JOGESH CHANDRA GHOSE Vs. PROSANNA KUMAR TALUKDAR

JUDGEMENT

(1.) In the suit out of which this appeal arises, the plaintiff, who is the respondent in the appeal, prayed for a decree, declaring that the plaintiff and the co-sharer defendants had nim- howla right in the disputed lands specified in the Schedule Kha, and that they had a right to realize rent from tenants under them. The conclusion of the Court as regards the contention is that he cannot hold that the lands in suit appertain to the nim-howla of the plaintiff and defendants Nos. 2 to 7 and the settlement records show that they do not appertain to the nim-howla. The Court then says that the presumptive value of these records is considerable, and, therefore, the Court decides this point in favour of the then appellants to this extent, that the lands in suit do not appertain to the nim-howla of the plaintiff and defendants Nos. 2 to 7. This is the subject-matter of the cross-objection before us. I think the cross-objection fails on the ground that the conclusion is one of fact, and it has not been established before us that in coming to that conclusion the learned Judge was under any misapprehension or error of law. The cross-objection must, therefore, be dismissed.

(2.) The second prayer was that the Court should set aside the rent-decree in Suit No. 1473 of 1909 obtained by defendant No. 1 and the auction-sale held on the 4 November, 1911, in execution of the decree in Suit No. 567 of 1911 declaring that the same were invalid and inoperative.

(3.) A question that has arisen in this appeal is as to whether or not the lower appellate Court has come to a sufficiently clear finding as regards the alleged fraud so that the proceedings referred to can be set aside on that ground. The contention of the appellants has been that the facts found by the lower appellate Court do not constitute fraud, and if that point is established then the case of the appellants is that no suit will lie to set aside the decree. It has also been argued that the fraud which has been found by the lower appellate Court is not that which was made the ground of attack in the plaint, and that there was no fraud or suppression of service of notice.