Banarsi Das vs Mt. Bhawani Kuer and Others

Manohar Lall, J.—This is an appeal by one Banarsi Das who was defendant 1 in the Court below and who is aggrieved by the concurrent decisions of the learned Subordinate Judge and of the learned District Judge of Gaja, by which they have decreed the suit of the plaintiff which was instituted for a declaration that notwithstanding a certain certificate sale, his title in the property was not affected in the following circumstances.

The plaintiff obtained a decree on the basis of a handnote against the heirs of Ram Prasad for about Rs. 20,000 and attached in execution 7 annas interest of village Sugaon which is the property in dispute. He himself purchased the property on 6th September 1933, in the execution sale. In the meantime the original owners of this village, namely, the heirs of Ram Prasad, who were his judgment-debtors, made deliberate default in payment of cess and a certificate was issued to realise the dues from the certificate debtors on 9th January 1933; and in the sale which was held on 8th July of the same year one Tauqir Ahmad (defendant 15) purchased the property for a sum of Rs. 125. On 29th January 1934, the plaintiff applied to the Certificate Department that he should be added as a party as the sale was fraudulent and that he did not know of this before; but that application was rejected on 14th February of the same year and the certificate sale was confirmed on 20th February 1934. In the meantime before the sale was confirmed Tauqir Ahmad sold the property to defendant 1 for Rs. 250. He is the appellant before this Court. The plaintiff then instituted the suit giving rise to this appeal on 13th February 1936.

The principal question of fact which arose for deoision in the Courts below was whether the sale was a good sale and whether Tauqir Ahmad and the appellant were benamidars for the original certificate-debtors. The Courts below have concurrently held that defendant 1 was a benamidar for the certificate-debtors, namely, the heirs of Ram Prasad who were the judgment-debtors of the plaintiff. The learned District Judge gives his finding in these words: "There can be no doubt that the learned Subordinate Judge was correct in coming to the conclusion that defendant 1 in taking the conveyance of the property in suit from defendant 15, Tauqir Aamad, was acting not on his behalf but as a mere agent on behalf of defendants 2 to 13." The learned District Judge felt some difficulty at one stage of the argument as to whether defendant 15 can be held to be a benamidar for defendants 2 to 13 but having further considered the matter and especially the conduct of Tauqir Ahmad in conveying so valuable a property as this to the defendant for a sum of Rs. 250, he felt that it was incapable of explanation except on the assumption that there was a previous arrangement between defendants 2 to 13 and Tauqir Ahmad. He, therefore, agreed with the learned Subordinate Judge that the whole sale was brought about by the deliberate default of defendants 2 to 13 and that they adopted this contrivance to defeat the rights of the plaintiff in the execution of his decree and that defendant 15 was a party to this fraud.

Mr. Sarju Prasad who appears for the appellant found great difficulty in attacking the decision of the learned Judge that defendant 1 was a farzidar of the other defendants. This is eminently a question of fact and this finding cannot be interfered with by us in second appeal. Similarly, defendant 15 has been found to be a party to the contrivance by which this sale was brought about. But the learned advocate argued that the finding of fraud in this case was not based upon any evidence but upon mere surmise and conjectures. It is true that the Courts below have proceeded upon their view as to what they thought had happened in this case; but I am unable to see that they have relied upon evidence which was not admissible in law. They have examined the circumstances and especially the conduct of Tauqir Ahmad in conveying the property which fetches an annual income of Rs. 1200 or more for a small sum of Rs. 250, and it is impossible to come to any other conclusion than that there was a prior arrangement between Tauqir Ahmad and defendants 2 to 13 that he should become the auction purchaser and convey the property to defendants 2 to 13 immediately before its confirmation.

It was then argued that the suit was barred by limitation because it had been brought beyond one year of the date of the confirmation of the salet It is sufficient to say that it is now settled by two decisions of the Judicial Committee in Annada Pershad v. Prasannamoyi Dasi 2007 34 Cal. 711 and Deonandan Prasad v. Janki Singh AIR 1916 PC 227 that Article 12 has no application to a case like the present where the plaintiff does not want the sale to be set aside but merely asks for a declaration that, notwithstanding the sale, the interest in the property which passed to him on 6th September 1933 is not affected by the sale and the confirmation thereof in 1933 and 1934. Reliance was placed on behalf of the appellant on the decision in Radha Krishna v. Bisheshar Sahay AIR 1922 P.C. 336. But in that case their Lordships expressly refused to consider the question of concealed fraud which was sought to be raised in the argument because this contention was never put forward or discussed in the Courts in India and the foundation for which was deficient. Although there was some allegation but there was no proof of the time when the fraud, supposing that there were fraud, became known to the plaintiffs. What really happened in that case was that it was alleged that the decree-holder in contumacious disregard of the order of the Court which had not given him permission to bid in auction sale had become the auction purchaser, but their Lordships thought that they were satisfied that the auction purchaser was not the benamidar of the decree-holder. This finding, as their Lordships observed at p. 738, was sufficient to dispose of the appeal but as the question of limitation was raised in the Courts below their Lordships gave the opinion that the decision of the High Court was correct, Referring to the then Section 294, Civil P.C., regulating sales in execution by the Court their Lordships pointed out that upon a true construction of this section the purchase by a decree-holder who has not obtained permission is not void nor a nullity, but is only to be avoided on the application for the judgment-debtor or some other person interested. Assuming, therefore, that the decree-holder had been contumacious the question for decision would be whether the property bad been really realised to the best advantage. If it had not then the Court would set aside the sale under the provisions which are now to be found in Order 21, Rule 90, Civil P.C. But if it had then it did not matter that the decree-holder bought without permission or that he had applied and had been refused. Then their Lordships observed at p. 740: "If, then, the sale is voidable only and not void, Article 12 in the Limitation Act of 1908 applies, and the suit must be brought within one year. Therefore, it was too late." This case in my opinion has no application to the facts of the present case.

Lastly it was argued that the suit was barred by Sections 25 and 45, Public Demands Recovery Act, because, as I have already said, the plaintiff had applied on 29th January 1934, to the Certificate Department to be added as a party, but the application was rejected. It was, therefore, argued that the plaintiff should have either sought for his remedy before the Revenue Courts or should have brought the suit only within one year for the relief provided by Section 45. But Section 46, Public Demands Recovery Act, expressly exempts a suit like the present, if it is based upon a fraud, from the operation of these sections. I agree with the "view of the learned Subordinate Judge that, as the present suit was for a declaration that the certificate sale by which defendant 15 became an auction purchaser was a fraudulent one and void on the ground of the purchase being a collusive one and on behalf of the real certificate-debtors, the suit comes under the proviso to Section 45 and, therefore, is not barred by any rule in section 46.

For these reasons the appeal, in my opinion, is really concluded by findings of fact. It may be observed that the questions of law which have been sought to be raised here were not raised before the learned District Judge. The appeal fails and must be dismissed with costs.

Harries, C.J.

I agree.