Tudball and Muhammad Rafiq, JJ.
1. This appeal arises out of the following facts: The plaintiffs, who are the appellants before us, came into Court alleging that they and the defendants first party were joint owners of a certain fixed rate tenure; that the defendants first party alone were recorded in Government papers as the owners thereof; that on the 30th of June, 1906, the defendants first party transferred their half share in the property to the defendants third party; that on the 15th of March, 1909, the plaintiff brought a, suit for a declaration of their right to a half share in the holding, impleading the defendants first party. Two days after the institution of that suit, that is, on the 17th of March, 1909, the defendants first party transferred the remaining half of the holding to the predecessor in title of the defendants second party, . That suit was decided ex parte on the 27th of May, 1909. The plaintiffs then attempted, in the Revenue Court, to have their, names recorded, but failed. They thereupon brought the. present suit for joint possession of the property against all three sets of defendants. The court of first instance 'dismissed their suit in respect to half of the property, that is, that half that had been sold on the 30th of June, 1906; but it gave them a decree for joint possession of the other half of the property. The plaintiffs were satisfied with this decree, but the defendants second party appealed. The appellate court upheld the decree of the first court. The defendants second party then came to this Court on second appeal. The learned Judge of this Court first remitted two issues as follows: First, ' whether, independently of the decree of 1909, the plaintiffs have proved any title to the land in dispute;' secondly, ' whether the plaintiffs have proved possession within limitation.' These two issues went (I) (1907) I. L. R., 31 Bom,, 393. back and wore decided by another Subordinate Judge who held that independently of the decree of 1909 the plaintiffs had failed to prove any title and had not proved possession within limitation. The learned Judge of this Court who heard the appeal on the return of these findings, came to the conclusion that the suit of 1909 was not in reality a contentious suit within the meaning of Section 52 of the Transfer of Property Act, and that therefore, the plaintiffs having failed to prove title independently of the decree in the former suit, their suit should fail. He allowed the appeal, set aside the decrees of the courts below and dismissed the plaintiffs' suit in tolo. Before us it is urged, and with considerable force, that this Court was bound by the findings of fact at which the court below arrived. If is pointed out that) the lower appellate court actually framed an issue as to whether Or not the previous suit of 1909 was fraudulent and collusive; that it remitted that issue to the court of first instance; that that court held that it was a bond fide suit, and that the lower appellate court adopted that finding and came to the same conclusion. We think that there is considerable force in this argument. The learned Judge before whom this case was argued remarked in his judgment as follows: 'What the court had to consider was a suit brought by a plaintiff who had no title to the property in dispute.' This was assuming a point against the plaintiffs in this suit which had been decided in their favour in a previous suit. The judgment goes on to say: 'It was instituted on the 15th of March, 1909, and it came to a conclusion, and that conclusion an ex parte one, by the 27th of May, 1909, that is, within a little more than two months after the institution of the suit. Bearing these facts in mind I cannot agree with the lower appellate court that the suit was in reality a contentious suit, It appears to me that the whole of these proceedings in March, 1909, were of a collusive or fraudulent character, and, although a suit was apparently instituted and the matter terminated in a decree, I am not prepared to hold that the suit was a contentious suit actively prosecuted within the meaning of Section 52 of the Transfer of Property Act.' In other words, it may be said that the learned Judge went behind a clear finding of fact because he disagreed with it. This, as their Lordships of the Privy Council have remarked, ' is country to law.' The facts pointed out by the learned Judge are not in themselves sufficient to form the basis of a finding that the suit was a collusive suit. It may be perfectly true that the defendants second party were cheated and defrauded by the defendants first party, but there is not a scrap of evidence to show that the plaintiffs were any party to that fraud. In fact both the courts below have come to the opposite conclusion. There was no onus on the. plaintiffs in the present suit to prove their title independently of the decree of 1909. They based their claim upon that decree. They put it into evidence in court, and the bare fact that they, were unable to prove apart from it any title is not sufficient ground for holding that they had colluded with the defendants first party to defraud the defendants second party. In our opinion this Court was bound by the finding of fact) at which the lower appellate court arrived. That suit being a bond fide suit, it was contentious from the day it was instituted to the day of its decision, It was no fault of the plaintiffs if the defendants first party did not come into court to defend....The defendants second party purchased the property pending the decision of that suit, and Section 52 of the Transfer of Property Act clearly applies, as the suit was contentious and was 'actively prosecuted, for it was prosecuted up to a decree in favour of the plaintiffs, In the present suit it is not open to the Court to go behind that decree in these circumstances. The title, therefore, being established in the plaintiffs as against the defendants second party, the plaintiffs were entitled at least to the decree given to them by the court of first instance and uphold by the lower appellate court. We allow this appeal, set aside the decree of this Court, and restore the decree of the lower appellate court. The plaintiffs will have their costs of both hearings in this Court.