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TMI Blog1888 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... in the same patta but belonging to Chengadu. 2. The sale took place on the 18th July 1884, and the present suit to set it aside was brought on the 16th July 1885, The ground of claim was that the second defendant, the purchaser, colluded with the karnam and the monigar of the village and fraudulently brought about the sale, in order to deprive the plaintiff of his land. The plains stated that the second defendant was the plaintiff's enemy, that the assessment due on the land in dispute for fasli 1291 was not in arrear, that it was sold for arrears amounting to ₹ 4-6-2 due by the pattadar on some other land, and that it was purchased for ₹ 12-4-0, whilst it was worth ₹ 200. It was alleged further that neither the pattadar nor the plaintiff was served with notice to pay the arrears, that the sale was not duly proclaimed, that it was held secretly, and that the provisions of Act II of 1864 were not duly complied with. The defendants pleaded, inter alia, limitation in bar of the claim and relied on Section 59 of the Revenue Recovery Act. The District Munsif, and on appeal, the District Judge upheld the contention and the plaintiff preferred a second appeal from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... six months. It is provided by Section 18 of Act XV of 1877 that when any person having a right to institute a suit has, by means of fraud, been kept from the knowledge of such right, the time limited for instituting a suit shall be computed from the time when the fraud first became known to the person injuriously affected by it. Though this provision is contained in the general Act of Limitation, and Act II of 1864 is a special law applicable to Revenue sales, yet it applies to the case before us, as Section 6 of Act XV of 1877 directs only that the period of limitation, prescribed by the special Act, shall not be affected by that enactment. This view, however, does not help the plaintiff; for the District Judge observes that the plaintiff had knowledge of the alleged fraud more than six months before suit. I am unable to accede to the suggestion of the appellant's Counsel that the sale in the case before us is not a proceeding under Act II of 1864 within the meaning of Section 59. The true import of the expression Aggrieved by any proceedings under the Act is not that the proceedings should be in accordance with the Act and therefore perfectly legal, but that the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prescribed procedure is certainly always an irregularity and may also at times be a material irregularity, but I see no sufficient reason to say that the proceeding, however irregular it may be, is no a proceeding under the Act. A distinction should be made for purposes of limitation between a sale in fact and a valid sale; and whenever there has been a sale in fact and it has been made in the professed exercise of the power conferred by the Act, the provision inserted for the limitation of suits must be taken to refer rather to the factum than to the validity of the sale, and the sale, however irregular, must be considered to be a proceeding under the Act. 7. It is then said that the plaintiff was not a party to the proceedings held under the Act, and that he could not be bound by the sale; but I am unable to accede to this suggestion either. It is provided by Section 38 that when land is purchased at a Revenue sale, the certificate of sale shall be conclusive evidence of the fact of the purchase, and by Section 39 that the legal effect of such sale is the lawful succession of the purchaser to all the rights and property of the former land-holder in the land sold. It is furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was professedly held under the Act, but that the question was whether it was a sale under the Act, if the Collector had no right to sell, and that the principle laid down in Baijnath Sahu v. Lala Sital Prasad applied. It is therefore argued for the appellant before us, that whenever it can be shown that some material error of procedure negatives the Collector's right to sell, the sale, though professedly made under Act II of 1864, is not in law a sale or proceeding under the Act. The scheme of Act XI of 1859 and of Bengal Act VII of 1868 appears to differ from that of Madras Act II of 1864, and the decisions cited proceed, with reference to that scheme, on the view that the Civil Court is at liberty to entertain a suit to set aside the sale for arrears of revenue, if it can be shown that the Collector had no power to sell, either because there were no arrears, or because there was some material irregularity, which would invalidate the sale. If we were at liberty to enter on the merits, we might come to the same conclusion, but what we are concerned with is the question of limitation, which refers, as already observed, to the factum rather than the validity of the sale, (Compare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Limitation Act was considered to he applicable. It is therefore an authority for the position that if the plaintiff's claim can be decreed in the special circumstances of a case, on the ground that the real purchaser, by virtue of his fraud in creating a jurisdiction to sell, when there is none, can be regarded as holding the land purchased in trust for the real owner, notwithstanding the Revenue sale, it is not a claim under the special Act, but a claim to relief on the ground of fraud governed by Article 95 of Act XV of 1877. It is clearly no authority in support of the contention that a Revenue sale is no proceeding under the Act, when there was an arrear for which the land might he sold under the Act. 14. The other cases cited are in favour of the respondents' contention. 15. For these reasons I would hold that the suit before us is governed by the special limitation prescribed in Section 59 of Act II of 1864, subject to the provisions of Section 18 of Act XV of 1877. Kernan, J. 16. I would add to the last paragraph and that the suit should have been brought within six months from the discovery of the fraud. Parker, J. 17. I agree that the suit i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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