1. This is a defendants appeal arising out of a suit for declaration of title. The facts of the case are very complicated. They may be briefly stated as follows In 1834 a certain share in the village was purchased in the names of three persons, Raghubar, Shankar and Sheo Baran. Sheo Baran's son sued for partition and separation of his share and his claim was contested not only by Raghubar's son Chit Bahal, the present plaintiffs' ancestor, but also by another claimant, Padarath. Padarath put forward the claim that although his name was not entered in the sale-deed he was entitled to an equal share and that, therefore, the plaintiffs were only entitled to one-fourth and not one-third. In spite of this defence Sheo Baran's son got his one-third share separated. Subsequently Padarath and Bharosa actually brought a suit to recover one-fourth out of the entire share sold by the sale-deed against Chit Bahal. Chit, Bahal admitted the claimants right but the other defendants did not. The first Court decreed the claim of Padarath and Bharosa for one-fourth share in the entire property, principally relying on the admission of Chit Bahal. It is to be noted that Chit Bahal did not appeal from that decree but the other contesting defendants appealed. On appeal the learned Subordinate Judge, in his judgment, dated the 5th of February 1868, held that the admission of Chit Bahal was a collusive one with a view to injure Sheo Baran's heirs and that it was Chit Bahal who had got that collusive suit instituted by Padarath and Bharosa. He accordingly held that the decree against the then appellants could not be upheld, and ordered that the appeal be allowed and the suit of the plaintiffs be dismissed as against the appellants. The effect of that judgment was that although there was a clear finding in the judgment that the suit had been instituted in collusion with Chit Bahal the decree for one-eighth share against Chit Bahal was allowed to stand and the suit was dismissed as against the other defendants only. Mr. Sams the learned District Judge in the present case in his judgment has remarked:
The appeal preferred by the latter was allowed with the result that Padarath and Bharosa retained only one-eighth share of the whole property that had been sold.
2. This entry has continued all along. On the basis of this entry these persons have even obtained decrees for profits from the revenue Court.
3. The Courts below have held that the effect of the findings of the Subordinate Judge in 1868 was to destroy the title of Padarath and Bharosa absolutely and that in view of the fact that the suit was a collusive one the decree in favour of Padarath and Bharosa against Chit Bahal was of no effect.
4. In my opinion the judgment of the Courts below are based on the erroneous supposition that a collusive decree does not bind the parties thereto and is a nullity. In my opinion it does not lie in the mouth of the present plaintiffs, who are the representatives of Chit Bahal to say that the decree for a one-eighth share passed in favour of Padarath and Bharosa against Chit Bahal is not binding on them on the ground that Padarath Bharosa and Chit Bahal were at that time colluding with each other. To allow this would be allowing the representatives of a party to plead that party's own fraudulent collusion.
5. No doubt a decree can be avoided on the ground of fraud or collusion under Section 44 of the Evidence Act. But I do think that there is a great difference between fraud and collusion. A party who has been made the victim of a fraud can obviously avoid a decree on the ground that he has discovered the fraud subsequent to the decree which could hot have been made a point of defence in the former litigation. On the other hand, the fact of collusion is a matter which must have been well known to both the parties and is a point which could and might have been raised before the decree was passed on the last occasion. A third party can undoubtedly avoid a decree on the ground that it has been obtained collusively, but I am clearly of opinion that a party to a collusive decree cannot avoid it on that ground. There are at least three old cases laying down the distinction between fraud and collusion and holding that a collusive decree is binding on the parties. They are Chenvir Appa v. Puttappa  11 Bom. 702, Varadarajulu Naidu v. Srinivasulu Naidu  20 Mad. 333, and Kandetti Kama Rao v. Nukamma  31 Mad. 485. That such a decree is binding on a representative is shown by the case of Rangammal v. Venkatachari  18 Mad. 378. If parties to a decree or their representatives were allowed to nullify a decree by pleading their own fraud or collusion the result would be disastrous and would open a wide door for urging false and convenient pleas. I am, therefore, of opinion that in spite of the remarks in the judgment of the Subordinate Judge the decree for one-eighth share which he confirmed and did not set aside estops the representatives of Chit Bahal from saying that one-eighth share in the property sold did not belong to Padarath or Bharosa.
6. As a last resource the learned vakil for the respondents urged that the judgment in the redemption suit of 1916 operated as res judicata in favour of the plaintiffs. This point was never raised in the pleadings or in the trial Court Nor was it urged before the lower appellate Court. That suit was against the defendants second party only and not the defendants first party. In fact even the defendants second party tried though at the eleventh hour to get the Subordinate Judge not to adjudicate on the question of title. The learned vakil for the respondents has not even got a copy of his judgment on which he seeks to rely. Nothing in that judgment has been brought to my notice which would show that the question of title was decided adversely to the defendants in this case. On the other hand the judgment of the Additional Subordinate Judge in the present case shows that the present contesting defendants were not parties to that redemption suit. Under the circumstances I do not think that the plea of res judicata should be allowed to be raised on behalf of the plaintiff, or can be accepted.
7. The learned District Judge has however, further remarked that the names of Padarath and Bharosa have continued in the papers as farzi. This presumably is the necessary result of his finding that the collusive decree conferred no title on them. The learned District Judge has however, remarked
I am not satisfied that their (Padarath and Bharosa's) heirs have had possession since and I hold that their names have continued in a farzi manner.
8. But the Judge has not distinctly found that the plaintiffs have acquired title since the decree of 1868 by adverse possession against the defendants. Even if under the decree Padarath and Bharosa got a one eighth share against Chit Bahal they might have lost it by the adverse possession of Chit Bahal. This question has not been gone into by the Courts below at all. They have merely decreed the claim on the supposition that the decree itself had no legal effect.
9. Before finally disposing the appeal I would, therefore, ask for a finding on the following issue: (1) Did Chit Bahal or his representatives subsequently acquire title by adverse possession extending over 12 years in respect of the one-eighth share which was given to Padarath and Bharosa under the decree of 1868, and prior to their recently obtaining the decree for profits from the Revenue Court
10. The issue referred to above is accordingly sent down to the lower appellate Court under Order 21, Rule 25, and the finding on it should be sent to this Court within two months from this date. No further evidence is to be allowed. On receipt of the finding the usual ten days will be allowed for objections.