Maulvi Ahmadur Rahman vs Shri Arun Sarkar Roy

B.L. Hansaria, J

Maulvi Ahmadur Rahman is the Appellant in both the cases. The suit out of which S.A. 69/76 arises was filed by him principally to set aside an auction sale by which his Patani rights over the suit land was sold. That sale had taken place in Case No. 59/54-53. The setting aside of the auction sale was prayed, on the ground of fraud. The suit was decreed by the learned trial Court but it has been dismissed by the learned first appellate Court as being barred by limitation. In too other suit, which is reliable to SA 123/76, Maulvi Ahmadur Rahman was the Defendant. That suit was for eviction of the Defendant from the suit land which was the subject matter of Sale Case No. 59/54-55. Among other pleas taken as defence, it was urged that as the sale of the property itself was, void on the ground of fraud, the Plaintiff bad acquired no title, and as such could not have instituted the suit for eviction of the Defendant.

As a common question relating to the validity of the auction sale has arisen for determination, the two appeals were heard conjointly and a common order is passed in both the cases. The sale was challenged, as already indicated, on the ground of fraud by alleging that notices as required by Section 8 of the Bangal Patani Talug Regulation, 1819 were not quly served. A look at that provision shows that notice of bale has to be published at three places vis. (i) some conspicuous part of the Collector''s Cutchery; (ii) Sadar Cutchery of the Zamindar himself and (iii) at the Cutchery or at the principal town or village and upon the land of the defaulter. The further requirement is that .notice should be served on the defaulter. The concurrent finding of fact is that though there was proper service at the Collectors Cutchery, there was no proper publication of the notice is the Zamindar''s Cutchery. The learned Assistant District Judge has also held that no notice was stuck up at any conspicuous place. So far as the notice on the defaulter is concerned, the Court below has found that there was violation of requirement of law in this regard. Despite this, as already stated, the suit has been dismissed holding it as beyond time.

Shri Majumdar has assailed the finding on the limitation. To determine this it has first to be decided which Article of the Limitation Act would govern a case like the present. According to the Court, below, it is primarily Article 99 which has prescribed the period of one year in this regard. As the sale had taken place on 16.5.55, the suit was apparently much beyond time as it had been filed in 1969. The Plaintiff, however, referred to Section 17 in this regard which extends the period of limitation in case of fraud, and the limitation begins to run from the date of knowledge, According to the Plaintiff he derived knowledge in this case on 28.7.66. So, if Article 99 has to govern the case, the suit would have been barred by limitation as it was filed beyond one year of the date of knowledge. If, however, the relevant Article be 113, the suit would be saved inasmuch as it was filed on 26.7.69, According to Sri Sen, the case is governed by Article 99. His alternative submission is that the knowledge derived by the Plaintiff was not in 1966 but in 1964, as held by the learned Assistant District Judge.

Let it first be seen which of the two Articles, Article 99 or 113, is attracted in the present case Sri Sen has placed strong reliance on the Privy Counsil decision in Molakarjun v. Narhari ILR 25 Bombay 337. In that case, the applicability of Article 12 of the Old Limitation Act, which corresponds to Article 99 of the new Act, was upheld as the sale was found to be irregular only and not a nullity. The notice of sale in that case had been served on one Mamlingappa as the successor to the estate of Nagappa who was the judgment debtor and against whom the decree was sought to be executed. Ramlingappa contended that he was not the right person, but the executing did not accept the contention. It was, therefore, held that own if the executing. Court committed a mistake to hold such court sale would be safe". In the present case however, int was question of total suppression of notice and in such a situation the sale has to be regarded as a nullity as pointed out by a Division Bench of this Court in Sher Ali v. Assam Board of Revenue 1981 (1) GLR 283, Reliance is also placed by Sri Sen on Chinakaram v. Paramsiv AIR 1927 Mad 1135 . There the sale was regarded only as voidable as the decree-holder had purchased the property without court''s permission enjoined by Order 21 Rule 72 of the Code of Civil Procedure. The disregard of provisions like fixing of date, time, place etc. of sale was held in Avudainayagam Pillai Vs. Pitchiah Chettiar alias Pitchiah Pillai and Others, to render the sale as voidable and not illegal. Another decision pressed into service by Shri Sen is that of Gauri Ram Vs. Jaishi Ram and Another, In that case, despite allegation of fraud the sale was held voidable as the fraud was practices on the Court in getting the sale confirmed on the very date of the sale.

None of the aforesaid decisions has laid down that where the sale in void, a nullity as distinguished from voidable, the suit to set aside the same will be governed by Article 99. In such a case, as per the decisions in (Hafez) Ahmed Yar Khan Vs. Dina Nath Sadhukhan, and Bulaki Das and Others Vs. Kesri and Others, Article 12 would not apply. A Full Bench of Calcutta High Court held in Puran Chandra v. Dinabandhu ILR 34 Calcutta High Court held in Puran Chandra v. Dinabandhu ILR Cal 811 that a suit brought to set aside a sale effected without service of notice would really be governed by Article 142 of the Limitation Act.

In view of the above position in law, I have no difficulty in holding that the suit in the present case would be governed by Article 113 of the new Limitation Act as there is no specific article in this Act dealing with cases of fraud. It may be stated that though in the impugned judgment the learned Assistant District Judge has mentioned about Article 59 at one place and 95 at another, it is apparent that none of these Articles has any application. As such I hold that the suit was governed by Article 113.

Sri Sen submits that even in that case the suit was beyond time as knowledge of the Plaintiff dates back from 1964 and not 1966. The learned Assistant District Judge had come to this finding by relying on three facts: (i) evidence of the Plaintiff in this suit: (ii) his statement in T.S. 44/68 (which was numbered as T.S. 107/67 when filed); and (iii) order passed in D.P. Cases No. 53/64 and 477/64. So far as the first is concerned, I have looked into the evidence myself. Though at some Stage of cross-examination the Plaintiff had stated, as pointed out by the learned Court below that he knew about the D.P. Cases in 1964, his very next line of deposition is that he did not state that he did not take any step till today despite knowing about the sale in 1964. Immediately thereafter he denied the suggestion that he had known about the sale in 1964. As such it would not be a correct reading of the evidence to hold that the Plaintiff bad admitted that be had known about the sale in 1964. To fortify this finding, the learned Assistant District Judge referred to the deposition of the Plaintiff given as D.W. 1 in T.S. 44/68. Under the law, it was incumbent on the part of the Defendants in this suit to bring to the notice of the Plaintiff if he had made any contradictory statement previously. But this was not done. As to the order passed in the aforesaid D.P. Case the learned Assistant District Judge had only presumed that the Plaintiff must have known about the sale not from the date of hearing of the case as averred by the Plaintiff, but from before. There is however, nothing in Ext. 6 to fortify this conclusion of the learned Assistants District Judge. Such a conclusion ought not to have been arrived at merely on the basis of presumption, as after all it cannot be forgotten that a valuable property of the Plaintiff woith Rs. 10,000/-according to him, was sold at Rs. 50/- only. It was thus a case of fortune having been sold for a farthing.

In view of the above it has to be held that the finding of the earned court below that the Plaintiff bad derived knowledge in 1964 is not based on legal evidence and is partly due to misreading of the evidence. Such a finding is amenable to interference by this Court in a second appeal.

Keeping in view the evidence led in the case, I would hold that the Plaintiff bad derived his knowledge on 28.7.66, and the suit having been filed on 26.7.69 was within time. It being the concurrent finding of the Courts below that notices were not properly served as required by Section 8 of the Bengal Patani Talug Regulation, 1819, the suit of the Plaintiff has to be decreed and as such I set aside the judgment and decree of the learned Assistant District Judge by which he has dismissed the suit.

The result is that SA 69/76 is allowed by decreeing the suit of the Plaintiff. As T.S. No. 44/88 (earlier numbered as T.S. 107/67) had been filed against the Appellant for his eviction oh strength of derivation of the title by the Plaintiff in this Case because of his purchase of the property in the auction sale the suit has to be dismissed as a consequence to the setting aside of the auction sale even if that was within time. The necessary corollary is that SA 123/76 also stands allowed.