1. This is a second appeal by Mt. Parbati whose suit for ejectment and damages in the revenue Court has been dismissed by both the Courts below, and her second appeal has been referred to a Bench of two Judges. The case is very simple. Mt. Parbati sued under Section 44, Agra Tenancy Act, for the ejectment of her step-son Gajraj Singh the sole defendant, from certain plots in a village claiming that the plaintiff had been a proprietor and had been in possession and that the defendant had recently entered into possession of the plots without her consent. The plaintiff is the second wife of Thakur Drigpal Singh, and the defendant is the son of Thakur Drigpal Singh by his first wife. There was a sale deed by which property was purchased in the name of the plaintiff, and the argument for the defence was that this purchase was made by Drigpal Singh with funds of the joint family and that the name of the plaintiff was merely entered farzi for her consolation. The appellant relies on the judgment in a Suit No. 43 of 1929 in the Court of the Subordinate Judge as res judicata. In that suit Drigpal Singh sued for a declaration that he was the owner of the property in suit. Mt. Parbati was defendant and she denied the title of her husband. The suit was eventually dismissed, the judgment noting that Drigpal Singh did not prosecute the case and did not produce evidence. Now the defendant Gajraj Singh was not a party to that suit and the Courts below have held that the judgment in that suit was collusive between Drigpal Singh and his wife and that at the time that case was going on, Drigpal Singh was standing his trial for murder and that his wife came to an agreement with Drigpal Singh that if she abstained from giving evidence against him on the charge of murder in the criminal Courts he would allow this Suit No. 43 of 1929 to be dismissed. Learned Counsel claims for the appellant that nevertheless the judgment would be res judicata under Section 11. In the first place it is always open to any party to show that a judgment was obtained by I fraud Or collusion or that there was want of jurisdiction and in such cases we are of opinion that Section 11 would not apply.
2. Further, for Section 11 it is necessary that the issue should arise in a former suit between the same parties or between parties under whom they or any of them claim. Now it is true that Mt. Parbati was a party in the former suit, but the defendant Gajraj Singh was not. Learned Counsel argues that because Drigpal Singh was a party, therefore Gajraj Singh must be bound by the decision in the former suit. It is true that if Gajraj Singh had inherited property from his father Drigpal Singh he might be said to have claimed through him. But the present case was very different. That suit was brought in 1929 and the present suit was brought in 1932 and Gajraj Singh is not stated to be a minor. He was therefore clearly alive in 1929 and a member of a joint Hindu family along with his father. He cannot therefore, as a member of a joint Hindu family, be said in any way to claim through his father or to derive title through his father or through his father as manager of a joint Hindu family. Accordingly we are of opinion that the wording of Section 11, Civil P.C., will not cover the present suit. In Lingangowda Dod-Basangowda Patil v. Basangowda Patil it was held no doubt that in the case of a joint Hindu family it was impossible to allow each member of the family to litigate the same point over and over again and Section 11, Expln. (6) applies. But such would not be the case in the present suit where there is a finding of the Court below that there was collusion of the father. The pleading of the appellant is that the existence of the decree in Suit No, 43 of 1929 bars the present defence. Such a judgment would be relevant under the provisions of the Evidence Act, Section 40. But Section 44 provides that any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant under Sections 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion. The meaning of this section is that if collusion is proved then the judgment cannot act as a bar. For these reasons we dismiss this second appeal by Mt. Parbati with costs.