1. I have felt some difficulty about this ease, especially the last point urged on behalf of the appellant, namely, the necessity for formal proceedings to set aside the decree for ameans of rent as against the zamindar by the plaintiffs in order to enable them to maintain this suit. The argument, I think, may be accurately stated in this way: inasmuch as the defendant claims title from and through the zamindar, the plaintiffs in order to succeed must get rid of that which conferred upon the zamindar the right to grant the patta which he granted to the defendant-appellant before me. On the other hand, the respondents' argument is that the decree in question is only a decree for arrears of rent. It is not necessary for them to have that set aside if they can show that it was fraudulently obtained as against them. The subsequent proceedings resulting in the actual ejectment, if there was an actual ejectment, are invalid in the eyes of the law and, therefore, cannot be relied upon. On the whole, I think, that answer is an effective answer. The substance of the matter is this. The suit is one brought by two persons, who were mortgagors, for redemption against the mortgagee and a substantial controversy is raised by the defence, namely, that the mortgage has ceased to exist because in 1902 the zamindar having obtained a decree for. arrears of rent and having in execution proceedings under that decree obtained ejectment of the plaintiffs in the Revenue Court, the mortgage has been terminated and that at a subsequent date the defendant has become a tenant of the zamindar in the ordinary way under a patta. Now it is admitted by Mr. Banerji for the respondents that that defence if established is a good answer to the plaintiffs' claim and the authority cited to me Kehar v. Hasan Ali Khan 2 A.L.J. (sic), would appear to show that that is so. But the Court below, to put it in compendious Ianguage, has found that the whole of these proceedings were a swindle, that the plaintiffs-mortgagors were minors, that their guardian was their mother who was blind, that the zamindar's agent was the mortgagee's uncle, that the proceedings for arrears of rent which themortgagee was responsible to payrelated to only one out of three holdings and that they were mere conduit pipes for arriving . at an ex parte decree which could entitle the zamindar to eject the mortgagors and put an end to the mortgage transaction. In answer to the question why the plaintiffs, who did not bring this suit until ten years after attaining their majority (or of one of them), were guilty of delay, it is said that the plaintiffs themselves did not discover the real facts, until the written statement was put in by the defendant. The points argued before me were two. The whole of the case alleging collusion and fraud which the plaintiffs ultimately relied upon has been established in fact in the opinion of both the lower Courts, and it is admitted on behalf of the appellant that if that decision stands his defence must fail, just as it is admitted on behalf of the respondents that if it does not the suit must fail, subject to this that the appellant further contends that in any case the zamindar ought to be a party to the suit. So far as fraud is concerned, it is quite clear that the plaintiffs did not institute their proceedings upon that basis in the first instance; but it has now been made clear to me that when they got into Court they did give evidence which, unless fraud and collusion were relied upon, would have been inadmissible., I cannot do better than quote my own language in the case reported as Lakhrani Kuary. Dhanraj Singh 32 Iad. Cas. 634 : 14 A.L.J. 102 at p. 107. The language used there appears to me to fit in precisely with the facts of this case. So far as this allegation of fraud and collusion is concerned, the defendant not only did not object to its admission on the ground that it was not contained in the pleadings, but actually met it by calling evidence of his own. Indeed a part of the evidence upon which the findings of the Courts below were ultimately based came from one of his own witnesses, namely, the patwari. Under these circumstances, although the general rule, no doubt, is that where fraud is alleged and relied upon it must, before it can be proved, be clearly stated in accordance with the provisions of Order VI, Rule 4, the rule does not apply where the party aggrieved raises no objection and fights the case at the original hearing as though the pleadings were in proper from.
2. The second point relied upon is this, that the plaintiffs cannot succeed in this suit without making the zamindar a party. I think this is the same point in another form that they must get the decree set aside. There, no doubt, is considerable force in this contention. It does seem at first sight rather a large order, inasmuch as the defendant's title rests upon the status of the zamindar or his capacity in the matter of granting patta which could only be derived through some proceedings against the mortgagors for ejectment, that while these proceedings still stand the plaintiff can notwithstanding obtain redemption without going through the form of getting them set aside. I think the answer to it is also two-fold. On the one hand, the plaintiffs are not really seeking to set the decree aside, nor is it necessary for them to do so. They are bringing an action pure and simple for redemption. They are relying upon their rights under the mortgage-deed as mortgagors in a transaction which they say has never lawfully been terminated, and when the defendant refers to certain proceedings which he says have terminated the mortgage transaction, the mortgagors merely reply 'so far as you (defendant) are concerned, these proceedings do not help you and as against you do not stand in our way because they were obtained by your own collusion and fraud,' and it is an invariable principle of equity that a party cannot rely upon his own fraud. I thinkthere is also another answer. The decree has not, been set aside and the judgment in this suit does not purport to have set it aside. It was a decree, as I understand it, of a Revenue Court for recovery of arrears of rent. But if the decree still stands and is not barred by the Statute of Limitation, it is open to the zamindar, if he still sees fit, to take proceedings under that decree and challenge the decision as to whether or not, in the first place, his agent was fraudulent and he, in the second place, is or is not bound by the fraud of his agent. It may be said in answer to that, that so far as the zamindar is concerned the decree was satisfied by ejectment; but so far as this case is concerned the finding of fact on the admission of the defendant's own witness is that there was in fact no ejectment and no real change of possession. On the whole it seems to me that the plaintiffs are entitled to succeed just as a man is entitled who sues for possession on the strength of his own title to succeed, although thare is some invalid document standing in his way to recover possession, without taking steps to get that document formally removed by the decree of a competent Court. In this case the plaintiffs' allegation of fraud and collusion being in fact established, they have a right to obtain a decree without taking formal steps to get rid of the proceeding's relied upon by the defendant which, according to the findings of the Courts below, have no legal validity. If this view be correct it was open to the lower Courts to consider the issues of fact. Their findings are conclusive in the matter and I, therefore, dismiss this appeal with costs.