1. Second Appeals Nos, 1088 and 1089 of 1961 have been heard together and this judgment will govern both the appeals.
2. These two appeals are by the plaintiff who instituted two suits being Title Suits Nos, 79 and 80 of 1959, for setting aside the certificate sales held under K. D. 2166 of 1952-53 as well as K. D. 2165 of 1952-53 which were alleged to have been fraudulent, collusive and null and void.
3. I he case of the plaintiff is that plaintiff and pro-defendant No, 5, the father of the auction- purchasers-defendants Nos, 1 to 3, were co-sharers in 4.83 as well as 1.28 acres of land mentioned in the schedule of both the suits in moiety shares ; that the tenancy was diluviated and so the plaintiff and the pro-defendant No, 5 were to leave the disputed Mouza of Char Voira for Char Narayanpur and that the Government gave remission of rent due to diluvion and the lands were reformed in 1359 B.S. when the plaintiff grew grass and possessed the same. Thereafter the plaintiff learnt that the properties were sold in auction in the aforesaid certificate proceedings and also found that they were purchased by pro-defendant No, 5 in auction sale in the benami of his sons who are defendants 1 to 3 in the suit.
4. Plaintiff filed applications under section 23 of the Bengal Public Demands Recovery Act, 1913 (Bengal Act III of 1913) (hereinafter referred to as the Act), for setting aside the same and being unsuccessful there, has brought the above two suits. The further case of the plaintiff was that no notice under section 7 and rule 46 to Schedule H of the Act was served in any of the cases nor any sale proclamation was served in the locality. The plaintiff further averred that he believed that pro- defendant No, 5, in collusion with the Tahsildar and others who are relations of pro-defendant No, 5, fraudulently suppressed the notice.
5. The suit was contested by defendants 1 to 3 who appeared and filed a joint written statement raising a bar of the suit under section 42 of the Specific Relief Act as well as under sections 36 and 37 of the Public Demands Recovery Act. They denied the case of diluvion and that the plaintiff left for Ram Rayer Kandi Narayanpur as alleged. The further case of the defendants was that the lands were diluviated in 1954 and they were reformed in 1355 B.S. Thereafter there was no diluvion and no one applied for remission of rent and that the lands were never in river bed in the year 1357-58 B.S. and that there was no fraud or irregularity in the certificate proceedings.
6. The trial Court framed several issues of which issue No, 4 is material which may be reproduced as follows :-- "4. Were there fraud and material irregularity in the certificate proceedings and are the certificates and the sales thereunder fraudulent, collusive and null and void and are they liable to be set aside ?"
7. Both the parties led evidence and the trial Court, after consideration of the evidence on record, found that the suits were maintainable and that the sales were brought about fraudulently and collusively and, as such, it decreed both the suits. Against that decision defendants 1 to 3 went on appeal and the learned Subordinate Judge, 2nd Court, Faridpur, who heard the appeal, found that the plaintiff was entitled to raise the question of fraud and that it was not barred by res judicata. He also found that the notice under section 80, C. P. C. was duly served. But he found that under the provisions of sections 36 and 37 of the Act, the suits were not maintainable and only on that preliminary ground he dismissed the two suits.
8. The short point for consideration is as to whether the suits are maintainable. A person can bring a suit under section 36 of the act if it is shown that no notice under section 7 has been served on him and that he has sustained a substantial injury, but he will be debarred if the suit is not instituted within one year from the date on which possession of the property was delivered to the purchaser.
9. The suit will also be barred if the certificate-debtor has made appearance in the certificate proceeding, or has applied to the Certificate Officer under section 22 or section 23 of the said Act.
10. Section 37 of the act provides that all matters relating to execution, discharge and satisfaction of the certificate will be determined by the Certificate Officer. But there is a proviso which says that a suit may be brought on any such question upon the ground of fraud. These suits, therefore, are fully covered by the proviso to section 37. In this connection the decision in the case of Akmal Khan v.
11. Amaresh Chandra Roy and others may be cited where a Division Bench of this High Court has gone to the extent of conceding an auction-purchaser the right to bring a suit. Another decision is the case of Anu Mian and another v. Osi Miah and others and is more or less on the facts of a similar nature where it was held that when a suit is instituted on ground of fraud, the suit is maintainable. The same view was taken in the case of Lalit Mohan Sen v. Manoranjan Ghosh Chaudhuri and others and in the case of Basanta Kumar Pal and another v. Harendra Nath Mukhopadhyya and others . In the last mentioned case a suit was found maintainable but the plaintiff was found to have failed to prove that there was any fraud. In view of these decisions as well as the provisions of the Act it is apparent that the learned Subordinate Judge was wrong in holding that the suits were not maintainable.
12. The learned Subordinate Judge has not at all considered the merits of the suits which were considered and decided by the trial Court and, as such, the cases are sent back on remand to the first appellate Court to give its decision on all the issues raised by the parties and decided by the trial Court.
13. In the result, the appeals are allowed, the judgments and decrees passed by the lower appellate Court are set aside and the cases are sent back to the said Court for re-hearing and disposal of1 2 3 4 the appeals in accordance with law and in the light of the observations made above. There will, however, be no order as to costs in these appeals. PLD 1967 Dacca 299 71 C L J 251 36 C L J 208 30 C W N 36