Chhabi Rani Sarkar vs Fakir Chanb Mandal

Das Gupta, J.—The only question that was raised in this Rule against the decision of the Subordinate Judge of Nadia, confirming in appeal an order passed by the Munsif of Ranaghat u/s 174(3) of the Bengal Tenancy Act, setting aside a sale, is that the Courts below were wrong in thinking that the application was not barred by limitation. The sale was held on November 20, 1947 and the application u/s 174(3) was filed on October 1, 1955. On the face of it, the application would seem to be barred by limitation. The applicants, however, sought the assistance of Section 118 of the Indian Limitation Act and tried to establish that in consequence of the fraudulent suppression of processes by the decree holders they were kept from the knowledge of the sale and thus of their right to apply. Both the courts held that there was fraudulent suppression of processes. Holding that in view of this, it lay on the present Petitioners to show that the. applicants had knowledge of the sale at such time as would make the application barred by limitation, they found further that the decree holders had failed to show that the applicants had such knowledge.

Mr. Pal has contended before me that the learned Courts below were wrong in thinking that the mere proof of fraudulent suppression of processes by the decree holders would produce the effect that the decree holders had to prove that the applicants had clear knowledge of the right at a time which was too remote to allow them to make the application. It is worth mentioning that in (1892) L.R. 20 I.A. 1 (Privy Council) , where it was found proved that a transfer had been made in pursuance of a fraud and was concealed from the creditors and that it was a fraud which prevented the assignee from having knowledge of his right to recover the assets, the Privy Council laid down the law as regards the burden of proof of the knowledge u/s 18 of the Indian Limitation Act in these words:

Their Lordships consider that when a man has committed fraud and has got property thereby, it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud at a time which is too remote to allow him to bring the suit.

On the face of it, these observations appear to support strongly and clearly the view taken by the courts below. Mr. Pal contends, however, that, properly understood, the decision of the Privy Council does not free the applicants from the burden of proving, in the first instance, that they were kept from their knowledge of the title on which the application is based by means of some fraud. He has drawn my attention to the observation of Mookerjee, J. in the case of Biman Chandra Dutta v. Promotha Nath Ghose (1922) ILR 49 Cal. 886. There the Court held in the circumstances of that case, that the Plaintiff had been kept from the knowledge of the true facts by fraud on the part of the Defendants. In that connection, Mookerjee, J. cited the observation of the Privy Council in Rahimbhoy''s case as a valuable statement on the law and then proceeded to say:

The true position then is that where a suit is, on the face of it, barred, it is for the Plaintiff to prove, in the first instance the circumstances which would prevent the statute from having its ordinary effect. A person who, in such circumstances, desires to invoke the aid of Section 18, must establish that there has been fraud and that by means of such fraud he has been kept from the knowledge of his right to sue or of the title whereon it is founded.

It seems to me that Mookerjee, J.''s comment in Bvrrum Chandra Datta''s case does neither add anything to nor take away from the observations made by the Privy Council. On these authorities, the first ingredient to be proved in order to get the assistance of Section 18 of the Indian Limitation Act is that there had been fraudulent concealment of such a nature as would ordinarily keep the applicant from the knowledge of the right in question. If such fraudulent concealment is actually proved, it has necessarily to be held, in the absence of evidence to the contrary, that the applicant was kept from the knowledge of the right by such concealment. And then the position results that the Court would presume that such lack of knowledge continued until the contrary is shown. Where the fraud proved does not establish concealment of the nature as indicated above, there would be no scope for the application of the provisions of Section 18. Thus, where the fraud consists in an understatement of the proper price of land, there is no fraudulent concealment as would produce the consequence that a party is kept from the. knowledge of his right. It may be mentioned in this connection that Edgley, J. in Abul Jamil Samsul Hamid Chaudhury v. Ambia Khatun (1939) 43 C.W.N. 862, had also before him a case where the fraud consisted in an under valuation of the property. The court below held that where such fraud was proved, the onus lay on the decree holder to show that the opposite party was not entitled to the benefit of Section 18 of the Indian Limitation Act. Edgley, J. set aside that decision and remanded the matter for reconsideration and observed:

If these initial facts are established in favour of the judgment-debtor, the onus will then lie upon the decree holder to show that the judgment debtor actually had knowledge of the facts constituting the fraud before the alleged date of knowledge.

In the present case, as I have already mentioned, the Courts below have found that there was, in fact, fraudulent suppression of processes. The ordinary and normal effect of a fraudulent suppression of processes is that persons including the judgment debtor are kept from the knowledge that a sale was going to be held. In my opinion, the principle laid down in Rahimbhoy''s case would at once come into operation and it would be for the decree holder to show that, in spite of the fraudulent suppression of processes, the applicant did have clear knowledge of the fact of the sale at a date which was too remote to save limitation. The courts below were, therefore, right in deciding the case on the view that the decree-holders not having been able to discharge this burden, the application should be held to be not barred by limitation.

Mr. Pal''s next complaint was that the Courts below had not properly considered the evidence that had been adduced to show that long before the date of the application, other persons to whom the decree holders had leased out the land were exercising actual possession so that the judgment debtors could not but have knowledge of the fact of the sale. It is true that there is hardly any discussion of the evidence of possession that had been adduced in this case on either side and Mr. Pal''s complaint is justified. With the assistance of the learned Advocates on either side, I have, therefore, gone into the evidence myself. On examination of the evidence, I have come to the conclusion that the evidence adduced on behalf of the present Petitioners to show that after the auction-purchase the landlord leased out the lands to some persons who are in possession is wholly unconvincing and that the evidence given on behalf of the judgment debtors that they continued in possession of the land all along should be believed. The failure by the Courts below to consider the evidence of possession, in the way it should have considered it is, therefore, no reason to interfere with the decision arrived at.

The Rule is accordingly discharged with costs.