1. This is an appeal from a decision of the District Judge of Murshidabad reversing a decision of the Subordinate Judge of that district. In the suit out of which this appeal arises the plaintiffs were claiming a declaration of their title to a certain lakheraj property and also to some jote lands as described in the schedule to the plaint. They also claimed recovery of possession of both the lakheraj property and the jote land. The facts on which the claim is based are shortly these : There was a lady named Sukhada Sundari Dasi who executed a will on 20th June 1904 whereby she dedicated all her property to the family idol of her husband and appointed him (that is to say her husband) as she-bait of. the debuttar property so created. The husband however predeceased the lady. She herself died in April 1916. After the death of the husband the lady left her husband's home at Panchthupi and lived with her brother, Raghuram Singh, father of defendant 1. Raghuram used to manage Sukhada's property as her am-mukhtear until the time of his death. Subsequently his son, who is defendant 1, by name Kaliprosanna was also appointed her am-mukhtear somewhere about the year 1912. In that year the lakheraj property of Sukhada which is the subject-matter of the suit was sold by certificate sale for arrears of roadcess and purchased by a man named Syamaprosad, brother-in-law of Kaliprosanna, defendant 1. The plaintiffs in the suit are the sons of one Basanta Kumar Ghose who had been appointed shebait of the debuttar property by Sukhada Sundari.
2. Some four years after the death of the lady, namely, in 1920 they obtained probate of her will as executors, and on 31st August 1923 they instituted this suit in their capacity as executors to the estate of Sukhada Sundari Dasi and also as shebaits of the debuttar property claiming, as I have indicated, declaration of title to the lakheraj land sold under the certificate sale and also to the jote land to which I have already referred. The claim was based on the allegation that defendant 1 Kaliprosanna during the time when he was acting as am-mukhtear to the testatrix, had purposely withheld payment of road-cess and had fraudulently brought the property to sale and that at the sale he had himself purchased it in the benami of his brother-in-law who is the father of defendants 2, 3, 4 and 5. There was also an allegation on the part of the plaintiffs that all knowledge of the sale had been fraudulently concealed from Sukbada Sundari and that she was allowed to remain in possession of the property until the time of her death. The case made on behalf of the defendants was a denial of any fraud or any benami transaction on the part of defendant 1 in the name of his brother-in-law so far as the lakheraj property was concerned; and as regards the jote lands it was urged that there was a defect of parties and that they were not in possession of defendants 2, 3, 4 and 5. But the main contention on behalf of the defendant was that the suit was barred by limitation by reason of the: provision of Article 95, Schedule 1, Lim. Act; and the point which has been argued before us is whether or not the suit was-barred under that article or whether the suit was still maintainable as only being liable to be barred by Articles 140 or 142 or 144. It is really immaterial for the purposes of this case which of these latter articles applies, if in fact Article 95 does not apply, because it is admitted that the suit was instituted within a period of 12 years from the date of the. certificate sale. The finding of the Subordinate Judge so far as the facts of this case are concerned were that he had no-doubt that defendant 1 with the fraudulent intention of depriving Sukhada of the lakheraj property demised by the will of Sukhada to the idol brought about a sale and purchased the lakheraj property in the benami of his sister's husband Syamaprosad and that he was in possession of that property. The learned Subordinate Judge who tried the suit. came to the conclusion that the suit ought to have been brought within three years from 14th April 1920 which was about the time when the circumstances of the fraud came to the knowledge of the plaintiffs.
3. I have already stated that the suit was in fact instituted on 31st August 1920, i.e., more than three years from the time that fraud was found by the Subordinate Judge to have come to the knowledge of the plaintiffs. The learned District Judge upheld the decision of the Court of first instance upon the facts and affirmed the view of that Court that the. certificate sale was brought about deliberately and fraudulently with the object alleged by the plaintiffs. But the learned District Judge differed from the view taken by the learned Subordinate Judge on the question of limitation and came to the conclusion that Article 95, Schedule 1, Lim. Act, did not apply to the circumstances of this case and accordingly held that the suit was brought within time. The learned District Judge said in the course of his judgment:
The period of limitation would be 12 yearn from the accrual of the plaintiff's title to the lakheraj land, that is from the time of the death of Sukhada Sundari in April 1916 and the suit is not time barred.
4. And he said that it was immaterial what other article governed this case if Article 95 did not govern it. For the purpose of determining whether Article 95 does apply, it is necessary, first of all, to consider the form in which the suit is brought. As I have already pointed out, the plaintiffs brought the suit in a dual capacity; that is to say, first of all, as executors and secondly as shebaits. They were in effect claiming to recover possession of the lakheraj property on the ground that the defendants were trespassers and were not entitled to be in possession of it. It is quite true that there had been this certificate sale and the defendants purported to be in possession under a right claimed by reason of the certificate sale. Article 95 provides limitation of three years for the institution of certain suits from the time when the fraud becomes known to the party wronged and the suits in question are suits to set aside a decree obtained by fraud or for other relief on the ground of fraud. We are of opinion that this was not a suit and it is not seriously contended that it could be a suit to set aside a decree obtained by fraud. There was in fact in this case no decree of any kind. The real question is whether it can be said that the plaintiffs were bringing the suit for ' other relief on the ground of fraud.' It was argued by Mr. Banerji on behalf of the respondents that in effect this was a suit for recovery of possession and that the defendants ought not to be allowed to put themselves into a better position by reason of the fact that they had got possession of the land in consequence of a fraudulent transaction or by any other reprehensible means. Mr. Banerji argued that if this were a straightforward claim for recovery of possession against some trespasser in the ordinary way the period of limitation would extend to 12 years.
5. Therefore merely because the action of the defendants was tainted with fraud the plaintiffs' right to bring a suit to get the relief ought not to be curtailed or cut down to the period of three years by reason of Article 95. Now there are a long line of cases which seem to suggest that a suit for possession is not in fact governed by Article 95 at all. But in my opinion that proposition is too wide and cannot be correct in every possible case. It seems clear that when a person is prima facie bound by a fraudulent decree he cannot by suing ostensibly simply for possession ignore that decree and thereby evade the operation of Article 95; and where there is such a decree standing in the way of the plaintiff obtaining relief which is inconsistent with that decree, he must first of all bring his suit within the period prescribed by Article 95 in order to get the decree out of the way. To put it in other words, the plaintiff cannot simply ignore the decree which denies his title and sue for possession on the basis of title so long as that decree is subsisting. Where a decree has been made with jurisdiction and in the presence of the plaintiff that decree would be voidable on the ground of fraud; but it must be avoided; otherwise if the decree could be ignored altogether there would be no purpose in the first part of Article 95. But as I have already pointed out, it is quite clear that in this case there is no decree standing in the way of the plaintiff.
6. The question then arises whether the certificate sale was a transaction of such a nature that for the purpose of putting an obstacle in the way of the plaintiff it must be regarded as if it were a decree. If so, can the plaintiff be said to have been a party to the transaction in question Upon that point we are of opinion that although it may be that for certain purposes the certificate given by the revenue authorities under the Public Demands Recovery Act has some of the incidents of a decree, that is not the case here; and we are of opinion that the certificate cannot be a decree for the purposes of Article 95. We have then to consider whether the plaintiff can be said to be a party to the transaction. It is to be observed, as I have already pointed out, that the plaintiffs were suing first of all as executors and in that capacity it may well be said that these were legal representatives of the deceased lady and as she. was party to the sale certificate it must be taken that the plaintiffs as her executors stand in her shoes and must be regarded as a party. But the plaintiffs are also suing as shebaits, that is to say, as representing the beneficiaries under the will and in that capacity it is obvious that their interests are different from those of the executor of the will; and in their capacity as shebaits, it is obvious that they were not parties to the sale transaction. Therefore so far as that part of the case is concerned none of the authorities which have been cited to us on behalf of the appellants can have any application here. We think that the right way of regarding this matter is to follow the reasoning of Jackson, J., in Chunder Nath Choudhury v. Tirthananda Thakur (at p. 507) where the learned Judge said : ' Then it is said that if the plaintiff's suit is brought on that ground he ought to have come in under Article 95, Schedule 2, to the now repealed Limitation Act within three years from the date of the fraud being known to the party wronged.'
7. Then he went on to say:
That article has reference to cases where a party has beer) fraudulently induced to enter into some transaction, execute some deed or do some other act and desire to be relieved from the consequences of those acts. In such a case he is bound to bring his suit within three years from the date when the fraud becomes known to him. In the present case, the fraud in question is merely a part of the machinery by which, if the plaintiff's case is true, the defendants have kept the plaintiffs out of possession of a properly to which he became entitled at the death of the widow.
8. It is important to observe that Article 95 referred to in the above passage was Article 95, Lim. Act 11 of 1871 which corresponds not to the whole of Article 95 of the present Lim. Act, but to the second part of it 'for other relief on the ground of fraud.' There can be no doubt that the first part of the present Article 95 has no application and it is only with regard to the second that there may be any question. It follows therefore that if we adopt the reasoning given by Jackson, J., in the case of Chunder Nath Choudhury v. Tirthananda Thakur  3 Cal. 504 we ought to come, to the conclusion that in the present case the plaintiff was not in fact claiming relief on the ground of fraud. What in fact the plaintiffs were seeking was a declaration as against the defendants either in their capacity as executors or in their capacity as shebaits that they wore entitled to possession of the property in question. They were setting up in substance that the defendants had no title. Looking at the suit broadly it may be said that the position was this. The plaintiff was asking for possession; the defendants were denying the plaintiff's right by reason of the title which they had acquired under the certificate sale. The plaintiffs said that the defendants could not and ought not to be allowed to resist their claim by reference to the certificate sale because that sale had been brought about with the fraudulent intention of depriving the plaintiffs both in their capacity of executors or as shebaits of the property which belonged to Sukhada Sundari. We are of opinion that this is not a case where the plaintiffs were in substance seeking to set aside some transaction into which either they or their predecessor had been fraudulently induced to enter. The fraud in this case was merely a part of the operation by which the defendants had endeavoured to keep the plaintiffs out of the property which really belonged to them. Therefore, in the circumstances we come to the conclusion that not only does not part 1, Article 95, not apply but that part 2 does not apply either. In this connexion I refer to the case of Kumar Satish Kanta Roy v. Satish Chandra Chattopadhya  55 I.C. 689 where it was held that where a sale under Act 11 of 1859 (the Revenue Sale Act) was brought about by deliberate default on the part of the agent of one of the co-owners of the estate, and the purchase at the sale was effected under a pre-arranged plan to which the said agent was a party in the name of a person who under that arrangement was to hold the property for the benefit of himself and the other parties to it, the sale had no higher effect than a private alienation and the purchaser who had taken with notice of or was implicated in the fraud should be made to reconvey the property to the rightful owner. Mookerjee, J., at p. 671 (of 24 C.W.N.) said:
The parties decided to utilize the stringent provisions of the revenue Jaws for the accomplishment of their private fraudulent object. They put the machinery of the state in operation to cause injury to the plaintiff and selected in advance the purchaser who was to hold the property for the benefit of himself and of his participators in the fraud. In such circumstances as the Judicial Committee observed in Nawab Sidhee Muzarali Khan v. Raja Oojoodhyaram Khan  10 M. I. A. 540 the Court will strip off all disguises from a case of fraud and look at the transaction as it really is; because fraud is an extrinsc collateral act which vitiates the most solemn proceedings of Courts of justice, and in the words of. Lord Coke, avoids all judicial acts, ecclesiastical or temporal.
9. A little later the learned Judge said:
This is plainly a rule of honesty and fair dealings, no party to a fraudulent transaction can be allowed to derive any benefit from it; and the Court is always reluctant to condone the fraud and to permit the participants therein to retain the advantage.
10. Then he cites a number of cases in support of this proposition. We think that in the circumstances of the present case the defendants ought not to be allowed to take advantage of the fraudulent transaction to which undoubtedly they were parties in order to defeat the just rights of the plaintiff. We are of opinion that in substance the suit out of which this appeal arises was to all intents and purposes an action in ejectment because its main purpose was to recover possession of the land of which the defendants had wrongfully possessed themselves. That being so, it may be taken that the suit was not brought for the purpose of setting aside any order of the revenue authority or for setting aside the certificate sale. In this view of the matter I refer to the case of Dakheswar Prosad Narain Singh v. Gulab Kuer A.I.R. 1926 P.C. 60.
11. There is one other matter to which I ought to refer, namely, that the learned advocate for the appellants sought to make some small point with regard to the jote land. We do not think that there is any substance in the argument put forward by the learned advocate and it seems to us clear that with regard to the jote land the matter is entirely concluded by the findings of fact.
12. The result is that this appeal is dismissed with costs.
13. I agree.