1872 SHAHA v. DWARKAN ATH reference to the other portion of it, it seems clear that there is nothing in the Code of Civil Procedure, or in any other law that KASINATH we are aware of, which says that the provisions of s. 170 apply to those cases only in which the party summoning his opponent is not in a position to prove his case otherwise than by the evidence of that opponent, nor is there any law that it is in those cases only where the fact to be proved is solely and exclusively within the knowledge of the party summoned to appear, that the Court can apply the provisions of the section above referred to. This reasoning of the Subordinate Judge appears to be quite erro neous. We wish further to observe that we are by no means satisfied with the mode in which the Subordinate Judge has dealt with the evidence adduced by the plaintiff. The Subordinate Judge says, with reference to one of the plaintiff's witnesses, that his evidence cannot be relied upon, inasmuch as the defendants had previously mentioned in their written statement that they and the witness were not on good terms. Such reasoning appears to me to be manifestly erroneous; otherwise a party may get rid of all his opponent's witnesses, by simply saying beforehand that they are not on good terms with him. The Subordinate Judge seems to have wholly overlooked the defendants' persistent and contumacious refusal to give evidence upon the merits of the case; and taking all the circumstances into consideration, we think that the judgment of the lower Appellate Court ought to be reversed, and that of the first Court restored, with all costs. Appeal decreed. 1872 June 26. Before Mr. Justice L. S. Jackson and Mr. Justice Markby. SRINATH GHOSE AND OTHERS (DEFENDANTS) v. HARONATH Act VIII of 1865 (B. C.)—Sale for Arrears of Rent-Fraud—Rights of a A proprietor of a talook, which was about to be sold for arrears of rent, entered into an arrangement with the plaintiff, whereby, in consideration of a share in the purchase, he agreed to use his influence to urge on the sale, and to secure the purchase to the plaintiff. Under this arrangement the plaintiff became the purchaser of the talook, and the former proprietor obtained a share in the purchase. A suit by the plaintiff to oust the under-tenants was dismissed; the plaintiff took only as a purchaser at an ordinary execution sale, and did not obtain the benefit of s. 16 of Act VIII of 1865 (B. C.) (1). IN execution of decrees for rent amounting to Rs. 14,645-9-6 against Srinath Ghose and his co-sharers, the ousut talook Lakhinarayan Ghose, paying a rent of Rs. 1,395, was sold by the Deputy Collector of Perozepore, and was purchased by Haronath Chowdhry and Chandra Kumar Das. The Collector confirmed the sale, notwithstanding an application by the decreeholder to have it set aside on the ground of irregularity, and fraud. The decree-holder appealed to the Commissioner, who set * Regular Appeal, No. 168 of 1871, from a decree of the Officiating Judge of Backergunge, dated the 14th April 1871. (1) Act VIII of 1865 (B. C.), s. 16."The purchaser of an under-tenure sold under this Act shall acquire it free of all incumbrances which may have accrued thereon by any act of any holder of the said under-tenure, his representatives, or assignees, unless the right of making such incumbrances shall have been expressly vested in the holder by the written engagement under which the undertenure was created, or by the subsequent written authority of the person who created it, his representatives, or assignees. Provided that nothing herein contained shall be held to entitle the purchaser to eject khudkasht ryots or resident and hereditary cultivators, nor to cancel bonâ fide engagements made with such class of ryots or cultivators aforesaid by the rates incumbent of the under-tenure or his representatives, except it be proved, in a regular suit to be brought by such purchaser for the adjustment of his rent, that a higher rent would have been demandable at the time such engagements were contracted by his predecessor. Nothing in this section shall be held to apply to the purchase of a tenure by the previous holder thereof, through whose default the tenure was brought to sale." 1872 SRINATH v. HARONATH DHRY. the sale aside. Thereupon the purchasers appealed to the Board of Revenue; and by direction of the Board, the then Commissioner cancelled his predecessor's order, and confirmed the sale. Haronath Chowdhry then brought the present suit, stating in Durr Chowhis plaint that the talook had been sold for arrears of rent under Act VIII of 1865 (B. C.); that he was the purchaser of a 12-anna share, and that Chandra Kumar was the purchaser of the other 4-anna share thereof; that on his going to take possession of the property, he was opposed by the defendants, Nilmani Bipari and others, on the ground that they held a howla and shikmi tenure under the former proprietors; that by virtue of his purchase he was entitled to possession free from all incumbrances created by the former proprietor. He prayed that he might be put in khas possession. The defendants in their written statement set up, inter alia, that the plaintiff was a relative of Srinath Ghose, one of the former proprietors, and that Srinath had, in collusion with the plaintiff, caused the talook to be sold, and had purchased it himself in the name of the plaintiff; that the plaintiff, being merely a benamidar of the former proprietor, had no right to possession free from encumbrances created by the former proprietor; and that as they, the defendants, held the land in dispute under a good and valid title from the ancestor of Srinath Ghose, they could not be ousted. Srinath Ghose, Ramnarayan Ghose, and Gaur Chandra Ghose applied to the Court, stating that the plaintiff had purchased the talook benami for them, the original proprietors, for whose arrears it had been sold, and that the sale having been set aside by the Commissioner, they were the rightful owners and in possession of the property. They were made parties to the suit. The Judge raised the following issues: First." Whether the sale of the ousut talook Lakhinarayan Ghose to the plaintiff and Chandra Kumar Das is now in force? Second.-If it is in force, then, 1st.—Is plaintiff the real purchaser of the ousut talook, or did he purchase benami for the previous holders, Srinath Ghose and others? 1872 SRINATH v. HARONATH DUTT CHOW DHRY. 2nd. If he is the real purchaser, then is he competent to avoid the defendant's alleged howlas and take (khas) possession or not ?" The Judge held that, as the sale had been ultimately confirmed by the Commissioner under the direction of the Board of Revenue, it was valid and in force. He further found on the evidence that the plaintiff was the real purchaser of the threefourths share of the ousut talook, inasmuch as, although he had purchased it with the understanding that Srinath Ghose should subsequently acquire a share, "the arrangement was not carried out, and the latter furnished no portion of the funds." He accordingly passed a decree in favor of the plaintiff. The defendants appealed to the High Court. Mr. Woodroffe (Baboos Ramesh Chandra Mitter, Durga Mohan Das, Rashbehari Ghose, and Kasikant Sen with him) for the appellants. Mr. Kennedy (Baboos Annadaprasad Banerjee, Kali Mohan Das, Chandra Madhab Ghose, and Ram Charan Mitter with him) for the respondent. Mr. Woodroffe contended that, as the sale was effected in collusion with the defaulter, the plaintiff could derive no title as an auction-purchaser under Act VIII of 1865 (B. C.)Nawab Sidhee Nuzur Ally Khan v. Rajah Rajah Oojoodhyaram Khan (1). His right was that of an ordinary private purchaser, and, as such, he was not entitled to set aside any incumbrance or tenure created by the defaulter. Srinath was bound to protect the rights of his under-tenants, and his not having done so was gross fraud on his part. Mr. Kennedy contended that, as fraud had neither been alleged nor proved in the Court below, it could not be set up in appeal. The case made out by the pleadings was not what was relied upon in appeal-Eshenchunder Singh v. Shamachurn Bhutto (2). Fraud must be proved; mere allegation is not 1872 SRINATH v. HARONATH DHRY. sufficient-Bowen v. Evans (1). Unless there was an engagement previous to sale, nothing done subsequent to the sale could alter the existing equities. There was no engagement. There might have been a negotiation which gave Srinath a hope Durr Chowof getting some property and some advantage. Nawab Sidhee Nuzur Ally Khan v. Rajah Oojoodhyaram Khan (2) is distinguishable, as in that case there were no existing arrears of rent at the time when the arrangement was made; it was in consequence of the contract that the estate fell into arrears. Here there was no contract, there had merely been negotiations for a contract. The evidence had wholly failed to prove an agreement or arrangement to bind the parties. It was impossible for the family to raise funds to pay the rent, consequently the estate fell into arrears. The circumstances of the case could not constitute the purchase by the plaintiff a purchase in trust for SrinathNesbitt v. Tredennick (3). Mr. Woodroffe was not called upon to reply. MARKBY, J. (after stating the pleadings and the issues, continued)-The facts of the case seem to be as follows:-Sonamani, the zemindar, had a decree for rent for a large amount against Srinath and his co-sharers, who held what is called an ousut talook in the zemindari, and a sale of the tenure was threatened. Ambika Charan, the agent of Sonamani, and the plaintiff Haronath were each of them desirous to purchase the tenure provided they could make some favorable arrangement for that purpose with Srinath who had the management of the whole affair, his co-sharers not interfering at all. The arrangement that Ambika Charan desired was that the decree-holder should have one-half; himself one quarter; and Srinath Ghose one quarter; he and the decree-holder were to find the funds; and the decree-holder and Srinath were to arrange that the biddings should be kept down. Ambika Charan hoped that he had secured this arrangement, and he went to the sale prepared to bid up to Rs. 80,000 and make the deposit. If he could have carried out his plans, he would have got one quarter of the property (3) 1 Ball & B., 29, (1) 2 H. L., Ca., 257. (2) 10 Moo. I. A., 322. |