LAWS(PVC)-1936-11-154

SITAN NARAIN DEO Vs. DASRATH DEO

Decided On November 09, 1936
SITAN NARAIN DEO Appellant
V/S
DASRATH DEO Respondents

JUDGEMENT

(1.) This case has been argued very elaborately, a large number of authorities have been quoted, and the facts themselves have been gone into in great detail. So far as the facts are concerned, they can be stated very shortly for the purposes of the point which arises. The plaintiff was a mortgagee of the tenure, having got an order for possession after having purchased the property in execution of the decree. During the mortgage litigation (the dates in the circumstances are not very material), the tenure was put up for sale by the landlord and it has been held by the Courts below that the fact that the tenure fell into arrears for rent was due to the fraud and default of the defendants. The defendants, it has been held, had purchased, the tenure in the names of the appealing defendants. The transaction was therefore a farzi one and the purchase was therefore by the tenure-holders themselves. In the circumstances the learned Judge in the Court below has held that the plaintiff is entitled to the relief which he claimed in the suit and it is upon the nature of the relief claimed that the point in this appeal depends.

(2.) It is contended that the action is barred by limitation by reason of Art. 95, Lim. Act, which provides a period of three years for action based on a fraud. Mr. Mukharji on behalf of the respondents contends that in the circumstances of the case and in any event the action was not barred because the knowledge of the fraud was within three years of the case. But the case in both the Courts below proceeded on the footing that if Art. 95 applied, the action would be barred by limitation. The matter would therefore appear to depend upon the nature of the plaintiff's claim. It is true that there are in the plaint allegations which would amount to allegations of fraud; in the relief portion the expression fraud is used in connexion with the certificate sale. The plaintiff alleges that the proceedings arising out of the certificate sale were absolutely fraudulent and that defendants 3 and 4 had thereby acquired no right, nor did they or could they affect the plaintiff's title. It is no good pretending that the plaint is a model of pleading and I have no doubt that a good deal of it would have been struck out by any Court as embarrassing. But the question is, what was the substance of the plaintiff's claim, what facts did he prove, and did those facts entitle him to succeed in the action? There is no dispute in this case that Section 208, Chota Nagpur Tenancy Act, applies. This section refers to the Bengal Rent Recovery (under-tenures) Act of 1865, the main provision of Section 16 whereof is that "the purchaser of an under- tenure sold under this Act shall acquire it free from all incumbrances". There is then a proviso, and lastly, a clause to the effect: Nothing in this section shall be held to apply to the purchase of a tenure by the previous holder thereof, through whose default the tenure was brought to sale.

(3.) Having regard to the findings of fact of the Courts below, there is not the slightest doubt that the clause last referred to applies. It is difficult to understand quite what the argument of Mr. De is. It is based on the contention (naturally so) that the plaintiff in this action is in some way seeking to set aside a sale or to modify the effect of a sale within the meaning of Section 214, Chota Nagpur Tenancy Act. The contention is that the plaintiff in this action is bound in some way, either directly or indirectly, to set aside the sale before he could have the relief which he sought. I have not the slightest doubt that if that were so, then the action would not be maintainable and would be barred under Section 214, Chota Nagpur Tenancy Act. But the argument seems to forget the proviso (which I have quoted) to Section 16, Bengal Rent Recovery Act of 1865. Neither one of the provisions of Section 16 is of greater value than the other. On a plain construction each subsection must be given its-full value; and, taking the matter in that way, it is shown that there are two classes of cases: one in which a property is sold free from all encumbrances, and the other in which the encumbrances remain. The facts of this case disclose that it is the latter. Now, Mr. De's argument, which as I have already stated, is somewhat difficult to understand, is to fete effect that the plaintiff had to establish those facts in order to bring himself within what I call the proviso to Section 16, Act 8 of 1865.