Authored By : L.C. Adami, Das
L.C. Adami, J.
1. The defendants in the suit oat of which the second appeal arises had mortgaged a part of their mal raiyati interest of Mouza Routdib to one Golab Marwari. Golab Marwari obtained a mortgage decree and in execution of that decree, the plaintiff purchased the property at the auction sale and proceeded to take possession. The defendants, however, resisted the plaintiff's attempt to take possession of plots Nos. 2, 8 and 11, contending that they were the exclusive owners of the jotes and were entered as such in the Record of Rights. The plaintiff then instituted a suit to recover possession of these plots.
2. With regard to plot No. 11, there is no contest, the plaintiff having given no claim to it. The mortgage of the properties was executed on 24th July 1903. The Settlement Record was finally published on the 14th June 1904 and the suit was instituted on the 6th January 1909. The Subordinate Judge found that the allegation made in the plaint that the entries in the Record of Rights were obtained by fraud of the defendants mortgagors, was not proved; be dismissed the plaintiff's suit.
3. On appeal the learned District Judge found that the entries in the Record of Rights were, under section 25 of the Regulation III of 1872, conclusive and that no evidence could be given to controvert them. He also found that the plaintiff-purchaser should have examined the Record of Rights before his purchase and if he had done so, would have found that the plots in question would not pass by the sale. With regard to the allegation of fraud, he has stated that it is very doubtful if, in view of the wording of section 23, Regulation III of 1872, a suit could be brought to set aside the entry on the ground of fraud. He has not considered any evidence there may be on the record with regard to the allegation of fraud.
4. It is contended that the lower Appellate Court should have considered and come to a finding on the question of the alleged fraud, while, on the other band, the learned Vakil for the respondents contends that under sections 25 and 11 of the Regulation no suit lies to set aside an entry in the Record of Rights framed under the Regulation and that such entries have the force of a Civil Court decree. It is argued that the general law as to the competency of a suit to set aside a decree on the ground of fraud will not apply to an entry in the Record of Rights under the Regulation. In my opinion, this contention cannot be upheld. Proof of fraud is sufficient to nullify a decree or order whether under the Civil Procedure Code or otherwise, and if the plaintiff in the present suit succeeds in proving that the entry was obtained by fraud he will be entitled to have the decree declared null. The record should, I think, be remanded to the lower Appellate Court to consider the evidence on the record with regard to the allegation made in the plaint as to fraud, and if it is found that fraud in securing the entries in the Settlement Record is proved, the plaintiff's suit should be decreed.
5. The ground on which the learned District Judge mainly dismissed the plaintiff's suit, namely, that the principle of caveat emptor must be applied, cannot properly be raised in this case. The mortgage was executed, and these plots were included in it before the Settlement Record was published and what the plaintiff purchased was the property of the mortgagor as it stood at the time the mortgage-bond was executed.
6. I would set aside the judgment of the lower Appellate Court and direct that after considering the evidence on the record as mentioned above the District Judge should decide the suit according to law.
7. The appellant is entitled to costs in this Court.
8. The costs in the Court below will abide the result.
Das, J.
I agree.
