1. This is defendant's Second Appeal against whom suit for possession was dismissed by the trial Court but was decreed in appeal.
2. Kaula Singh, son of Bhan Singh, was the owner of the suit property. He died on 22nd Aug, 1972 leaving behind three daughters names Balbir Kaur, Jagir Kaur and Surjit Kaur. On the death of Kaula Singh, Mutation of the suit land was sanctioned in favour of the defendant-Nachhatar Singh on the basis of a decree dt. 26th April 1972, suffered by Kaula Singh in favour, of Nachhatar Singh. the plaintiffs, i.e. the two daughters Jagir Kaur and Surjit Kaur filed on 4th Nov., 1972 the suit for possession of their 2/3rd share in the suit land left behind by their father kaula Singh. It was alleged in the plaint that the defendants are asserting their rights on the suit land under a decree dt 26th April, 1972, which decree, according to them, was obtained by collusion and form a Court which was not competent to pass the same. It was alleged that the Sub-Judge 1st Class, Muktsar, who passe the said decree had no jurisdiction to entertain the suit as (a) the property in dispute was located in Tehsil Fazilka; (b) that to create fictitious jurisdiction of the Sub-Judge Muktsar, one plot which was not in existence and of which neither Kaula Singh nor defendants were owners or in possession, was fictitiously shown with the property in dispute to deceive the Court; (c) that the property in dispute was solely owned by Kaula Singh, and defendant No. 1 Nachhatar Singh had no share in it nor had he any share in the alleged plot. He was not in possession of the plot and there was no question of any family settlement; and (d) that after 19565 Kaula Singh could not orally or by collusive decree transfer the property as it violated the statutory provisions. Hence, the suit was filed for their 2/3rd share.
3. In the written statement, the defendants raised certain preliminary objections as to the plaintiffs rights to challenge the decree. According to the Written Statement, the suit as such was not maintainable unless the earlier decree was got cancelled. On merits it was pleaded that Kaula Singh during his lifetime, in view of the family settlement had given land to the children of his daughter Smt. Balbir Kaur and had also given them the possession of the property. Nachhatar singh was in lawful possession of the property because of the decree in his favour.
4. The trial Court found that the decree dt. 26th April, 1972 was passed by a Court of competent jurisdiction. It was further found that the question whether Kaula Singh had any plot of land situate in Muktsar cannot be re-opened as the Muktsar Court had accepted the existence of such a plot. It was further held that the plaintiffs are bound by the earlier decree and the present suit, therefore, was snot competent in the presence of the earlier decree. The trial Court also observed that if the plaintiffs wanted to avoid the consequence of the earlier decree they must first get it set aside. Ultimately, with there findings, the suit was dismissed. In appeal, the learned Senior Sub-Judge with enhanced Appellate Powers reversed the said findings of the trial court and came to the conclusion that a collusive decree was obtained earlier by Nachhatar singh defendant against Kaula Singh and, therefore, the same was not binding on the plaintiffs. It was further found that immovable property of the value of more than Rs. 100/- could not be transferred orally and since it had been transferred by way of the said decree it contravened the provisions of the Transfer of Property Act and, as such, the transfer is not valid in the eye of law. The contention raised on behalf of the defendants that the earlier decree operates as respondent judicata was repelled on the ground that Kaula Singh deceased had not transferred the property by ways of family settlement and the decree dt 26th April, 1972 is illegal and not binding on the plaintiffs. Consequently, the suit was decreed. Dissatisfied with the same, the defendants have filed this Second Appeal here.
5. It is surprising that the copy of the decree dt 26th April, 1972 was not produced on the record. It appears that the whole file of the earlier suit was there before the trial Court and the parties proceeded with the assumption that such a decree exists. Moreover, the lower appellate court has reproduced the said decree in para 10 of its judgment which is to the following effect:--
'This is a suit filed by Nachhatar Singh plaintiff against Lola Singh defendant for the declaration that the plaintiff is owner in possession of land measuring 144 Kanals 7 Marlas and one plot as described in the heading of the plaint by reason of family arrangement. The defendant had appeared and filed written statement admitting the claim of the plaintiff. His statement was recorded wherein he admitted the claim of the plaintiff. the parties seem to have compromised. In view of the admission of the claim of the plaintiff by the defendant, the suit of the plaintiff is decreed as prayed for in the plaint leaving the parties to bear their own costs.'
The main controversy between the parties in this appeal is as to whether the said decree obtained by Nachhatar Singh could be challenged in the present suit by the plaintiffs or not and if so on what grounds the said decree could be challenged and whether any valid title had passed to defendant Nachhatar Singh on the basis of the said decree.
6. the learned counsel for the defendant appellant vehemently contended that the decree could only be challenged under S. 44 of the Evidence Act and that too by a third party and not by a party to the suit in which that said decree was passed. In support of this contention he referred to Mt. Parbati v. Garaj Singh, AIR 1937 All 28, Shripadgouda Venkangouda Aparanji v. Govindgouda Narauangouda Aparanji, AIR 1941 Bom 77, Parameswearn Naair v. Aiyappan Pillai, AIR 1959 Ker 206 and Laxmi Narain Gododia v. Mohd. Shafi Bari, AIR 1949 East Punjab 141. On this question I do not find any merit in the contention raised on behalf of the appellant. S. 44 of the Evidence Act reads as follows:--
'Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.-Any party to a suit or other or decree which is relevant under S. 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.'
Reading S. 40 with S. 44 it is evident the under S. 40 the previous judgments are relevant to bar a second suit or trial., In other words, the earlier judgment operates as respondent judicata. That will only be ordinarily between the same parties, and if that is so then the said judgment being relevant u/s 40 could be challenged if it was proved by the adverse party that the same was delivered by a Court not competent to deliver it or was obtained by fraud or collusion. It is only u/ss. 41 and 42 of the Act when the judgment is relevant that even a third party can show that the same was delivered by a Court not competent to deliver it or that it was obtained by a fraud or collusion. Even the judgments relied on by the learned counsel for the appellant do not support his contention. In Laxmi Narian Goddodia's case (supra) it was held that S. 44 is the only provision of law under which a judgment or an order or a decree which is sought to be proved with a view to establish the plea of respondent judicata can be avoided. similarly, in Tribeni Mishra v. Rampuijan Mishra. AIR 1970 Patna 13. it was held that the right as given by S. 44. Evidence Act has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or a decree. etc., set aside by bringing a regular suit for the purpose. A decree or an order can be challenged on ground of fraud in a collateral proceeding without any suit for setting aside the decree irrespective of the time when the judgment was delivered or the order of the decree was passed. Similarly, in Mt. Parbati's case (supra) it was held that the meaning of S. 44 of the Evidence Act is that if collusion is proved between the parties to previous suit then the judgment in that suit which is relevant u/s 40 cannot act as a bar. Thus, the contention that no decree could be challenged by a party to the suit subsequently on the basis of fraud or collusion cannot be accepted as such. The authorities relied on by the learned counsel for the appellant do not lay down such a law and, in any case the same are distinguishable on facts.
7. The second question that arises is as to whether the plaintiffs have been able to prove any collusion or fraud as to avoid the previous decree. The allegation made in the plaint to challenge the said decree have already been reproduced earlier. The collusion, if any, pleaded therein is that after the year 1955 when the Transfer of Property Act was made applicable to the territory of Punjab State, no oral transfer could be made of the immovable property worth more than Rs. 100/-. In this respect, the finding of the learned lower appellate Court is in the following terms:--
'Moreover, it is quite a settled law and there is no dispute that immovable property of the value of more than. Rs. 100/- cannot be transferred orally, and in my opinion, if it has been transferred by way of decree. it contravenes the provisions of Transfer of Property Act and as such, transfer is not valid in the eye of law'.
To challenge this finding of the lower appellate Court, the learned for the appellant referred to S. 2(d) of the Transfer of Property Act which reads thus:--
' 2. In the territories to which this Act extends for the time being the enactments specified in the schedule hereto annexed shall be repealed to the extent mentioned. But nothing herein contained shall be deemed to affect--
(a) to (c) X X X
(d) save as provided by S. 57 and Chapter IV of this Act, any transfer by operation of law, or by or in execution of, a decree or order of a Court of competent jurisdiction...........'
I am afraid the said provision does not help the defendant-appellant to contend that since that suit property was transferred by a decree it was exempt from the provisions of the Transfer of Property Act. A copy of the plaint in the earlier suit filed on 1st Mar., 1972 (Ex. D3) is on the record. According to the allegations therein the plaintiffs, i.e. the present defendant-appellant about four years back got the suit land in family partition along with the plot and was also made the owner thereof and possession was also given to him but the defendant therein promised to get the necessary entries made in the revenue record but later on refused to do so and he started claiming himself to be the owner. There is a mutation of partition between Kaula Singh and his brother Karnail Singh (Ex. P5) showing that partition had taken place between the two brothers on 9th Dec., 1968. Thus, the question of family settlement four year prior to the filing of that suit could not arise. In any case, Mutation on the basis of that decree was sanctioned vide Ex. P 3 and it was for the first time by virtue of that mutation that the plaintiff was made the owner of the suit land. It is, therefore, evident that there was no transfer earlier as such in favour of the plaintiff making him owner of the suit property nor was there any deed executed in his behalf. In the absence of any transfer as such, the plaintiff could not get the declaration of his being the owner of the suit land on the strength of the decree unless it was duly registered as provided u/s 17 of the Registration Act. In that situation, the said decree violated the provisions of the Transfer of Property Act and the defendant Nachhattar Singh could not claim himself to be the owner of the suit land on the basis of that decree alone even if it be assumed that there was no collusion or fraud as such alleged plaintiffs or by the plaintiff. That being so, the plaintiffs could avoid that decree as to operate as respondent judicata against them because no title passed to the defendant Nachhatar Singh on the basis of that decree alone. Therefore, the finding of the lower appellate Court in this that the transfer was based on a family arrangement was never proved, either in the earlier suit or in the present suit, and except the oral evidence there was no documentary evidence produced by the defendants in this behalf. Even the lower Appellate Court found that Kaula Singh deceased had not transferred that property by way of family settlement and the decree dt. 26th April, 1972 is illegal and, thus, not binding on the plaintiff.
8. In these circumstances, the appeal fails and is dismissed with no order as to costs. Cross-objections are also disposed of accordingly.
9. Appeal dismissed.