The Judgment of the Court was as follows;—

One Gour Binode Chaudhuri was a part-proprietor of touzi No. 668B(1) of the Rangpur Collector ate. He borrowed money from the Gaibandha Loan Office (hereafter called the Bank) by mortgaging thirty-six mouzâs of the said zemindâri. The said Bank enforced its mortgage and got a final decree for sale before the year 1928. In 1929, the mortgaged properties were sold in execution of that mortgage-decree and purchased by the Bank, but that sale was set aside and there has not been any sale since then in execution of that decree.

On June 3, 1929, Gour Binode sold by five kabâlâs specified villages of the said zemindâri to the five plaintiffs, namely, twenty-three villages to plaintiff No. 1, one village to plaintiff No. 2, one village to plaintiff No. 3, five villages to plaintiff No. 4 and twenty villages to plaintiff No. 5, Ajimuddin Mia Pahlowan. Plaintiff No. 1 is the wife and plaintiff No. 4 is a son of plaintiff No. 5. Out of the fifty villages so sold, plaintiff No. 5, his wife and his son purchased forty-eight villages between them and the remaining two villages were purchased by the other two plaintiffs who are very near relations of plaintiff No. 5.

It appears that the proprietors of the said touzi, including the plaintiffs, did not at times pay revenue and cesses with the result that the Bank had to pay the revenue on some occasions to save the property from revenue sale. There were arrears of cesses for a number of kists and, for the realisation of the same, the Collector filed certificates under the Public Demands Recovery Act (Bengal Act III of 1913). One of the certificates was for the arrears of cess for the March kist of 1930. It was numbered Certificate Case No. 57 of 1930-1931. The arrears claimed therein amounted to Rs. 181 odd. In execution of this certificate, the mortgagee, namely, the Bank, purchased the right, title and interest of Gour Binode and of the five plaintiffs on August 5, 1931, for Rs. 800. The said sale was confirmed after an ineffectual attempt by the plaintiff No. 5 to set it aside under ss. 22 and 23 of the Public Demands Recovery Act, and possession was delivered to the purchaser on May 7, 1932. The suit in which this appeal arises was filed on June 23, 1933, that is beyond one year of the date of the delivery of possession. The principal defendants to the suit are: (1) the Bank, that is, the Gaibandha Loan Office and (2) the Secretary of State for India in Council. Gour Binode has also been made a defendant, but admittedly he has no interest in the litigation. The suit is based on two grounds. The plaintiffs say, firstly, that the sale under the Public Demands Recovery Act is bad, inasmuch as the notice under s. 7 of the said Act had not been served on them. Their alternative case is that there was fraud on the part of the auction-purchaser, the Bank. On these grounds, they pray for recovery of possession of the fifty villages which they had purchased in 1929 from Gour Binode. The learned Subordinate Judge has negatived their case of fraud, but has accepted their case of non-service of the notice which is required to be served under s. 7 of that Act. As plaintiff No. 5, had appeared in the certificate case and had applied to set aside the sale under s. 23 of that Act, he refused him relief, but gave a decree to the other four plaintiffs for possession of the villages they had respectively purchased from Gour Binode. Against this decree the Bank has filed the appeal, wherein it challenges the finding of the learned Subordinate Judge on the question of limitation and the finding on the question of the service of the notice issued under s. 7 of the Act on the plaintiffs other than plaintiff No. 2. The plaintiffs have filed a memorandum of cross-objections, wherein they challenge the finding of the learned Subordinate Judge on the question of fraud. We will first consider the cross-objections.

The case of fraud is pleaded in paragraphs 5 and 6 of a plaint.

Their Lordships then deal with the evidence on the question of fraud.

These facts demolish the plaintiffs' case of fraud as made in the plaint. We, accordingly, do not see any substance in the cross-objection.

The period of limitation for suits brought under s. 36 of the Public Demands Recovery Act is provided for in that section itself. So, no question of the applicability of Art. 12 of the Limitation Act arises. Section 36 of the Act says that such a suit must be filed within a year of the date of delivery of possession to the purchaser at the certificate sale. Here that date is May 17, 1932. But the suit was filed on June 23, 1933, that is beyond a year from the relevant date. The certificate-holder, namely, the Secretary of State for India in Council, was made a defendant and the other principal defendant was the auction-purchaser at the certificate sale, namely, the Bank. A notice was served on the Secretary of State for India in Council, under s. 80 of the Code of Civil Procedure, and, only if the Secretary of State was a necessary party to the suit, the period of the notice, namely, two months, can be excluded, and, in that event, the suit would be in time. The only question on which the question of limitation depends is, accordingly whether the Secretary of State was a necessary party to the suit. As certificate-holder, he was vitally interested in maintaining the sale and so would prima facie appear to be a necessary party. In the case of Gobinda Chandra Shaha v. Hemanta Kumari Debi, it was held by a Division Bench that, where the Secretary of State was the certificate-holder, he was a necessary party to a suit brought to set aside the certificate-sale. That case was, however, decided when the Public Demands Recovery Act of 1895 was in force. Mr. Gupta appearing on behalf of the Bank tries to distinguish that case on the ground that the reasons given in that decision are not available after the repeal of that Act and the enactment of Bengal Act III of 1913. In that case Maclean, C.J based his decision on the sole ground that s. 6 of Act I of 1895 (section 8 is obviously a slip) had enacted that a certificate filed under s. 5 shall have the effect of a decree of a civil Court and the Secretary of State for India in Council (that is, the certificate-holder) shall be deemed to be the decree-holder. As this provision is not in Act III of 1913, his argument is that decision is no longer good law.

Generally speaking the scheme of the two Acts is the same and the provisions of Act III of 1913, so far as they are material to the question before us, are in substance a reproduction of the provisions of the repealed Act. There are differences in detail, but those differences need not be considered in this case. The one departure which is material is that under Act I of 1895 the procedure for execution of a certificate and post-sale proceedings, e.g, proceedings to set a side such sales, etc., were to be regulated by the relevant rules of Code of Civil Procedure, whereas the Act now in force (Bengal Act III of 1913) is a self-contained Act, which contains provisions which deal with execution of certificates, certificate-sales and those post-sale proceedings. As the procedure for execution of Certificates and the post-sale proceedings had to be regulated by the Code of Civil Procedure under the repealed Act, it was necessary to say in that Act that a certificate would have the force of a civil Court decree and the certificate-holder and the certificate-debtor were to be deemed as the decree-holder and the judgment-debtor respectively. Bengal Act III of 1913 being a self-contained Act, it was no longer necessary to retain that provision, but the essence of a certificate, in our judgment, is not modified by that omission. It is conceded before us that if the certificate-holder be a private person, for instance, a ward of the Court of Wards, he would be a necessary party to a suit brought under s. 36 of Act III of 1913. There cannot also be any doubt that in a suit brought under s. 34 of that Act for cancellation of a certificate—and such a suit would ordinarily be instituted before the certificate-sale—the Secretary of State, if he is the certificate-holder, would be a necessary party to that suit, for the only person who could be made the defendant would be the certificate-holder, there being no other person at that stage to oppose that suit.

Section 36 of Act III of 1913 does not state who are to be the defendants in a suit brought under it. The suit contemplated therein follows in point of time, i.e, comes after, the certificate-sale. The auction-purchaser would be a defendant, and no doubt he would be there to support the certificate-sale. The certificate-holder, be he the Secretary of State for India in Council or any other individual would also be interested in maintaining the sale, for if the sale be set aside, apart from the trouble and expense of a re-sale, the re-sale may not fetch the same price which the first sale had fetched, and that price may not cover the amount of the certificate-debt. In these circumstances, are we to hold that the certificate-holder need not be made a party defendant simply because he would have had in the suit a common interest with the auction-purchaser? If here had not been any indication in the Public Demands Recovery Act of 1913, it could possibly have been argued, on the analogy of suits brought to set aside a revenue-sale, that where the certificate-holder is the Secretary of State, he need not be made a party defendant, the is to say, he may be a proper, but not a necessary party. In fact, Mr. Gupta's argument proceeds on the decisions given in that type of cases, namely, suits to set aside revenue-sales, namely. Bal Mokoond Lall v. Jirjudhun Roy and Balkishen Das v. Simpson. In the first place it would not be right to proceed by way of analogy when the scope of the two Acts, the Bengal Revenue Sales Act and Bengal Public Demands Recovery Act, are different. But apart from that consideration other provisions of Public Demands Recovery Act (III of 1913) furnish the clue. There are two alternative, but mutually exclusive, procedures provided for in the Public Demands Recovery Act of 1913 to set aside a certificate-sale on the ground of non-service of the notice issued under s. 7 of that Act. One is by an application to the certificate-officer (s. 23) and the other is by suit in a civil Court (s. 36). Where the first method is adopted by the certificate-debtor his application must be heard with notice to both the auction-purchaser and the certificate-holder (proviso to s. 25). We do not see why both of them should not be necessary parties, defendants, in a suit under s. 36, where the same relief is asked for and on the same ground. For these reasons we hold that the Secretary of State for India in Council (now the Province of Bengal) is a necessary party to a suit under s. 36 of the Public Demands Recovery Act. This suit was accordingly instituted in time.

The last point for consideration is whether the service of notice under s. 7 of the Public Demands Recovery Act has been proved. We take it that, where in a suit instituted by the certificate-debtor under s. 36 of the Act, service of notice under s. 7 is denied by the plaintiff, the initial onus is on the person who alleges service, that is to say, on the defendant who tries to maintain the certificate sale. There is some authority for this proposition: Nabadwip Chandra Nandi v. Dolgobinda Nandi; Rakhal Chandra Rai Chowdhuri v. Secretary of State for India in Council. To discharge that onus, the Bank did not adduce oral evidence. It did not prove the return of service of the peon, or his affidavit. It simply exhibited the order-sheet of the certificate-case. That order-sheet (Ex. 14) shows that there were six certificate-debtors. It further shows that the certificate was filed, although no service-return on certificate-debtor No. 6, who is plaintiff No. 2 in the suit, was received. The Bank concedes that there is no proof of service of the notice on him. The sale against him cannot, therefore, stand. He is interested in one mouzâ only, which is mentioned, in schedule kha of the plaint. The sale of that mouzâ, therefore, must be set aside. The order-sheet however, records the fact of service of notice on the other certificate-debtors. The question is, whether the entry is some evidence of service. In a number of cases decided by this Court: Mir Tapurah Hossein v. Gopi Narayan; Radhay Koer v. Ajodhya Das; Nabadwip Chandra Nandi v. Dolgobinda Nandi (supra), Prafulla Nath Tagore v. Shital Khan, it has been held that an entry in the order-sheet recording that notice had been served is no evidence of service. In none of, these cases, s. 35 of the Evidence Act was considered. In Manindra Chandra Roy Choudhury v. Gopi Ballav Sen this Court laid down two propositions, namely: (i) that such an entry is evidence of the fact of service and (ii) that such an entry raises a presumption under s. 114 of the Evidence Act, that the service was in accordance with the rules prescribed. For the second proposition reliance was placed on the decision of the Judicial Committee in Mohammad Akbar Khan v. Musharaf Shah. It seems that the earlier cases on the point decided by Division Benches of this Court were not brought to the notice of the Court or considered by it. The only case which was cited by the respondent was the case Ashanullah Khan v. Trilochan Bagchi. That case had no bearing on the point, for it only decided that s. 114 of the Evidence Act did not authorise a presumption that a notice had been issued. In these circumstances, we are asked by the plaintiffs respondents not to follow the decision in Manindra's case in so far as it has laid down that an entry in the order-sheet to the effect that notice had been served is evidence in support of service. If there had not been any decision of the Judicial Committee on the point, we would not have acted on that decision, but would have adopted the constitutional method of referring the matter to a Full Bench, for, where a Division Bench disagrees with the decision of another Division Bench, it is duty to refer the matter to a Full Bench and it cannot simply follow the earlier decision. There is, however, a decision of the Judicial Committee relevant to the point, we are considering, but unfortunately it was not noticed in Manindra's case. The case is Collector of Gorakhpur v. Ram Sundar Mal. In that case, the plaintiff claimed an impartible estate from the widow of the last holder on the basis of a transfer from the son of one Indrajit Mal. One of the questions in the suit was whether Indrajit Mal was an agnate of Raja Kaushal Kishor Prasad Mal, the last male holder of the impartible estate. That depended on the question as to whether Indrajit's lineal male ancestor, Ananda Mal, was a brother of Lakshmi Narayan Mal, the lineal male ancestor of Raja Kaushal Kishore. To prove that fact, the plaintiffs filed a certified copy of a decree passed in a suit of 1805 between a female ancestor of Raja Kaushal Kishor and a third person. To the said decree were attached two genealogical tables (Ex. P. 5 and P. 6). The decree recited that those two pedigrees had been filed by both the parties to the suit. If that statement in the decree was admissible in evidence, the said pedigrees would have proved the plaintiff's case on the point, for the statement of relationship as made therein would have been almost conclusive, being the statement of the Raja's ancestor. Their Lordships of the Judicial Committee held that the statement in the decree that the pedigree had been filed by the parties to that suit was admissible under s. 35 of the Evidence Act. That statement of the Judge in the decree was regarded as an entry in a public record made by a public servant—the Judge—in the discharge of his official duty. The entry in the order-sheet by the certificate-officer would, therefore, be admissible under s. 35 of the Evidence Act. If the statement made therein be of a fact in issue or of a relevant fact. The fact in issue in the case before us is whether the notices under s. 7 of the Public Demands Recovery Act had been served on five of the certificate-debtors and the entry in the order-sheet is that they had been served. The entry, therefore, is evidence of the fact of service of notice. It is no doubt only an item of evidence. But whether from that item of direct evidence the Court would be justified in holding that the fact of the service of the notices had been sufficiently proved would depend upon the facts and circumstances of the particular case. In the case before us there is the fact that in the certificate-proceedings plaintiff No. 5 appeared many times, both before and after the certificate-sale. He is interested in many mouzâs of the touzi and the other plaintiffs are his near relations and dependants. He is the principal figure. To explain his appearance in the certificate-proceedings he says, in his deposition, that he did not appear because the notice under s. 7 had been served on him, but because he got information of those proceedings from a person while he was travelling in a train. In view of the many false statements he made both in his deposition and in his petitions before the certificate-officer made under s. 23 of the Act for setting aside the certificate-sale, we cannot accept his explanation. We hold that he came to know of the certificate-proceedings from the notice that had been served on him. It is proved that the other plaintiffs resided in the same house with him at the time of the service of the said notice on him. It is, therefore, impossible to believe that the peon would serve the notice on him alone and would leave unserved the notices on the other plaintiffs then living in the same house with plaintiff No. 5 and on whom notices had been issued at the same time as the notice on plaintiff No. 5. Taking into consideration the entry in the order-sheet of the certificate case along with these facts we hold that the notice under s. 7 of the Act had in fact been served on all the plaintiffs except No. 2. In our judgment, there is no presumption under s. 114 of the Evidence Act that a notice had in fact been served, but when the fact of service of the notice is proved there would be a presumption under that section about the regularity of the service, namely, that at the time of the service all the formalities required by the rules framed under the Public Demands Recovery Act, namely, rules 2 to 8 of Sch. II, had been observed. This in our judgment is the effect of the decision of the Judicial Committee in the case of Mohammad Akbar Khan v. Musharaf Shah. We, accordingly, hold that notice under s. 7 of the Public Demands Recovery Act had been duly served on all the plaintiffs except on plaintiff No. 2. The certificate-sale of the mouzâs mentioned in Schs. ka, ga, gha and umâ annexed to the plaint must therefore stand.

The sale of the mouzâs described in Sch. umâ cannot be set aside on the additional ground, that plaintiff No. 5 not only appeared in the certificate-proceedings, but also because he filed applications under s. 22 and s. 23 of the Public Demands Recovery Act.

The result is that this appeal is allowed in part. The decree of the learned Subordinate Judge, so far it has set aside the certificate-sale of the mouzâs described in Schs. ka, ga, and gha annexed to the plaint is set aside and the plaintiffs' suit in respect thereto is dismissed with proportionate costs throughout against plaintiffs Nos. 1, 3, 4 and 5 and in favour of the Bank. Hearing fee five gold mohurs. The said decree, in so far as it has set aside the certificate-sale of the mouzâ described in Sch. kha, is affirmed. Plaintiff No. 2 would get the costs of the lower Court against the Bank proportionate to the value of the said mouza. As the Bank did not press its appeal against plaintiff No. 2, the Bank and plaintiff No. 2 would bear their respective costs in this Court.

In the view we have taken it is not necessary to consider the application of the Bank for permission to adduce additional evidence in this Court.

Appeal allowed in part.

N.C.C