Ramkeshwar Singh vs Kesho Prasad Singh and Others

James, J.—Two brothers Rameshwar Nath Singh and Ramkeshwar Singh had incurred liability for costs in a Collectorate partition for which a certificate was issued under the Public Demands Recovery Act. Their property was duly brought to sale and objections to the validity of the sale were overruled.

The two brothers then instituted separate suits against the purchasers of the property alleging that notice had not been served u/s 7, Public Demands Recovery Act, and alleging also fraud on the part of the auction purchasers. The suit of the brother Rameshwar Nath was heard first. It was dismissed in the trial Court and an appeal to the District Judge and a second appeal to the High Court both failed. We are concerned with the suit of Ramkeshwar Singh.

This man alleged that notice u/s 7, Public Demands Recovery Act, had not been served and that the proceedings under the Act were vitiated by the fact that he had been kept out of knowledge of them by the fraud of his brother Rameshwar Nath in collusion with the ultimate auction-purchasers. The Munsif found that notice had been served and that fraud had not been proved and he dismissed the suit. His decision was reversed on appeal by the Subordinate Judge. Regarding the notice u/s 7, Public Demands Recovery Act, the Subordinate Judge found that it had not been validly served because the service report of the peon did not contain particulars which the Subordinate Judge considered were required by the rules made under the Public Demands Recovery Act. The Subordinate Judge found that collusion between Rameshwar Nath and the auction purchasers had not been proved and that it had not been proved that Rameshwar Nath profited in any way by the proceedings in the certificate case; but the service of the sale proclamation under Rule 25 of the Statutory Rules had been accepted, by Rameshwar Nath on behalf of both the certificate debtors, and the Subordinate Judge held that Rameshwar Nath had committed fraud by omitting to inform his brother Ramkeshwar Singh of the service of the sale proclamation. The decision of the Subordinate Judge was set aside on second appeal in the High Court.

The learned Judge of this Court held that as Ramkeshwar Singh was a defendant in Rameshwar''s suit, the findings of fact in that suit amounted to res judicate binding on Ramkeshwar Singh, so that it was not open to the Subordinate Judge to find that notice u/s 7 of the Act had not been served. The learned Judge also pointed out that the plaintiff Ramkeshwar had failed to substantiate every allegation of fraud which he had made and he held that the residuum which remained, the mere failure to inform Ramkeshwar Singh of the service of the sale proclamation, was not sufficient to support a finding that the sale had been vitiated by fraud.

Mr. Rajeshwari Prasad on behalf of the plaintiff, appellant argues that the findings in the earlier decision cannot properly be treated as res judicata so far as Ramkeshwar is concerned, because although their interests were hostile on the face of it in the earlier proceedings, Ramkeshwar had no real interest either by opposing or supporting Rameshwar''s claim to his own share. He argues that the findings of the learned Subordinate Judge that notice u/s 7 had not been served and that Rameshwar committed fraud in connexion with the notice of sale proclamation are findings of fact which are binding on the High Court in second appeal.

For the notice u/s 7, the learned Judge of this Court has pointed out that on the same evidence as was tendered in this case a Division Bench of this Court has found that the service was valid; and this must be regarded as a decision on a point of law and not merely as a finding of fact. The learned Subordinate Judge however in the present case, though he may be dealing with practically the same evidence has not arrived at a finding of fact precisely similar to that of the District Judge in the earlier case.

The evidence in the present case was as in the former case that the notice was tendered to the plaintiff Ramkeshwar who refused to accept it, whereupon it was affixed to his outer door. The learned Subordinate Judge has remarked that Rule 6 of the Statutory Rules requires that in such circumstances the peon shall report the facts in detail in his service return; and Rule 8 requires that the peon shall either swear an affidavit or be examined by the certificate officer. He points out that there is nothing in the service return describing the circumstances in which the service was made; and he also points out that there is nothing to indicate whether the serving peon used due and reasonable diligence to search for the certificate debtor, though it is difficult to understand why the search should be described when the evidence indicates that the debtors were found. The learned Subordinate Judge finds that the report of the peon itself indicates that there was no proper service according to law, apparently imagining that if a proper service of notice had been made the effect of it will be invalidated and it will cease to be proper service of notice, unless certain details are incorporated in the return of the peon supported by an affidavit or by evidence before the certificate officer. The peon is dead; and there is nothing on the record to indicate whether he was examined or not by the certificate officer; but the certificate officer did find that notice had been served and the learned Subordinate Judge was in error in supposing that the validity of the service depended in any way upon the form of the peon''s return of service.

For the finding of fraud in connexion with the service of sale proclamation, it is equally impossible to accept as a valid finding of fact the finding of the learned Subordinate Judge, because the finding is not based on evidence. There is evidence that the sale proclamation was served on Rameshwar Nath which would be a valid service on Ramkeshwar under Rule 4 of the Statutory Rules; but the learned Subordinate Judge appeared to imagine that in order to show that this was a valid service, the defendant must prove that Ramkeshwar had been informed of the service of sale proclamation by his brother. We understand that there is no evidence to the effect that Rameshwar did not inform Ramkeshwar.

The finding of the learned Subordinate Judge does not purport to be based on any such evidence. It is based on the absence of evidence on the side of the defendant. The defendant could not be expected to produce evidence in support of service of sale proclamation, which on the face of it was a perfectly valid service, to rebut a suggestion unsupported by evidence that there was some fraud in connexion with the service; and this finding that the plaintiff proved fraud in connexion with the service of sale proclamation is also a finding which cannot be supported, because it is not based on evidence.

This appeal must accordingly fail and I would dismiss it with costs.

Courtney-Terrell, C.J.

I agree.