Hare Krishna Sen v. Umesh Chandra Dutt

Dawson Miller, C.J:— This appeal has been referred to a Full Bench for a decision upon two points, (1) whether the plaintiff's suit is barred by Order II, rule 2 of the CPC and (2) whether it is barred by S. 11 of the Santal Parganas Regulation, III of 1872. The suit was instituted by the appellant on the 23rd January, 1918, before the Subordinate Judge of Pakur claiming a declaration of title to the entire 16-annas share in 107 bighas and some odd kattahas of land in certain mauzas situate in the Santal Parganas and for recovery of possession of an 8-annas share in the same property formerly in the possession of the lata Brajeswari Dasi, the plaintiff's step-mother, and now in the possession of the defendants, and for a declaration that neither the said Brajeswari Dasi nor the defendants have any right or title to the same.

2. The property in suit originally belonged to the plaintiff's father, Sonatan Sen, who died in the year 1900. Sonatan had two wives. The first, Brajeswari Dasi, survived him and subsequently died in the year 1913 leaving the defendants, her daughter's sons, as her heirs and successors in interest. The second wife, Nritiya Sakhi Dasi, predeceased her husband leaving a son, the present plaintiff, who was a small child at the time of his father's death. After the death of Sonatan the Settlement operations of 1904-5 took place in the district and the property in suit was recorded in the Survey khatian in the joint names of Brajeswari and the plaintiff it is alleged by the plaintiff in his plaint that after his father's death, he being a child of tender years, was brought up by Brajeswari, living in the same house with bar, and that she acted as his de facto guardian, but in betrayal of her position of trust fraudulently and dishonestly caused the land in suit to be entered in the Survey record as their joint property when in fact the plaintiff alone was entitled to the property as his father's heir.

3. In the year 1909 the plaintiff's father-in-law, Kunja Behari Laha, applied to the Court of the Deputy Commissioner and was appointed guardian of the plaintiff's person and property he being still a minor. At that time his step-mother Brajaswarl was openly claiming a half-interest in the property as her own disputes arose between them; and in January, 1911, a title suit No. 1 of 1911 was instituted before the Subordinate Judge of Pakur in the plaintiff's name through his next friend and guardian, Kuni Behari against Brajaswari, claiming title to, and confirmation of possession over the lands now in snit. In that suit, Brajeswari relied in the record of right and, further, Impugned the ??? of the plaintiff who according to her case, had not been brought up under her care but under that of his maternal uncle with whom he had and in collation with whom he fraudulently caused his name to be entered in the Record-of-Rights as jointly interested in the property although she was the sole heir of her husband Sonatan. In that suit the Subordinate Judge who tried the case and the Deputy Commissioner of Dumka before whom it came on appeal bald that the jurisdiction of the Civil Courts was barred by section 11 of Regulation III of 1872 and that they could not question the entry in the khatian recorded by the Settlement Officer which was final and binding on the parties but that the plaintiff's remedy if any, was to petition the Lieutenant Governor to reopen the Settlement record under Ss. 10 and 25(3) of the Regulation. The plaintiff then appealed to the High Court at Calcutta and pantos that appeal, Instituted a partition suit (No. 3 of 1911) against Brajeswari Dasi before the Subordinate Judge of Pakur. In that spit the plaintiff suing through his guardian and next friend Kunja Bahari Laha, again alleged in his plaint that Brajeswari had fraudulently brought about the entry in the Record of Rights above mentioned and referred to the suit (No. 1 of 1911) which was then pending in the High Court at Calutta on appeal. He then alleged that there is no dispute that he was entitled to at least half of the property and that for the peaceful enjoyment of both parties it was necessary that a temporary partition should be made in equal moieties pending the decision of the High Court in suit No. 1 of 1911, and praying that such partition should he made upon the terms that it should be annulled if the High Court should decide in his favour but should become permanent if his appeal should be dismissed. Brajaswari in that suit set up a new case and disputed the plaintiff's title to any portion of the lands in suit on the ground that they originally belonged, not to Sonatan Sen bar husband but, to her father one Nafar Maddi who gave them to bar son Akrur, and that the latter having died many years ago, she as his heir was solely entitled to the same. This plea however was rejected by the learned Subordinate Judge who found that the estate had belonged to Sonatan Sen and as the plaintiff was admittedly recorded at the settlement as entitled to a moiety of the pro-party be decreed the suit for partition. It does not appear from the judgment whether the partition granted was intended to be merely a temporary arrangement pending the decision of the High Court in the previous suit or whether it was intended to be permanent in any event.

4. The decree in that suit has not been put in evidence and in its absence as there is nothing in the judgment to indicate one way or the other whether the partition was intended to be a temporary or a permanent arrangement, I think it must be assumed, until the contrary is proved, that the intention of the learned Subordinate Judge was to order a partition in accordance with the terms of the prayer in the plaint, that is a partition liable to be annulled if the High Court in suit No. I of 1911 should come to a decision in favour of the plaintiff's title to the whole estate. Right issues ware framed in the partition suit, the first four being issues of law which were decided at a preliminary hearing. The first related to the court fee payable by the plaintiff and, as his possession of the half-share claimed was not admitted, the court decided that a ten-rupee stamp was not sufficient and that he must pay an advalorem fee on the value of the half bars. The second issue related to the application of section 10 of the CPC to the suit, seeing that suit No. 1 of 1811 was still pending. The issue was decided in favour of the plaintiff. The third and fourth issues which were also issues of law were given up by the defendant and decided in the plaintiff's favour. There is nothing to indicate what these issues were and for aught we know they may have related to the plaintiff's right to maintain a said for a temporary partition such as that which was claimed. Tho fifth issue decided that the plaintiff was in fact in possession of the half-share claimed, the decision being based upon the ground that the Record-of-Rights was in his favour at least to that extent. By the sixth issue it was decided that the lands formed part of the estate of Sonatan Sen. By the seventh it was determined that the plaintiff had admittedly under she Survey Record a right to halt the lands in suit. The eighth issue related to the relief, if any, that the plaintiff was entitled to. It was found that the moiety claimed should be partitioned and the plaintiff installed in possession. The judgment in that suit was delivered on the 21st November, 1911.

5. The appeal to the High Court at Calcutta in suit No. 1 of 1911 came up for hearing on the 26th Augusu, 1914. As it had already been decided in the partition suit between the same parties that the land in suit had belonged to the estate of Sonatan Sen the plaintiffs contended that even if the Record-of-Rights should be binding and final he would succeed to the 8-annas share recorded in the name of Brajeswari upon her death as the heir of his father, Sonatan been, and that the question in dispute in that appeal had ceased to be of vital importance. In these circumstances the learned judges of the Calcutta High Court disposed of the appeal by the following order:—

“Under the circumstance of this case we think that the best course is to allow the plaintiff to withdraw the suit with liberty to bring a fresh suit on the same cause of action or any farther cause of action which may have accused in his favour, or upon both. The respondents have been brought on the record at the appellant of the appellant and they are entitled to their costs, one gold mobur. Let Umesh Chandra Dutta and Buchand Dutta be substituted in place of the deceased respondent for the purpose this appeal without deciding wether they are or are nos the legal heirs of the declassed.”

6. The present sun was subsequently instituted in 1918 by the plaintiff, was was then of age, against Umesh Chandra Dutta and Suchana Dulla who are shall in possession of the half-share formerly hum by Brajeswari. I have referred at some length above to the decision in the partition sun because it is contended by the defendants in the first place that in view of the decision there given the present suit is barred nadir the provisions of Older II, rule 2. It is contended that the plaintiff having elected to sue for partition of a moiety of the property intentionally relinquished a portion of his claim and should not afterwards be entitled to sue in respect of the portion kg relinquished, and, further, that as the plaintiff's cause of action entitled him to a wider relief than that claimed in the partition suit he could not afterwards be allowed to sue for the relief not claimed. The answer to the first point appears to me to be that in the partition suit the plaintiff so far from relinquishing any portion of his claim expressly asserted a claim to the whole 16 annas of the estate and as a suit was already pending on appeal before the Calcutta High Court he could not at that time sue for the same relief in another suit. What he asked for in the partition suit was merely a temporary arrangement as a modus vivendi pending the decision of the High Court as to his title to the remaining 8-annas of the property as be could not claim the whole property. There can be no question, therefore, as to his intentionally relinquishing any portion of the claim which be might assert and was then asserting in a different proceeding.

7. It was contended further that by Order II, rule 2(1), the suit should have included the whole claim which he was entitled to make in respect to the cause of action and that his cause of action was his right to succeed to the whole property and that having omitted to sue for the whole relief to which he was entitled be should not be allowed afterwards to bring a suit claiming that which he had omitted, unless he had obtained the leave of the court under Rule (2)(3) of Order II. In the ??? circumstances of this case I do not think it can be successfully contended shay Order II, rule, has any application, and, even it is should be held that the rule applies in a case where a suit for partition is ??? and a subsequent claim is put forward in another sum claiming olio whole of the property, ??? having regard to the ??? which the petition suit was ??? and the relief there claimed I think it ??? in the absence of any evidence to the contrary that the court ??? the case as one in which all questions relating to the plaintiff's claim for a ??? of ??? to the whole property were to be decided hereafter, and that what was dune was done by the leave of the court under clause (3) of rule 2.

8. It was incidentally contended that the effect of the withdrawal of suit No. 1 of 1911 was to place the parties in the same position as if no such suit had been brought and that the plaintiff could not now contend that he had not relinquished the claim, which be bad asserted in that suit, and, having sued for partition in respect is a half of the property, ought not now to be allowed to claim the whole. I agree that the effect of the withdrawal of the suit is to leave the rights of the portion undetermined in so far as they were asserted in that suit but in order to determine the real effect of the partition suit one must look at the state of affairs which actually existed in 1911, when a suit was pending as to the plaintiff's claim to the other 8-annas share of the property, and the subsequent withdrawal of the title suit with leave to institute fresh proceedings cannot in my opinion alter the effect of the partition suit in so far as it determined the rights of the parties.

9. It was also urged that the effect of the partition suit was to determine that the plaintiff was entitled only to an 8-annas share in the property and as that decision operated as res judicata the matter could not again be re-agitated between the same parties. On looking at what was arrived in the partition suit and the decision there arrived at, it is clear to my mind that no question was raised or determined as to the plaintiff's title to the remaining 8-annas share in the property. All that was there determined on the question of title was that the plaintiff was entitled to at least an 8-annas share. It is true the plaintiff's title was questioned by Brajeswari on the ground that the property was not part of the estate of Sonatan Sen but this point was decided against her and the question of the plaintiff's title to the remaining half-share was left to be determined in the suit then pending. In my opinion the answer to the first question submitted must be in the negative.

10. Regulation III of 1872 provides for making a settlement of the whole or any part of the Santal Parganas for the purpose of ascertaining and recording the various interests and rights in the lands, and gives the Lieutenant-Governor power to appoint officers to carry out the settlement and to invent them with powers of appeal and revision and to make rules for their procedure. Section 11 provides that except its provided in S. 25(a) do suit shall lie in any Civil Court regarding any matter decided by any settlement court under these rules; but the decisions and orders of the settlement courts made under these rules regarding the interests and rights above mentioned shall have the force of a decree of a court. S. 24 provides means for publishing the Record-of-Rights to the persons interested alter it is made by the Settlement Officer, and allows any person interested therein to bring forward any objection he may desire to make in the settlement courts within a period of six months from the date of publication, and such objection shall be enquired into and disposed of by a decision in writing by the officer presiding in court. By S. 25, after the expiration of six months from the date of publication, the record shall be conclusive proof of the rights and customs therein recorded except in so far as concerns entries in the record regarding which objections already taken are still pending or open to appeal. Clause (3) of S. 25 provides that when a Record-of-Rights has become final or any objection to any entry in the Record of Rights has been finally disposed of in the settlement courts and when all final decisions and orders including such as may have been passed on revision as provided in sub-section (2) have been correctly embodied therein such record shall not, until a fresh settlement is made or a new table of rates and rent rolls is prepared, be re-opened without the previous sanction of the Lieutenant-Governor, but in case of the discovery of a material error it shall be lawful for the Lieutenant-Governor to direct that the record of any village shall be revised.

11. There can be no doubt in my opinion that a record properly made under the rules provided in the Regulation was meant to be final and conclusive except as therein provided and that the jurisdiction of the Civil courts regarding any matters decided by the settlement courts should be barred, the entry in the finally published record having the force and effect of a decree of court. The result, therefore, is that the appellant's claim is met by the plea that the averment that he is entitled to the whole 16-annas upon which the claim is based is no longer open to him, the contrary having been declared by the Record of Bights which has the effect of a decree of court. The plea is in substance a plea of res judicata. It is nevertheless open to the plaintiff to reply in answer to this plea that the settlement record was obtained by fraud and if this can be proved there can be no question of res judicata. If the settlement record was in fact obtained by a fraud practised upon the settlement court there was in the eye of the law no settlement record at all upon the matter in question, and it can be treated as a nullity. Section 44 of the Evidence Act specially provides for such a case and it is not necessary that the appellant should first institute a separate suit to set aside the record on the ground of fraud. This is in accordance with the view of the Calcutta High Court in Mir Mozaffar Ali v. Kali Prosad Saha(1) and of this court in Shib Saran Shah v. Rameswar De(2) in both of which cases the effect of Regulation III of 1872 was considered. It is also established by a long series of English decisions that a

“judgment at decree obtained by fraud upon a court, binds not such court, nor any other; and its nullity upon this ground, though it has not been set aside of reversed, may be alleged in a collateral proceeding.”

[See par Willes, J. in Reg v. Saddlers' Co.(3) and the cases there cited]. The fraud alleged in the present instance is that Brajeswari being in a position of trust towards the plaintiff, then a minor under her de facto guardianship, fraudulently and dishonestly took advantage of her position by causing her own name to be entered in the Record-of-Rights as jointly interested with the plaintiff in the land in suit when in fact the plaintiff alone was the lawful heir. In my opinion the question of fraud or no fraud was one upon which the appellant was entitled to have an adjudication and the judgment and decree of the Deputy Commissioner should be set aside and the case remanded under the provisions of Order XLI, rule 23 of the CPC to the lower appellate Court with instructions to bract the Subordinate Judge to hear the evidence upon the issues of fraud left undecided and to determine the suit. It is unfortunate in this particular case that the evidence on that issue was not taken at the trial stage and the issue determined. I should like to add that the onus is upon the plaintiff to make out that a fraud was committed which realised in an incurred entry being made in and settlement record. It is not sufficient merely to prove that Brajaswari was instrumental in procuring the entry in the record. It must also be proved that what was done by her was done with the fraudulent intention of defeating the rights of the plaintiff and that the settlement officer was misled by her act and induced thereby to make an incorrect entry in the record.

12. Mullick, J.:— [After setting out facts as in the first judgment the judgment proceeded]. In there circumstances it seems to ma that the plaintiff cannot bring another suit for the recovery of the half-share which formed the subject-matter of his appeal to the High Court. A proprietor who asks a Civil court to partition his share in joint property must state the extent of his share in such property and there must be an adjudication between him and his co-sharers' as to is he extant of such share. He cannot say “Give me a partition of my half-share and leave my right to the remaining half-share undetermined for the present.” The Code of Civil Procedure does not authorize a temporary adjudication of this kind which is the very mischief against which Order II is designed to operate, and if a plaintiff asks for the temporary partition of his half-share and the court grants his prayer the law will assume that the plaintiff has relinquished his claim in respect of the remaining half. It will avail nothing to the plaintiff to say “I expressly asked the court to leave my right in respect of the other half undetermined.” A plaintiff suing for partition can no more do this than a landlord suing upon a part only of his claim for rent, and upon the same principle it was held in Maksud Ali v. Nargis Dye(4) that in a suit for recovery of tend failure to sue for relief in respect of trees standing on the land will operate as relinquishment notwithstanding an expressed intention to ask for such relief in a future suit.

13. There is also another reason why the plaintiff cannot claim a larger share now than he claimed in the partition suit. He accepted the Record-of-Rights and he cannot approbate and reprobate at the same time. The contention that he only provisionally accepted the Record-of-Rights cannot be accepted.

14. I next proceed to consider the effect of section 11 of Regulation III, 1872.

15. It is clear that the plaintiff not being entitled to sue under S. 25A of the Regulation the Civil Court by reason of S. 11 would ordinarily be debarred from entertaining the suit. [Ram Churn Singh v. Dhaturi Singh(5)]. The plaintiff, however, seeks to avoid the bar by impeaching the Settlement Officer's decree on the ground of fraud. Now Section 9 of the CPC shows that a suit will always lie in a Civil Court to set aside a decree on the ground of fraud provided there is no express or implied bar. The question is whether such a bar is contained by section 11 of the Regulation. In my opinion the answer is clearly in the affirmative, and I think that when an enactment says that no suit shall lie in any Civil Court it means that no suit shall lie on any ground whatsoever including the ground of fraud. It is difficult to see why the Legislature having for its object that questions regarding the rights of tenants in back ward tracts of country such as the Santhal Parganas should be decided by officers who have better acquaintance with the people and in accordance with a procedure designed to secure greater speed and finality, should have, by saving the jurisdiction of the Civil Court in matters of fraud, frustrated that very object. The whole scheme of the Act seems to me to lead to the conclusion that the plaintiff's proper remedy was to apply to the revenue authorities within the time prescribed by the Regulation and I think that he may still apply to the Lieutenant Governor for a revision of the entry either on the ground of fraud or any other ground. It has been held that a suit to set aside a probate on the ground of fraud lies in a Civil Court. So again has it been held that the proceedings of a Commissioner appointed to ascertain chaukidari chakeran lands under section 58 of Act VI (B.C) 1876 are, notwithstanding the provisions of section 61 of the Act, revisable by a Civil Court when fraud is alleged [Nobo Krista Mukharji v. Secretary of State(6).]

16. But it is always open to the legislature to exclude the jurisdiction of the Civil Court, and in this country the power is freely exercised. In my opinion the plain meaning of S. 11 of the Regulation is that except as provided in S. 25A no jurisdiction whatsoever is left in the Civil Courts. But the plaintiff goes further. He contends that not only does a suit lie but that as there was fraud he can regard the decision of the Settlement Officer as a nullity and can bring a suit for possession without seeking to set aside the decision. In my opinion be cannot ignore the decision. It is a decree and must be formally avoided. It is true that fraud vitiates the most solemn proceedings of a court, but that maxim is subject to the condition that if it is necessary to do so you must bring a properly constituted suit for the purpose of proving the fraud. You cannot ignore a Civil Court decree which denies your title and sue for possession upon the basis of that title so long as that decree subsists, and the authorities show that wherever a document or a decree or an adoption is immediately operative and restricts the title of the plaintiff be must sue to set aside the obstruction before be can succeed in a suit for possession.

17. In Raghbar Dayal Sahu v. Bhikya Lal Misser(7) it was held that if a Hindu widow adopts a son and makes over the property to the adopted son the reversioner of her husband must first sue to set aside the adoption, but where she does not complete the proceedings of adoption by delivery of the property but merely executes a deed under which the adopted son is to take after her death, the reversioner may at once sue for possession as the instrument executed by the widow in no way affects his rights in the property. To the same effect is the case of Annada Pershad Panja v. Prasanna Moyi Dasi(8) where a patnidar in execution of a decree for darpatni rent against the benamidar of the true dar patnidar, having purchased the darpatni interest himself and the true darpatnidar having sued for possession of the darpatni interest, it was held that a nothing movie than the interest of the benamidar himself was sold the rights of the true owner were not affected and that he need not sue to set aside the rent sale it was assumed by their Lordships of the Privy Council in this case that it would have been otherwise it the tine owner has been affected by the sale. In Petnerperma Chetty Muniandy Servai(9) a benami deed of sale was executed by a proprietor in order to defeat an equitable mortgage. The proprietor subsequently sued the benamidar for the recovery of his property and it was held that the deed being collusive was inoperative against the plaintiff; that it was not necessary for him to bring a suit to set aside the deed and that Article 144 and not Article 95 of the Limitation Act of 1877 was applicable to the suit.

18. These cases merely reassure the rule accepted in Jagdamba Chaodhrani v. Dakkina Mohun Roy(10). There it was held that it was open to the plaintiff to sue for possession if he could do so without in any way disturbing the adoption set up by the defendant but that it was otherwise in the case of an heir who could not get at his ancestor's property without disturbance of title and possession founded on an alleged adoption to that ancestor. It is true that in Chunder Nath Chowdhry v. Tirthanand Thakur(11) it was observed by their Lordships of the Calcutta High Court that Article 95. Schedule 2 of Act 9 of 1871 is not intended to apply to suits for possession of immovable property when fraud is merely a part of the machinery by which the defendant has kept the plaintiff out of possession and that Article has reference only to cases where a party has been fraudulently induced to enter into some transaction, execute some deed or do some other act, and desires to be relieved from the consequences of such act. But in that case the defendant who was a joint proprietor with the plaintiff purposely defaulted in payment of Government revenue and then bought the property himself through a benamidar; the plaintiff sought to have the property reconveyed; and it was not necessary for him to ask to set aside the sale on the ground of fraud. Article 95 of the Limitation Act, therefore, did not apply and he was allowed the usual period of limitation for recovery of possession, namely 12 years from the date upon which his right accrued.

19. In Kusum Kumari Roy v. Satya Ranjan Dass(12), the plaintiff brought a suit for administration and for the construction of a Will. In his plaint he stated that he had been informed that the widow of the testator had purported to take in adoption a son, but that he had been advised that such adoption was absolutely invalid and did not operate to pass any title to the adopted son. The court held that it was necessary for the plaintiff to dispute both the fact and the validity of the adoption and that she could not proceed with the suit without amending her plaint. To the same effect is Malkharjun v. Narahari(13), where their Lordships of the Privy Council held that a party seeking relief inconsistent with a sale previously held with jurisdiction must first pray to set it aside and that Article 12A of the Act of 1877 is not confined only to suits which seek no relief other than a declaration that a sale ought to be set aside but applies also to suits whore other relief is sought which can only be granted on an annulment of the sale. The authority of this case is in no way questioned by their Lordships in the later case of Kheraj v. Mull Daim(14). There it was held that where a mortgagee's property was sold, he being a party neither to the decree nor the sale proceedings, he was entitled to redeem without seeking to set aside the decree and the sale because these proceedings were held without jurisdiction and ware nullities; but whereas in the case before us a decree was passed with jurisdiction and in the presence of the plaintiffs the decree is voidable upon proof of fraud and can only be avoided by a suit brought for that purpose. If the plaintiff were allowed to ignore the decree it is difficult to see with what object Article 95 of the Limitation Act of 1908 could have been enacted.

20. But then the plaintiff refers to Rajib Panda v. Lakhan Sendh Mahapatra(15). In that case the plaintiff brought a suit for khas possession on the basis of a decree made on compromise in a previous suit between him and the defendant. The defendant pleaded that the decree was a fraudulent one. It was held that under Section 44 of the Indian Evidence Act he was entitled to adduce evidence of fraud. I agree that it was no's necessary under the circumstances for the defendant to bring a suit to set ??? the decree? for the Limitation Act does not affect defendants. It would have been otherwise if the plaintiff had been the party whose rights had been restricted by the decree. Section 44 of the Evidence Act is merely a rule of evidence: it cannot absolve the plaintiff from obedience to the rules of pleading aud of the Limitation Act. The defendant is entitled to say to the plaintiff the decree may be void after you have proved fraud, but in order to prove it you must bring a properly constituted suit.”

21. The plaintiff next relies on Kangal Chandra Mandal v. Madhu Sudan Mandal(16). In that case the plaintiff, a reversioner to his maternal grandfather, sued for declaration of title and recovery of possession of certain property in respect of which the Settlement Officer acting under Regulation III of 1872 had recorded the defendant No. 1 as the proprietor of these lands. The defendant pleaded Ss. 11 and 25 of the Regulation in bar, but their Lordships of the Calcutta High Court decided against that plea on the ground that at the time the entry was made the plaintiff had no more than a contingent interest, and that as he was not claiming through any person who was bound by the decree of the Settlement Officer, the decree was not operative against him. This case, therefore, does not conflict with she views expressed in the cases above cited.

22. There are three cases, however, which are direct authority in favour of the plaintiff. The first is Nadiar Chand v. Chandra Sekhar(17), the second is Mir Mozaffar Ali v. Kali Proshad Saha, and the third is Sahib Saran Shah v. Rameswar De, appeal from appellate decree No. 1507 of 1918 of this court.

23. As to the first it is to be observed that it was decided in the year 1888 and that S. 25 of the Santal Parganas Regulation at that time differed materially from Ss. 25 and 25A of the present Regulation which were enacted in the year 1908. Bath the first and the second cases, however, decide that it is open to a plaintiff to ignore the settlement and to sue for possession. The third case decides that when fraud is alleged the Civil Court has jurisdiction to entertain suit to set aside the Record-of-Rights. With the greatest respect I venture to think that S. 11 bars a suit altogether and that, in any case if a suit does lie, it must be framed as a suit to set aside a decree.

24. It is to be noted that in the second of these cases it was decided by their Lordships that the onus of proving that the entry was made after due publication was upon the defendant, but it is now admitted before us that this view cannot be supported and that the ordinary presumption that everything has been done correctly by the Settlement Officer must apply. Indeed it was held in Janak Prasad v. Babu Lal Jha(18) that the Santal Parganas Regulation makes the Record-of-Rights conclusive proof of the rights and interests therein recorded and that a party relying upon it cannot be called upon to prove in the first instance the service of the required notices. The learned Vakil for the appellant before us now admits that he cannot take this objection to the record.

25. There is yet another defect in the suit. Order VI rule 4 of the CPC requires that particulars of fraud shall be given in the plaint. A general averment that the Survey entry was obtained by fraud will not suffice, and if authorities are needed I would refer only to Ganga Narayan Gupta v. Tiluck Ram Chowdhry(19). The plaintiff must state whether the fraud was committed by the Settlement Officer or by the predecessor of the defendants and in either case be must give further and better particulars. We do not know whether Brajeswari adduced any evidence before the Settlement Officer, and for all that we know it may be that notwithstanding anything that was said or done by Brajeswari, the Settlement Officer came to an honest and independent conclusion that Brajeswari was entitled in her own right to half the property as absolute owner. The plaint, therefore, is defective and should have been rejected.

26. Before the learned District Judge a further point was argued, namely, whether, assuming that Brajaswari was only in possession of a Hindu widow's estate, the plaintiff was the preferential heir as against the defendants. Upon this point it is now admitted that the learned Judge's decision it favour of the defendants who are the daughter's son of Brajaswari must prevail as against the plaintiff, who is the son by another wife of her husband. Moreover, this point, as was observed by the learned Subordinate Judge, does not arise out of the pleadings, and the plaintiff ought not to have been allowed to take it before the District Judge. The result is that the appeal should in my opinion be dismissed with costs.

27. Bucknill, J.:— This matter which in the first instance came up for hearing before Mullick, J. and myself, was an appeal from the decision of the District Judge of Dumka, dated the 14th September, 1918, affirming a decision of the Subordinate Judge of Pakur given on the 25th June of the same year.

28. The (acts, so far as they were material, did not appear to be complicated but two somewhat difficult questions of law were raised which it was thought advisable to refer to a Full Bench. What these two points are can at once be appreciated from the following short statement of the position. [Then the judgment stated acts and proceeded]. It having been now explained what is the nature of the points upon which reference has been made to this Full Bench it is necessary to examine them more closely; and I will deal first with the question as to whether the plaintiff's suit was not maintainable in view of the Sonthal Parganas Regulation (3 of 1872).

29. I may preface my observations upon this point by stating that it has been strongly urged upon this court that the obvious intention of the Legislature when dealing with, to quote the phasing of the preamble of Act XXXVII of 1855, “the uncivilized race of people called Sonthals” was to remove them from the operation of the general laws and to place them under legal incidences suitable to their somewhat primitive degree of culture. I fully appreciate this undoubted fact but need hardly say that the function of a Court of Law is to construe an enactment according to its phraseology.

30. Now the Regulation of 1872 is a comprehensive code of procedure; by S. 11 it lays down that

“Except as provided in section 25A no suit shall lie in any Civil Court regarding any matter decided by any Settlement Court under these rules but the decisions and orders of the Settlement courts made under these rules, regarding the interests and rights above mentioned, shall have the force of a decree of court.”

31. S. 24 is also not unimportant. It provides that, after the making of the Record of Rights and its publication in the manner prescribed, a period of six months is given during which any person interested may bring forward any objection which he may desire to make to any part of the record.

32. S. 25A which is referred to in S. 11 gives power to certain proprietors in certain circumstances to bring a Civil Suit in certain courts to contest the finding or record of the Settlement Officer within three years from the date of the publication of the Record-of-Rights; but this section is not in this case material as the parties here do not fall within those cate-gores of persons to whom alone the section is applicable.

33. S. 25 prescribes that after the expiration of the period of six months contemplated in section 24, the record shall be conclusive proof of the rights and customs therein recorded with the exception of certain cases and subject to certain investigations which are not here applicable but in sub-S. (3) there is a proviso that in the case of the discovery of “material error” (whatever that may mean) it shall be lawful for the Lieutenant-Governor to direct that the record of any village shall be revised.

34. No question arises in this case as to the finality of the Record-of-Rights in which the plaintiff and Brojaswari were recorded as joint owners of the property except as to whether in view of section 11 it is still open to the plaintiff to bring a suit for a declaration of title and recovery of possession on the ground that the Settlement Officer's decision was obtained by Brojeswari's fraud. S. 11 says

“No suit shall lie in any Civil Court regarding any matter decided by any Settlement Court under these rules”.

35. Now what does that mean? The next sentence shows. The Regulation goes on

“But the decisions and orders of the Settlement Courts shall have the force of a decree of court”

36. That is all and it seems to me that what is meant is simply that the decision of the Settlement Officer is to be regarded as a decree of a Civil Court. If, subject to what I have to say with regard to fraud, an attempt were to be made to open in a Civil Court a matter already decided in a Settlement Court the plea of res judicata would be at once an effective answer. But it is interesting to observe the aspect with which this section was regarded in the Subordinate Courts. In Suit No. 1 to 1911 Mr. Heard the Subordinate Judge of Pakur says

“Really the whole thing it an oft-told tale here and the present suit seems to me yet another attempt to get a Civil Court to meddle with a Settlement finding and entry;……this suit………is clearly shut out by Ss. 11, 25 and 25A…No ordinary Civil Court can meddle with the matter at all or touch the burden with one of its fingers………A mere averment of fraud obviously cannot confer on a Subordinate Judge a jurisdiction he does not otherwise possess to intrude in that an already decided in Settlement Courts.

37. The District Judge Mr. Allanson wrote,

“It is extraordinary how, despite the very clear provisions of Ss. 11 and 25………litigants again and again institute cases to contest the correctness of the Settlement Record. This Court has gala and again held that such suite do not lie. S. 25(3) clearly provides a means of redress if there had been a material error (e.g due to fraud) in the Settlement record.

38. In this salt the Subordinate Judge, Shahabuddin Khan, thought that the only proceeding open to the plaintiff was through section 25, sub-section (3); and the Deputy Commissioner, Mr. Tanner, was of the same opinion.

39. But if as I read section 11 it does no more than give the decision of the Settlement Court the force of a Civil Court decree such decision owns only such legal incidences as are attached to a Civil Court decree and one of those incidences is that if a decree has been obtained by fraud it is a nullity; or in other words the decree has no existence. Nor is the position of the decision of a Settlement Court materially strengthened intrinsically by any declaration such as is found in S. 25 to the affect that it is “conclusive proof” of the rights and customs therein recorded; for so too in the same sense is a decree of a Civil Court. It is suggested however that, as by S. 25, sub-section (3), an avenue is still held open for a rectification of a “material error”, that provision in some way—I am not very clear however—prevents the ordinary legal incidences being attached to the decision of a Settlement Court; but although it is true that this path might be followed in many cases where S. 11 would undoubtedly bar a Civil suit I do not understand how, beyond offering a greater scope for alteration than would be possible in the case of a Civil Court decree, and perhaps in the case of fraud, a choice of remedy not available to the ordinary litigant, it can be contemplated that a permission to approach the Chief Executive Officer can in any way be regarded as per se ousting the jurisdiction of the Civil Courts.

40. If then the decision of the Settlement Court is to be recognised as a decree of a Civil Court there is no question but that if obtained by fraud it is a nullity; nor is it open to doubt that it is not necessary where fraud is alleged to bring any action to set aside the decision before commencing a suit in claim of a right wrongfully affected by the fraudulently obtained decision.

41. For these propositions I think the case of Reg v. Saddler's Coy is alone ample authority where it is clearly stated, as quoted by the learned Chief Justice in his decision on this case “a judgment or decree obtained by fraud upon a court binds not such court nor any other; and its nullity upon this ground though it has not been set aside or reversed may be alleged in a collateral proceeding.”

42. But indeed this very question as to the effect of S. 11 of the Sonthal Parganas Regulation, 1872, has already been considered on more than one occasion and I find that the view which I hold is supported by a no means negligible series of decisions. In the case of Kangal Chandra Mandal v. Madhu Sudan Mandal beard in Calcutta on appeal before Stephen and Mookerjee, JJ., section 11 of the Sontbal Parganas Settlement Regulation became under consideration. In that case it was held that a person, who at the date of the Settlement had no more interest than that of a contingent reversioner, is not, when his interest matures, debarred from questioning the validity of the Settlement record on the ground that owing to collusion between other parties (through whom he does not claim) at the date of the Settlement the party from whom his reversionary interest came was excluded wrong fully from being recorded on the settlement record. The facts alleged were simple enough. One Gobardhone Mandal owned the property in question; he had two wives Gobinda and Durgamoni; the former he three daughters Raimoni, Brajomoni an Mandakini; the plaintiff was the son of Raimoni: the first three defendants were sons of Mandakini and the fourth defend act the son of Brajomoni. The Settlemen took place in 1877; presumably after Gobardhone Mandal's death. The plaintiff alleged that by collusion between the widow Durgamoni, and the first defendant the latter got himself recorded on the record as proprietor. The plaintiff brought a suit for declaration of title and recovery of possession of a certain share in the pro-party and it was held that he could do so.

43. It is, however, appositely pointed out that in that action the plaintiff, who at the date of the entry in the Record-of-Bights had merely a contingent interest, was not a party to the Settlement proceedings and therefore not bound by them; but it may be recollected that in the matter now before us the plaintiff was at the date of the alleged fraud at the time of the Settlement a mere child and was there only represented by the person who is alleged to have acted fraudulently and that as soon as he received an independent guardian the question of fraud was immediately raised on his behalf; but see as to the effect of minority in normal cases Januki Persad Jha v. Babu Lal Jha.

44. However, the matter was taken further in the case of Mir Mozaffer Ali v. Kali Prosad Saha, heard on appeal in Calcutta before Mookerjee and Beachorott, JJ., when section 11 of the Sonthal Pergannas, Regulation again came under consideration. The plaintiffs in this case alleged (they were suing the defendants for rent) that they were not aware, until the suit, of the entry to their detriment in the Settlement record and that this absence of knowledge was due to the fraudulent action of the defendants who had concealed from them (the plaintiffs) the fact of the record having been made in their (the defendants) favour. The court in its judgment referred to decisions (quoted on page 273) which established the view that it a defendant in a suit pleads the Record-of-Bights as a bar to the suit he raises in essence a plea of res judicata and that it is obligatory upon him be show the circumstances under which the decree uas made and to prove that it does operate as res judicata. This was probably not altogether correct but the court then proceeded to state that when me defendant has thus proved that the requirements of the statute have been fulfilled it then becomes open to the plaintiffs to urge under Section 44 of the Indian Evidence Act that the entry was obtained by fraud.

45. The court, therefore, held that there must be a full enquiry into the matter one of the subjects of such enquiry being is to whether the entry in the Record-of-Rights was in fact obtained by fraud as alleged by the plaintiffs. In other words the court held that in a case where fraud is alleged section 11 of the Regulation does not bar a Civil Suit which would or might have the effect of disputing the accuracy of the Record-of-Rights.

46. In the case of Shib Saran Shah v. Rameswar De, decided in 1918 in this court on second appeal by Adami and Das, JJ. the matter was once more dealt with. In that case the defendants had mortgaged in 1808 a part of their interest in certain property to one Gulab Marwari; he obtained a mortgage decree and at the sale the plaintiff purchased the property. The record of the Settlement was published in 1904 and in the record the defendants were entered as exclusive owners. On the plaintiff endeavouring to take possession he was resisted by the defendants who alleged that the Record-of-Rights showed them as exclusive owners; the plaintiff in 1909 instituted a suit to obtain possession of the property and the defence was based on section 11 of the Regulation.

47. The plaintiff, of course, alleged fraud on the part of the defendants.

48. In the course of the judgment of the court delivered by Adami, J., he says:—

“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 Code of Civil Procedure or otherwise and it 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.”

49. The matter was therefore referred back. Even it my own opinion had not been in accord with the trend of the above cases I should have felt reluctant to come to a decision contrary to their tenor. It is, however, suggested here that where fraud is alleged particulars must be given in the plaint and that in this case the particulars given are inadequate. I am not prepared to say that they are insufficient. If in fact, as is alleged, Brojeswari did, whilst in a fiduciary position towards the plaintiff and with a view of depriving him in favour of herself and her own children of his rights, persuade the Settlement Officer by some false story as has already been exposed as to the property, or rather part of it coming to her through her father, to place her name on the Record she was undoubtedly guilty of fraud I think that the particulars given in S. 7 of the plaint are sufficient to justify the enquiry sought.

50. I now pass to the second point referred for the consideration of this Bench. It is, how far if at all the previous suit No. 3 of 1911 acts as a bar to the maintenance of the present action? What is contended by the defendants is that, in view of the provisions of Order II, rule 2, of the First Schedule to the Code of Civil Procedure, the plaintiff's Partition Suit No. 3 of 1911 prevents him from bringing the present action. I think that it is desirable here to look at the terms of the Order passed by the High Court of Calcutta in the appeal in the first suit brought by the plaintiff (No. 1 of 1911.) It was made on August 26th 1914, and reads—

“Under the circumstances of the case we think that the best course is to allow the plaintiff to withdraw the suit with liberty to bring a fresh suit on the same cause of action or any further cause of action that may have accrued in his favour or upon both. The respondents (i.e, the present defendants in this suit) have been brought on the record at the instance of the appellant and they are entitled to their costs one gold mohur. Let Umesh Chandra Dutt and Suchand Dutt be substituted in place of the deceased respondent for the purpose of this appeal without deciding whether they are or are not legal heirs of the deceased”

51. Now what were the “circumstances” mentioned? One was the death of Brajeswari and the other was the decision (not appealed from) of the Subordinate Judge of Pakur in Suit No. 3 of 1911 that the property all had belonged to Sonatan Sen; as a result of that decision plaintiff considered himself in law the heir to the half of the property held by Brojeswari in preference to her daughter's sons.

52. But though plaintiff was thus definitely given leave to bring a fresh action and though no doubt—and it was not contended to the contrary before this Court—in view of such permission suit 1 of 1911 could not be regarded as forming any bar by way of res judicata to the present suit, I do not thins: that order of the High Court of Calcutta affected materially the effect, if any, on the present suit of the proceedings in Suit 3 of 1911, and this notwithstanding the fact that what had taken place in Suit 3 of 1911 mut have been placed before the High Court. The bearing of Suit 3 of 1911 on the present suit must, therefore, be considered separately though its effect is not strengthened by the withdrawal of Suit 1 of 1911 in view of the permission granted to start anew. [O. 2, R. 2 quoted here]. Now the circumstances under which Suit No. 3 of 1911 was brought were peculiar. The plaintiff's guardian had brought Suit No. 1 of 1911 in which he had claimed the whole of the property. The Subordinate Judge in dismissing his claim to the whole on the technical grounds of the bar by the Sonthal Parganas Regulation expressed the view that the plaintiff was clearly under the Record-of-Rights entitled to half the property. So too did the District Judge. The plaintiff had appealed. But the guardian apprehended that even with a clear statement of his right to the undivided moiety of the property he would not have any peaceable enjoyment of any of it. There had already in 1909 been serious difficulties between himself and Brojeswari which had culminated in a Miscellaneous Judicial proceeding in that year before the Court of the Sub-Divisional Officer of Pakur (Case No. 43 of 1909) as a result of which Brojeswari was. In order to avoid a breach of the peace, permitted to out the crops on condition of giving substantial security. Realizing I assume that a lengthy period must elapse before his appeal could disposed of, the plaintiff's guardian commenced Suit No. 3 of 1911. Now it is very clear from the plaint how the plaintiff framed his suit and for what he asked. I was a suit for what I must call an interim partition. The plaint recites what the plaintiff alleged that Brojeswari had don and then in clear and unmistakable language why, pending the result of the appear in Suit No. 1 of 1911, it was necessary to the convenience and peaceful enjoyment of both the parties that the property should be divided up into two equal share one for the plaintiff and one for the defendant; each party would quietly occupy their allotted moiety until the result of the appeal; if the appeal was decided in favour of the defendant then this temporary partition would become a permanent one. No thing could have been more explicit.

53. Now it is said that there is no such thing known as a temporary partition of land. I do not know why there should not be and no authority was produced to such a proposition. It seems to me ??? to imagine cases such as this in which a temporary partition might well be ??? great utility. It may have been ??? and it is possible that it was unnecessary ??? and that the plaintiff's rights would have been safeguarded ad interim better in other ways; but at any rate what the plaintiff asked for was apparently granted. The order of the Court is not before us but the plaint and decision are. It may well be that as Brojeswari in the suit claimed all the property as her own devolving upon her through her father, the plaintiff, therefore, had to fight again on new ground a battle for his half-share, but that in no way affects the character of his claim. No question of res judicata can arise from the litigation having assumed that form.

54. I cannot myself see how Order II, rule 2, can have any application in this case. The claim in Suit 3 of 1911 included the whole of the claim made by the plaintiff which was for a temporary partition of the land pending the appeal in his other action. He certainly did not omit to sue for any portion of his claim, as be had already done so in Suit 1 of 1911; he most certainly never intentionally relinquished any part of his claim but on the other band was at the utmost pains to show that be desired not to do so; he placed his position most clearly before the Court. Whatever was done must at the worst be taken to have been done with the court's leave.

55. For the above reasons, therefore, I am of the opinion that the appeal should be allowed and I agree with the order as to remand indicated by the learned Chief Justice.

56. Case remanded.