TARA CHAND SAMANTA Vs. CHANDRA SEKHAR MOOKERJEE

JUDGEMENT

(1.) This appeal arises out of a suit brought in the Court of the Subordinate Judge of Burdwan for setting aside the sale of an entire mehal for arrears of Government Revenue.

(2.) The plaintiffs and pro forma defendants were aymadars with varying shares in the mehal and the allegation was that the sale was brought about by the fraud of defendant No. 2 himself one of the co-sharers and that he himself purchased the property benami in the name of defendant No. 1.

(3.) It is not necessary for the purposes of this appeal to go into the evidence on the merits inasmuch as the learned pleader for the plaintiffs appellants admits that he cannot contend that he has succeeded in establishing fraud on the evidence as it now stands, but it is urged that there has not been a fair trial in the Court below and that the case should be remanded for a further hearing on three grounds: 1. That the defendant No. 2 in spite of repeated attempts to procure his attendance for examination before the Court did not appear and that process to compel his attendance was refused by the Court below. 2. That on the day of hearing the lower Court refused a short adjournment to procure the attendance of two mukhtear witnesses whose names were on the attendance list filed by the plaintiffs but who had gone to the Collectorate on some professional business on which they were engaged. 3. That in consequence of this summary closure of their case the plaintiffs pleaders were unable to cress-examine the defendant's witnesses. A perusal of the order sheet pp. 39-41 of the Paper Book will at once disclose that the appellants first contention ought to prevail.