21 acres and was Bold for the wholly inadequate price of us. 21.18-0. A portion of the holding was in the possession of a mortgagee, and the plaintiff in the suit asserted that this mortgagee, or a relation of his, and the co-sharer landlord who obtained the decree had been parties to a conspiracy. The suit baa been decreed by both the Courts below and the defendant has appealed. The principles on which suits of this kind are to be dealt with have been laid down by Kulwant Sahai and Allan-son JJ. in Ramchandra Prasad v. Firm Parbhu Lal Ramratan, 6 Pat. 458 : (A. I. R. (14) 1927 Pat. 183). Mr. K. K. Sinha, for the appellants, complains that the Courts below have not kept these principles in mind and have misplaced the burden of proof. So far as the judgment of the trial Court is concerned, this criticism is well-grounded. The learned Munsif began by detailing the various circumstances from which the plaintiff asked him to infer that a fraud had been committed and, having come to the conclusion that such an inference could and ought to be drawn, observed : "Now fraud having been established, the onus of proving the service of summons and the processes in the execution proceeding lies heavily on the defendant.' I am not, however, satisfied that the learned Subordinate Judge fell into a similar error. One of the circumstances relied on as going to establish fraud was that the cosharer landlord, who was the plaintiff in the rent suit, had claimed a larger sum than was actually due to him. The learned Subordinate Judge after expressing the opinion that this cosharer landlord, who was a recent purchaser, might well have been under a bona fide belief that the interest of his vendor in the estate was what his vendor had purported to convey to him, and not, as in the event it turned out, a lesser interest, said :

(2.) WHEN this was pointed out to learned advocate for the appellant, Mr. K.K. Sinba said that the learned Subordinate Judge had nevertheless placed the onus of proof on the defendants and had not even considered the evidence adduced by the plaintiff. It has, however, to be remembered that the record in the rent suit had been destroyed. So far, therefore, as the summons in the rent suit was concerned, there was, on the one side, the denial of the plaintiff that summons had been served on him, and, on the other, the evidence of servant of the defendant who said that ho had been present and acted as identifier when it was served. In this situation, it was obvious that the lower appellate Court had to examine the test of the evidence and the various circumstances of the case in order to ascertain whether the evidence of the plaintiff or the evidence of the servant of the defendant was corroborated. It appears that, subsequent to the taking out of a writ for delivery of possession, another rent suit was instituted against the plaintiff rent in it being claimed for a period subsequent to the date on which the writ for delivery of possession purports to have been served. This suit was withdrawn, tbe plaintiff in it explaining that it bad been instituted through a mistake on the part of his karpardaz. Tbe learned Subordinate Judge was unable to accept this explanation and was of opinion that the occupancy raiyat had continued in possession of tbe holding and had been unaware of the rent suit and the execution proceedings until they were brought to his notice by one Hashimuddin. It is true that the learned Subordinate Judge discussed at some considerable length the evidence adduced by the defendant to show that the processes in the execution proceeding had been duly served. It was, bow-ever, incumbent on the lower appellate Court to do so. Mr. K.K. Sinha, for the appellants, made a good deal of the circumstance that the learned Subordinate Judge would seem to have fallen into an error of record in supposing that notice under Section 158B (2) was not issued and also in supposing that the sale was a sale held without jurisdiction as the procedure laid down in Section 162A, Bihar Tenancy Act was not followed. It is now settled that an omission to comply with that procedure is merely an irregularity which renders the sale voidable but not void. These matters, however, are not very relevant, The lower appellate Court has found it as a fact that summons in the rent suit was not served and that the plaintiff in the present suit was unaware of the decree or the execution proceedings until immediately before this suit was instituted. From this alone it would, I think, have been permissible to infer fraud. There is however, another circumsfance on which reliance can be and was placed in the Courts below. Although the cosharer landlord in the rent suit may, as the learned Subordinate Judge assumed, have believed that he was the owner of a 4 annas interest, and not, as it turned out eventually, of a 2 annas 6 dams interest, in the estate, nevertheless, there is reason to suppose that the rent suit was instituted in order that the plaintiff in it might have some evidence with which to go to the Land Registration Deputy Collector and ask that his name be entered in register D as owing a 4 annas interest. Immediately after the rent suit was decreed an application to that effect was made and allowed and the other cosharer landlords, or some of them, had to institute a regular title suit. I can see no reason to interfere in second appeal. This appeal will accordingly be dismissed with costs.