1. This is an appeal by the plaintiff in a suit for declaratory relief, instituted under Section 42 of the Specific Relief Act. The case for the plaintiff is that he holds a tenancy at a rent of Rs. 13 a year in respect of the disputed land under the Biswases and the Deys who hold under the first defendant, and that the first defendant ignored the interest of the Biswases and the Deys as also his own interest in the property and fraudulently instituted a rent suit against the third defendant a s if the third defendant was his tenant in respect of the disputed land at a rent of Rs. 13 a year. This suit was decreed ex parte on the 15th June 1916 and at the sale which followed the second defendant became the purchaser of the tenancy on the 14th November 1916. On the 20th February 1916 the plaintiff instituted the present suit for declaration that the disputed tenancy was held by him Under the Biswases and the Deys and not by the third defendant under the first defendant, He further prayed for a declaration that the decree obtained by the first defendant against the third defendant and the sale in consequence thereof were fraudulent and collusive. The Courts below have concurrently found that the allegations made by the plaintiff are substantiated by 1he evidence on the record. The District Judge has come to the conclusion that the suit for rent was instituted against an imaginary tenant for recovery of an imaginary debt and that the said decree and the subsequent sale were collusive and fraudulent. But while the Court of first instance held that the present suit was maintainable, the District Judge held that the suit was barred under the provisions of Section 42 of the Specific Relief Act. We are consequently called upon to decide, whether upon the facts found the plaintiff is entitled to the declaratory relief he seeks.
2. There can be no question that the claim for rent, the suit for rent and the sale for arrears of rent were all fraudulent and collusive and that the entire proceedings taken by the first defendant against the third defendant fulfilled the requirements of a collusive and fraudulent proceedings so graphically described by Lord Brougham in the case of Bandon v. Becker (1835) 3 Cl. & Fin. 479 at p. 510 : 9 Bligh (N.S.) 532 : 6 E.R. 1517 and applied in Surendra Nath Ghose v. Kali Gopal Mozoomdar 42 Ind. Cas. 431 : 26 C.L.J. 333 : 22 C.W.N. 367 : 45 C. 920, Akhil Prodhan v. Manmatha Nath Kar 22 Ind. Cas. 86 : 18 C.L.J. 616, Radha Madhab Paikara v. Kalpataru Roy 16 Ind. Cas. 811 : 17 C.L.J. 209, Rajah Ali v. Hedayet Ali 29 Ind. Cas. 699 : 22 C.L.J. 197 : 19 C.W.N. 1151. But notwithstanding this the first defendant has strenuously contended that the plaintiff should not have instituted this suits and, that if he did institute this suit, he should have asked for an injunction by way of consequential relief. He has further urged that as upon the death of the third defendant, the imaginary tenant, as the District Judge described her, her representatives were not brought upon the record, the suit must be deemed not to have been properly constituted and should have been dismissed on that ground alone. We are of opinion that there is no foundation whatever for these contentions.
3. Section 42 of the Specific Relief Act provides that any person entitled to any legal character or to any right to any property may institute a suit against any person denying or interested to deny his title to such character or right, and the Court may in its discretion, make therein a declaration that he is so entitled and the plaintiff need not, in such circumstances ask for any further relief, provided that two Court shall make any such declaration were the plaintiff, being able to seek further relief than a mere declaration of title omits to do so. There can be no question that the plaintiff is a person entitled to a right in the disputed property, namely, he is entitled to the tenancy in respect of the disputed land held on payment of an annual rent of Rs. 3 There is also no question that the first defendant is a person who his decided and whose interest it is to deny the title of the plaintiff to such right. It is, consequently, difficult to appreciate how Section 42 is a bar to the suit.
4. Reliance has been placed on behalf of the respondent upon the judgment of Sir Lawrence Jenkins, C.J., in Deokali Koer v. Kedar Nath 15 Ind. Cas. 427 : 39 C. 709 : 1 C.W.N. 838, where Section 42 was analysed, and it was pointed out that a doctorate on should be made only Where the case tabs strictly within the scope of that section. In the present case, is we have just indicated, the facts of this litigation lender the suit subject to the operation of Section 42, Specific Relief Act. If any authority be needed for this view, reference may by made to the decision in Gobind Prasad Tewari v. Uditi Chand Rana 6 B.L.R. 320 : 2 Sup. Vol. 182. In that case it was tilled, as it has been urged here; that as the plaintiff was not a party to the previous salt, he was not bound by the decree made therein and that consequently it was needless for him to seek a declaratory relief. The answer was given by Markby, J., in the following words: 'We think the suit will lie the defendant has asserted a title to land which is altogether inconsistent with that of the plaintiff. He has asserted it in a Court of Justice, and obtained relief upon the strength of it. It is true that the plaintiff is in one sense not affected by those proceedings, because he was not a party to them, but in another way he is, for he could scarcely make any use of his title in the market after such a decision in favour of the defendant. This is a case in which the action of the defendant is itself injurious, and in which the declaration of the Court will be in itself a relief. We see no reason why that relief should not be granted.' The decision in Jamna Prasad v. Jagdeo 1 Ind. Cas. 83 : 6 A.L.J. 11 : 5 M.L.T. 56 : A.W.N. (1908) 163 where the document impeached did not cover the property of the plaintiff is plainly distinguishable.
5. It has, however, been insistently urged here, on behalf of the first defendant, that the plaintiff need not have been in a hurry to seek the protection of the Court inasmuch as the execution purchaser had not, up to the date of institution of the suit, attempted to take possession of the property. This is clearly no answer to the suit. The same contention was urged in the case of Harendra Lal Roy Chowdhury v. Nawab Salimullah Bahadur 7 Ind. Cas. 21 : 12 C.L.J. 336. To adopt the language used in that case to the facts of the present litigation, we may say that it has been suggested that the plaintiff need not have rushed into Court and might have waited till his title was challenged: But the plaintiff was not bound to wait till he actually found himself in jeopardy. The allegation of fraud and conspiracy upon which his case rests was dependent, for its proof, mainly upon oral evidence. If he had waited for twelve years, it is not imputable that much of the evidence available might have disappeared. It would obviously have been an act of inexcusable folly on the part of the plaintiff had he risked delay It is perfectly true that to entitle a plaintiff to maintain a suit for declaration under Section 4, Specific Relief Act, he must prove that he has a present existing interest, and no cause of action accrues to him until there is some infringement or threatened infringement of his right, in other words, the cloud must be cast before he can ask for its removal. He must allege and prove hostility on the part of the defendant, for no Court will move on purely speculative grounds. Butt it can not be suggested here that the defendant is not interested in denying the title of the plaintiff nor can it be contended that the plaintiff had no business to bring him into Court. This view is supported by Shivram Chintaman v. Jivu 13 B. 34 : 7 Ind. Dec. (N.S.) 23 and was adopted in the case of Gandla Pedda Nagann v. Sivanappa 26 Ind. Cas. 233 : 38 M. 1162 : 16 M.L.T. 310 : 27 M.L.J. 520, where Seshagiri Ayyar, J., observed as follows:
The object of the section is really to perpetuate and strengthen the testimony regarding the title of the plaintiff so that adverse attacks upon it may not weaken it. The policy of the legislature is not only to secure to a wronged party possession of the property taken way from him, but also to see that he is allowed to enjoy that property peacefully. In other words, if a cloud is cast upon his title or legal character, he is entitled to seek the aid of the Court to dispel that cloud. What we have to consider in this case is whether the decree obtained by the first defendant against the second defendant denies the plaintiff's title to his property. It has been said that it is not the function of the Court to enunciate abstract truisms of law. Following that reasoning it may be argued that as the fraudulent decree can in no way affect plaintiff's rights, the Court should not lend itself to the task of declaring what is obviously indisputable. But although the decree may not affect plaintiff's rights in present, it is evidence which it allowed to stand may result at some future time in disturbing the plaintiff's title. I think that is a sufficient grievance which the Courts should remedy under Section 42, Specific Relief Act.' A similar view had been taken in the case of Birj Mohan Singh v. The Collector of Allahnbad 4 A. 102 at p. 112 : A.W.N. (1881) 148 : 2 Ind. Dec. 7101 where Sir Robert Stuart, C.J., held that a suit for declaration was maintainable by the lessor. This conclusion was adopted on the ground that the denial of the title of the lessee might ultimately throw doubt upon the title of the lessor himself; see also Bromley v. Holland (1802)7 Ves. Jur. 3 : 6 R.R. 38 : 33 R.R. 2, Kenaram Chuckerbutty v. Dinonath Panda 9 W.R. 325.
6. It has finally been urged that the suit is barred under the proviso to Section 42, Specific Relief Act, and that the plaintiff should have asked for an injunction; Thakur Prosad v. Punkal Singh 8 C.L.J. 485. This was clearly unnecessary. The plaintiff is not bound by the decree. If the purchaser attempts to take possession in execution, he may be successfully slopped, it the plaintiff takes recourse to the procedure prescribed in Order XXI, Rule 99, Civil Procedure Code. The plaintiff cannot be defeated in this action on the plea that he should have asked for an injunction, when it is not necessary for him to ask for an in junction to protect his possession.
7. As a last resort, it has been contended that the suit is not properly constituted, because the representatives of the imaginary tenant are not before the Court. There is manifestly no substance in this contention. The fictitious tenant, set up by the first defendant has never appeared, either in the previous litigation or in the present suit. She has taken no interest whatsoever, for the reason that she has no interest in the land. The decree which may be made in this litigation would not bind her or her representatives, and the absence of her representatives cannot entitle the first defendant who has been at the root of this fraudulent procedure to defeat the action of the plaintiff.
8. The result is that this appeal is allowed and the decree made by the District Judge set aside. It will be declared that the plaintiff is a tenant in respect of the disputed land under the Biswases and the Deys, and that the tenancy in the third defendant set up by the first defendant has no existence whatsoever. It will further be declared that the decide which was obtained by the first defendant against the third defendant and the consequent sale were fraudulent and collusive and did not in any way affect the title of the plaintiff. The plaintiff his entitled to his costs hi all the Courts as against the first defendant.