1. In the suit out of which this appeal has arisen the plaintiff sued for a declaration of her title and recovery of khas possession with mesne profits of two plots of land in area some nine bighas. Her case was that these two plots of land originally formed two chakran holdings. These chakran holdings were resumed in the year 1905 and on resumption were settled with one Badal Roy. It may be here noted that the plaintiff herself purchased the mehal in 1908. Badal Roy was unable to get possession with the result that the plaintiff brought two suit's with regard to these plots of land Nos. 645 and 646 of 1911 and obtained in these two suits two ex-parte decrees. According to her she then took possession and settled some of the land with defendant 1. Thereafter further trouble arose and in proceedings under Section 145, Criminal P.C., decisions were given which were against the plaintiff. Hence this suit.
2. The defence was that the plaintiff had no title, and that the defendants held the land under one Makhan Lal Mukerji also known as Janai Babu.
3. The trial Court framed a number of issues. All the issues ware found in favour of the plaintiff and the suit was decreed. On appeal to the District Court the case was remanded for the determination of some further issues which had not been determined by the trial Court. The case then again came before the District Court with the findings of the Court of the first instance. On the issues that had been sent down to that Court for determination, the District Court dismissed the appeal. The learned Subordinate Judge held that the only evidence that the lands were chakran were two decrees and the proceedings held in execution thereunder. He found that these two decrees had been obtained by fraud and that the whole of the execution proceedings were also fraudulent, processes both in the suits and in the execution proceedings having been suppressed. But he held that three years had elapsed since the defendants knew of these decrees and hence they were barred from disputing the validity of these decrees. On this finding he dismissed the appeal. The defendants have appealed to this Court.
4. Mr. Mitter who appears for the appellants has put forward two contentions first that the defendants can plead that the decrees were obtained by fraud and need not sue to have them set aside; and secondly, that the defendants in defence are entitled to challenge the correctness of the decrees even though a suit to set them aside is time barred.
5. Now Section 44, Evidence Act, 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.
6. The present decrees are relevant under Section 40 and hence come under Section 44. They were put in as pieces of evidence. The defendants have shown that they were obtained by fraud and hence the Court cannot rely upon them. S 44, Evidence Act, will be found discussed at great length by Banerji, J., with his usual clearness and lucidity in the case of Rajib Panda v. Lakhan Sendh Mahapatra  27 Cal. 11 and it would not be possible for me to add anything to the learned Judge's remark. No doubt the defendants cannot now bring a suit to set aside those decrees, but they still can in defence contend that they were obtained by fraud; and it is not necessary for them to brings a suit to set them aside. The Limitation Act applies to the bringing of suits and' hot to defences : see Mahadev Narayan v. Sadashiv Keshav A.I.R. 1921 Bom. 257 with special reference to p. 52 (of 45 Bom.) There is, therefore, in this ease no evidence that the lands in question were chakran lands, it being found by the lower appellate Court that these decrees were obtained by fraud and hence their evidentiary value is nil. The plaintiff is, therefore, not entitled to eject the defendants on the ground put forward in the plaint, namely, that they held chakran lands.
7. The plaintiff-respondent contends that she is entitled at any rate to a declaration of her title to the lands in dispute. She would seem to contend that so far as her title is concerned that title has been, admitted by the defendants. It is somewhat difficult to discover whether the defendants did at any time daring the suit admit the title of the plaintiff to the lands in dispute. Certainly in their written statement they would seem to have put forward the case that the lands in suit did not belong to the plaintiff but belonged to the Janai Babus. In his statement, however, of the defendants ease when it was first on appeal before the District Court, the learned Judge there summed up the defendants case:
The defendant contended that the decrees in Suits Nos. 645 and 646 of 1911 were fraudulently obtained; that no summonses were served in those suits but that they were fraudulently suppressed and that the proceedings in execution also were suppressed; on the met its they urged that they were not service tenants but were. ordinary tenants paying money rents and that they have acquired the right of occupancy so their possession was not liable to be vacated.
8. This may or may not be the impression of the learned Judge who heard the appeal, arrived at as to what was the defendants case as made before him. When, however, the case came back again, after remand the defendants appear to have once more contended that the plaintiff had no title, In the statement of the cases of the parties in the last Court of appeal the defendant's case was stated as follows:
On the defendant's appeal it was contended first that the Courts below have held that the plaintiff has not been able to prove her title or possession. It may be that the defendant after the issues sent down on remand had been decided in their favour went back to the former position that the plaintiff had no title, In another portion of the learned Judge's judgment be seems to have held that the lands lie within the putni mehal purchased by the plaintiff, but that does not show that these formed the alleged chakran holdings. In conclusion he states that these decrees and proceedings stand good and that plaintiff has proved her title and possession within the period of limitation on the strength of these which it is too late now to question.
9. Therefore, he apparently held that the plaintiff's title had been proved by means of these decrees which we have now found, are valueless as evidence having been obtained by fraud. It does not seem to us that the question of title has really been satisfactorily dealt with by the lower appellate Court. We think if will be more satisfactory if this question of title be gone into by the lower appellate Court. We, therefore, send back the case to the lower appellate Court to determine the question on the evidence now on the record as to whether the plaintiff has or has not proved her title to the lands in suit. Neither party will be allowed to adduce any farther evidence.
10. With regard to costs, the appellants will be entitled to their costs before this Court, but the costs of the lower Courts will abide the determination by the lower appellate Court. If the plaintiff succeeds on the question of establishment of her title the parties will each be entitled to one-half of the costs, but if the plaintiff fails in proving her title and her suit is dismissed entirely the defendants will be entitled to all the costs incurred by them in the lower Courts.
11. I agree.