N. D. Ojha, J.
1. One Haji Mohammad Ibrahim. had three sons--Mohammad Siddiq, Mohammad Yousuf and Mohammad Ismail. Ibne Hasan, the appellant in this second, appeal, is the son of Mohammad Ismail, whereas the respondents are the legal representatives of Mohammad Siddiq. Suit No. 911 of 1970 was instituted by Mohammad Siddiq in the' Court of Munsif, Varanasi, alleging that Haji Mahammad Ibrahim was the owner of house No. D-34/88 (present No. 43/1397) and a portion of house. No. D-34/85 (present No. 43/1.38) shown in yellow colour in the map attached to the plaint. While going for Haj pilgrimage, the executed a registered Intzamnama on 11th September, 1924, providing for the management of his properties in his absence. After return from Haj, Haji Mohammad Ibrahim resumed possession of his properties and continued to deal with the same as their owner. Due to family differences, Mohammad Ismail, father of defendant Ibne Hasan, went away to Calcutta, While Mohammad Ismail was at Calcutta, Custodian, Evacuee Properties, issued notices treating Mohammad Ismail to be an evacuee and showing the disputed properties as evacuee properties. Haji Mohammad Ibrahim objected to the notice served by the Custodian who discharged the same vide his order dated 13th February, 1952. The appeal filed against the order of the Custodian was also dismissed on 17th....1952. Mohammad Ibrahim also filed suit No. 126 of ......... seeking declaration that he was the owner of the two houses and that the Intazamnama dated 11th September 1924, did not confer any ownership, rights on his son Mohammad Ismail. That suit, after Mohammad Ismail filed a written-statement was decreed on 11th October, 1952. Thereafter Mohammad Ibrahim gifted the two houses to plaintiff Mohammad Siddiq by means of a registered gift deed dated 22nd January, 1953, and the donee obtained possession of the houses as owner thereof. Subsequently Mohammad Ibrahim died on 26th May. 1954, and Mohammad Ismail went away to Pakistan. The Custodian of Evacuee Properly again issued notice dated 28th September, 1954, treating Mohammad Ismail as an evacuee and the said properties as evacuee properties. On an objection being raised by the plaintiff the Assistant Custodian, Allahabad accepted his title to the properties and held that Mohammad Ismail had no concern with the same. After Mohammad Tsmail had gone away to Pakistan leaving his son (defendant. Ibne Hasan) at Varanasi, the plaintiff permitted Ibne Hasan to live as a licensee in portion of the house detailed in Schedules A and B of the plaint. However, as the defendant created same trouble at a family function, the plaintiff, by means of a notice, terminated his licence and called upon him to vacate the premises in his occupation within, fifteen days. In reply, the defendant asserted title to the property on the basis of an oral gift from his father Mohammad Ismail made some thirteen years back. The plaintiff; therefore, filed the suit giving rise to this appeal seeking defendant's ejectment and for recovery of damages for its use and occupation.
2. The defendant-appellant contested the suit on various grounds. He claimed to be himself the owner of the property in dispute. The trial Court dismissed the suit. Mohammad Siddiq preferred an appeal. During the pendency of the appeal before the lower appellate Court he died and his legal representatives who are the respondent in this second appeal were substituted, in his place. The suit was decreed by the lower appellate Court. Aggrieved, the defendant Ibne Hasan has filed this second appeal.
3. The second appeal came up for hearing before a learned single Judge of this Court. ' One of the pleas raised on behalf of the plaintiff-respondents was that the decree in suit No. 126 of 1952 operated as res judicata and the claim of the defendant of being the owner of the property in dispute was consequently barred. The plea raised, in reply by the defendant appellant was that, the decree in suit No. 126 of 1952 had been collusively obtained by the parties thereto with the object of saving the properties from falling into the hands of the Custodian, Evacuee Property, and as such in view of Section 44 of the Evidence Act it was not binding on, him and could not operate as res judicata. In regard to this plea it was asserted for the plaintiff-respondents that since Mohammad Ismail, the father of the appellant, was a party to suit No. 126 of 1952 and the appellant was claiming title through him he could not avoid the said decree by taking recourse to Section 44 of the Evidence Act.
4. Before the learned single Judge reliance was placed on behalf of the plaintiff-respondents on a decision of Sulaiman, j. in Sahib Rai v. Bahari Rai (AIR 1927 All 494) to the effect that a party to a collusive decree could not avoid it on that ground. Reliance was also placed on the decision of Jagmohan Lal, J. in Smt. Chauhana v. Gaya Prasad, (AIR 1971 All 439) where following the decision in the case of Sahib Rai (supra) it was held that neither a party to a collusive decree nor a person claiming through him can avoid such a decree under Section 44 of the Evidence Act.
5. For the defendant appellant on the other hand reliance was placed on the decision of Ram Lall. J. in Ch. Mohammed Afzal v. Ch. Din Mohammad (AIR 1947 Lahore 117) where it was held that a party, to a judgment or its legal representative is, in view of the provisions contained in Section 44 of the Evidence Act, not precluded from avoiding its effect on the ground that the said judgment was obtained by fraud or collusion. Reliance was also placed on Beli Ram and Brothers v. Chaudri Mohammad Afzal (AIR 1948 PC 168) wherein the view expressed by Ram Lall, J. in the case of Ch. Mohammad Afzal (supra) was endorsed and approved as follows :
'The High Court held that the plea was not available to any of the parties to this suit since the judgment in the former suit was obtained by fraud or collusion within the meaning of Section 44, Evidence Act. Their Lordships agree with this conclusion for the reasons following, which are much the same as those which appealed to the High Court".
6. Finding an apparent inconsistency between the two sets of judicial pronouncement the learned single Judge referred the following question to a Division Bench for its opinion.
"Whether a party to a decree or a person claiming through such party can, under Section 44 of the Evidence Act, be allowed to avoid the effect of the decree on grounds of fraud or collusion?"
The matter has thus come up before us for giving our opinion on the aforesaid question. Having heard counsel for the parties we are of opinion that the answer to the question aforesaid has to be in the affirmative. Now we proceed to give our reasons for this opinion. Sections 40 to 44 of the Evidence Act have been placed under the heading "Judgments of Courts of Justice when relevant". In the instant case we are concerned with Sections 40 and 44 and not with Sections 41 and 42. Even Section 43 will have some relevance for answering the question referred to us. As such for the sake of convenience Sections 40, 43 and 44 of the Evidence Act are being quoted. The illustrations given below Section 43 have been omitted:
"40. Previous judgments relevant to bar a second suit or trial.--The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is, whether such Court ought to take congnizance of such suit or to hold such trial.
43. Judgments etc., other than those mentioned in Sections 40 to 42 when relevant.--Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act.
44. Fraud or collusion in obtaining judgment, or in competency of Court, may be proved.--Any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant under Section 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."
7. Previous judgments can be read in evidence in subsequent suits only if they are relevant under any of the Sections 40, 41 and 42. Judgments other than those mentioned therein would be irrelevant in view of Section 43 unless they fall in the category of judgments referred to in the latter part of Section 43.
Further, in view of Section 44 judgments referred to in Sections 40, 41 and 42 would not be relevant if it is established that they were delivered by a Court not competent to deliver the same or were obtained by fraud or collusion.
8. Section 40 of the Evidence Act even without using the term 'Res judicata' refers to the consequences of res judicata. It is because of Section 40 that a judgment, which is relied on by a party in a subsequent suit in support of its plea of res judicata, becomes relevant and can be read in evidence. A previous judgment operates as res judicata between the parties to the earlier suit as also to persons claiming title through any such party. When Section 44 of the Evidence Act permits a party to a subsequent suit to prove that any of the ingredients of the said section is made out even in respect of a judgment which is relevant under Section 40 there seems to be no escape from the conclusion that even such judgment, which would otherwise operate as res judicata and would not be possible to be avoided by the parties to the suit in which such judgment was delivered or by persons claiming through any such party, can be avoided by them if any of the ingredients of Section 44 is made out. In that event such judgment would not be relevant and cannot form the basis of the plea of res judicata. The view which we take finds support from the decision of a Division Bench of this Court of which Sulaiman, J. who decided the case of Sahib Rai (AIR 1927 All 494) (supra) was a member, in Mt. Parbati v Gajrai (AIR 1937 All 28). White dealing with the scope of S. 11, C. P. C. it was held
"In the first place it is always open to a party to show that a judgment was obtained by fraud or collusion or that there was want of Jurisdiction and in such eases we are of opinion that Section 11 would not apply".
9. There is another reason why this view should hold good. As seen above the decision of Ram Lall. J. in the case of Ch. Mohammad Afzal (AIR 1947 Lahore 117) (supra) was endorsed and approved by the Privy Council in the case of Beli Ram and Brothers (AIR 1948 PC 168) (supra). In Kishan Chand v. Ram Babu (1964 All LJ 389) : (AIR 1965 All 65) a Full Bench of this Court has held that even after the Constitution the law declared by the Judicial Committee continues to be the (sic) the High Court until the Supreme Court ruled otherwise. No decision of the Supreme Court taking a contrary view has been brought to our notice. In this view of the matter the decisions of learned single Judges of this Court in the cases of Sahib Rai (AIR 1927 All 494) (supra) and Smt. Chauhana (AIR 1971 All 439) (supra) taking a contrary view are overruled.
10. We may, however, point oat that since Section 43 is not mentioned in Section 44 of the Evidence Act a judgment would still be relevant under the exception contained in the later part of Section 43 namely "unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act." even if it may not be relevant under Sections 40, 41 and 42 of the Act because of the said Section 44. As such if the ingredients of estoppel are made out the defendant appellant will still not be in a position to avoid the effect of the judgment in suit No. 126 of 1952. This view finds support from the decision of a Division Bench of this Court in Darbari Lal v. Mahboob Ali Mian (AIR 1927 All 538 (2)).
11. In view of the foregoing discussion our answer to the question referred to us is that a party to a decree or a person claiming through such party can, under Section 44 of the Evidence Act, be allowed to avoid the effect of the decree on grounds of fraud or collusion and assert that the said decree cannot be relied on for the purpose contemplated by Section 40 thereof which includes providing the basis for the plea of res judicata, in view of the inclusion of Section 40 in Section 44 of the said Act. However, since Section 43 is not included in Section 44 of the said Act, collusive decree will still be relevant to support the plea of estoppel if the ingredients of estoppel are made out.
12. The second appeal may now be listed for hearing before the learned single Judge concerned with this opinion.