1. In the suit out of which this appeal arises, the plaintiff, who is the respondent in the appeal, prayed for a decree, declaring that the plaintiff and the co-sharer defendants had nim-howla right in the disputed lands specified in the Schedule Kha, and that they had a right to realize rent from tenants under them. The conclusion of the Court as regards the contention is that he cannot hold that the lands in suit appertain to the nim-howla of the plaintiff and defendants Nos. 2 to 7 and the settlement records show that they do not appertain to the nim-howla. The Court then says that the presumptive value of these records is considerable, and, therefore, the Court decides this point in favour of the then appellants to this extent, that the lands in suit do not appertain to the nim-howla of the plaintiff and defendants Nos. 2 to 7. This is the subject-matter of the cross-objection before us. I think the cross-objection fails on the ground that the conclusion is one of fact, and it has not been established before us that in coming to that conclusion the learned Judge was under any misapprehension or error of law. The cross-objection must, therefore, be dismissed.
2. The second prayer was that the Court should set aside the rent-decree in Suit No. 1473 of 1909 obtained by defendant No. 1 and the auction-sale held on the 4th November, 1911, in execution of the decree in Suit No. 567 of 1911 declaring that the same were invalid and inoperative.
3. A question that has arisen in this appeal is as to whether or not the lower appellate Court has come to a sufficiently clear finding as regards the alleged fraud so that the proceedings referred to can be set aside on that ground. The contention of the appellants has been that the facts found by the lower appellate Court do not constitute fraud, and if that point is established then the case of the appellants is that no suit will lie to set aside the decree. It has also been argued that the fraud which has been found by the lower appellate Court is not that which was made the ground of attack in the plaint, and that there was no fraud or suppression of service of notice.
4. In my opinion, the appeal must be remanded for a re-hearing upon this particular question, namely, the question of alleged fraud, because the findings of the Court are, in my opinion, insufficient. In the first place it is to be observed that the mere fact that notice was not served is not necessarily fraud. If, on the other hand, it is shown that there was any deliberate suppression of notice particularly in order to give effect to any scheme such as that alleged, then such suppression of notice would be clearly fraud. Further, it is not necessarily fraud on the part of any person to put forward a claim which is in fact unfounded in law. A person may make a claim to which he is not entitled and his conduct is not fraudulent merely on that ground: It must be found that there were circumstances which establish that the over claim, if there be one, was made with knowledge and for a fraudulent purpose. The learned Judge, to whom the case is remanded for re-hearing in appeal, must find definitely whether there was or was not fraud committed in respect of the rent-decree as regards non-service of notice, the claim made or otherwise. He should find the facts and state the facts upon which reliance is placed for the purpose of finding fraud if he so finds, in order that this Court as a Court of second appeal, whilst accepting his findings of fact, can judge whether those facts constitute in law fraud or not. He must further state his reasons for the conclusion at which he arrives.
5. The judgment and decree upon this point is, therefore, reversed and the case is remitted to the lower appellate Court for re-hearing upon this issue of fraud.
6. The costs of the hearing of this appeal before us will abide the result of the decision on remand. The cross-objection is limited to a very small point. It is not necessary to make an y order as regards costs of the cross-objection.
7. I agree.