BEPIN CHANDRA DAS Vs. MENAJADDI

JUDGEMENT

(1.) This appeal arises out of a suit which was instituted by the plaintiff for setting aside a decree and a sale held in execution thereof on the ground of fraud. The suit has been decreed by both the Courts below. The defendants 1 to 3 have preferred this appeal. The plaintiff's case was that he held a jama under the 4 annas share in a certain taluk for which he was to deliver 11 katis of paddy as rent per year, that defendants 1 to 3, who were the plaintiff's landlords, instituted a suit for rent being suit No. 1883 of 1918 alleging that the plaintiff's jama, together with two other jamas in which the plaintiff was not interested constituted one jama of which the plaintiff and defendants 4 to 9 were tenants, and in collusion with defendants 4 to 9 obtained an exparte decree, fraudulently suppressing the summons that had been issued on the plaintiff and not having the plaintiff properly represented in the said suit and thus having fraudulently obtained decree by adducing perjured evidence.

(2.) The learned Munsif held that there was no evidence to show that the summons in the suit was served upon the plaintiff who was a minor at the time or on his natural guardian Amin- addi who was his maternal uncle and with whom he was living at the time. He, however, found that the non-service could not be attributed to the interference of defendants 1 to 3 who were the plaintiffs in the rent suit and, therefore the plaintiff was not entitled to any relief on that ground. He, held, however, that the suit was a false one and therefore, the decree was liable to be set aside. The falsity of the suit, so far as the learned Munsiff appears to have found, consisted in this : that the suit was instituted in respect of the rent for the 4 annas share of the three jamas without disclosing the fact that it was only in respect of one of these jamas that the plaintiff was interested and that for this he had to deliver rent in the shape of paddy at the rate of 11 katis a year, There was an appeal preferred from this decision of the learned Munsif by defendant 1 and this appeal has been dealt with by the Subordinate Judge.

(3.) The findings of fact which the learned Subordinate Judge has recorded are somewhat difficult to comprehend and indeed some of the findings which he has so recorded have very little to do with the questions which are relevant in a suit for setting aside a decree on the ground of fraud. He has held in the first instance that the defendants 1 to 3 in the rent suit No. 1883 of 1918, in which they were the plaintiffs, treated the three jamas as one jama and there is no evidence to show that rent had been realized from the present plaintiff of the three jamas treated as one, and further, that so far back as 1308, the said defendants 1 to 3 or some of them had accepted a kabuliyat from the plaintiff's father in respect of the separate jama which the plaintiff alleged, and that the record-of-rights also was in plaintiff's favour. He thus found that the claim in the rent suit was a false one.