ABDUL SAMAD KHAN Vs. ABDUL MAHIT

JUDGEMENT

(1.) This appeal is against a judgment of affirmation. The plaintiff instituted the suit for a declaration that the decrees in Title Suit No. 2 of 1969 and the decree of dismissal on appeal in Title Appeal No. 1113 of 1971 dated 7.9.71 and 30.3.72 respectively were fraudulent, null and void and not binding on him. There are other incidental prayers for injunction restraining the defendant from taking any steps for executing the decree for costs or from making the preliminary decree final or from executing the decree if made final.

(2.) It appears that the defendant filed Title Suit No. 2 of 1969 in the Third Munsif's Court at Alipore against the plaintiff for partition of the suit properly claiming his eight annas share the Train. The suit was contested by the defendant who is the appellant before me contending that he is the owner of sixteen annas share in the property. The suit, however, was decreed and an appeal therefrom was dismissed. It appears Appeal from Appellate Decree No. 684 of 1977. that in the appeal an application was filed by the present appellant under order 41 rule 27 of the CP Code for admission in evidence of certain documents but the prayer was rejected by the said appellate court.

(3.) The plaintiff thereafter has brought the present suit alleging that the defendant, who was the plaintiff in the aforesaid partition suit, ha suppressed certain documents of title from court which would show that he had no share at all in the suit property. It is stated that by reason o the said suppression a fraud was committed which entitled the appellant to institute the connected suit for setting aside the decrees in the partition suit and the appeal therefrom. Reliance was placed on section 44 of the Evidence Act which provided that any party in a suit or proceeding may show that a judgment, order or decree relevant under section 40, 4 and 42 was delivered by a court not competent to deliver it or was obtained by fraud and collusion.