JUDGMENT
1. The first point urged in this second appeal is that the plaintiff (who is the appellant before us) has been prejudiced by the procedure followed by the District Munsif with reference to the framing of issues. The District Munsif during the trial of the suit, amended issues Nos. 1 and 3 as originally framed and added another issue. It is alleged that the District Munsif made these alterations at the time of writing his judgment and that the effect was to allow the defendant to change his case as set out in the written statement to that disclosed in his evidence, to the prejudice of the plaintiff who thus had no opportunity of meeting the new case. If this was so, of course, the procedure of the District Munsif was clearly unjustifiable. It nowhere appears, however, from the record at what stage of the case the District Munsif altered the issues and there is nothing to support the allegation that he did so at the stage of writing his judgment. Even in the memorandum of appeal to the lower Appellate Court no ground of appeal was taken that the alteration in the issues was effected at the late stage now mentioned. Nor was there any ground of appeal alleging that the plaintiff had been prejudiced by the alteration. The only ground of appeal to the lower Court which relates to issues is No. 5 and that merely states in general terms that the District Munsif ought not to have framed issues inconsistent with the pleadings. There is nothing in the judgment of the lower Appellate Court to indicate that any point was pressed in that Court with reference to the alteration in issues or the prejudice said to have been caused to the plaintiff thereby. The plaintiff (so far as can be ascertained from the record) had reasonable notice of the nature of the defence set up and sufficient opportunity to meet it, and we are not satisfied that he was prejudiced in any material respect. In these circumstances we think there is no real substance in the first point urged and we are not prepared to attach weight to it, seeing that it is raised for the first time in second appeal.
2. It is next contended that the lower Court is wrong in its finding that Exhibit C is a collusive and colourable transaction because the defendant has, in the first place, been allowed to change his case in regard to that document; secondly, because the lower Court was under an error of fact in coming to that decision; and thirdly, because Exhibit I has been admitted in evidence, although it was inadmissible for want of registration. As regards the first point, it does not appear that the defendant was in fact allowed to alter his case with regard to Exhibit C. From the first he contended that it represented a benami transaction intended to defeat the claims of one Pullayya (who claims the land under another sale-deed) and that it was not supported by consideration. No doubt the so-called amended” third issue framed by the District Munsif suggests that the defendant’s case was that Exhibit C was only nominally executed in order to induce the plaintiff to help his vendors in the threatened litigation of S. Pullayya,” whatever that may mean. This was not in fact the case set up by the defendant either in his written statement (as set out in the preamble to the District Munsif’s judgment) or in his evidence. We are, therefore, unable to agree with the view that the defendant changed or was allowed to change his case as regards Exhibit C. With reference to the second point noted above the lower Appellate Court was, no doubt, under a misapprehension of fact in stating that Exhibit C was “got up to shield the property against the claim of S. Pullayya who had brought a suit (Original Suit No. 522 of 1901) against Pedda Gurappa and Chinna Gurappa to recover the property.” As a matter of fact he had not brought any such suit at the time when Exhibit C was executed, but he filed a suit two or three months later. The error was, however, not a material one. The evidence shows that the plaintiff and his vendors were aware that litigation was about to arise (see Exhibit I) and the conclusion of the lower Court is not affected whether Pullayya had actually brought the suit or was only about to bring it at the time when Exhibit C was executed. As regards the admissibility of Exhibit I we are of opinion that the lack of registration does not render it inadmissible as evidence in this case, having regard to the purpose for which it was used. The object with which it was tendered in evidence was to show that Exhibit C was not a real transaction. It was not used as evidence of any transaction affecting the land; but only to show that whereas by Exhibit C the plaintiff purported to buy the whole property on 2nd July 1901, he on the following day agreed to accept about one-quarter of the same land should the litigation anticipated end in favour of the vendors under Exhibit 0 without any expenditure on his own part, a course of conduct on the part of the plaintiff which was altogether inconsistent with the reality of the transaction evidenced by Exhibit 0. In this view we think that Section 49 of the Registration Act was no bar to Exhibit I being received in evidence in the case, though unregistered.
3. The appellant next argues that, as the defendant admittedly executed Exhibit A, a lease of the suit land from the plaintiff in pursuance of Exhibit C, the defendant ought not, therefore, to be allowed to impugn the sale represented by Exhibit C. The contention is that, assumming Exhibit C to have been a fraudulent sale to defeat the claim of S. Pullayya, the purpose, for which the fraud was designed having been carried into effect (for Pullayya’s suit was dismissed) neither the plaintiff’s vendors nor the defendant, who was the tenant of the latter, can now question the bona fides of the sale. In support of this contention the case of Kondeti Kama Row v. Nukamma 31 M. 485 : 4 M.L.T. 331 : 18 M.L.J. 576 is cited. The principle therein enunciated is that where a decree has been passed upholding a transaction between the parties to a suit, neither the plaintiff nor the defendant will be allowed afterwards to say that the decree was the result of a collusive arrangement arrived at by them in order to carry out a scheme of fraud and that it should, therefore, be treated as a nullity and the state of things which existed previously to the passing of such decree be restored. The same principle will apply even if no decree be obtained. The decision has really no application at all to the facts of the present case. Pullayya’s suit was dismissed, not because of the sale, Exhibit C, being upheld to be a genuine transaction, but because it was found that Pullayya’s vendors had no right to the property. Again Exhibit C was a transaction not between the plaintiff and the defendant in this suit but between the plaintiff and. some others. The defendant, at the highest, did no more than assist the fraud by executing Exhibit A in order to give Exhibit C a semblance of reality. In these circumstances we do not think the case cited is authority for the view that the defendant would be debarred from, questioning Exhibit 0 as a collusive transaction. He was a tenant under the vendors of Exhibit C and it may well be that he was not in a position to avoid executing Exhibit A when his landlord was anxious to execute Exhibit 0.
4. The last contention for the appellant is that the defendant is estopped from questioning the plaintiff’s title. This contention, of course, is based on Section 116 of the Evidence Act. That section, however, does not apply to the facts of this case. It only applies to cases where the tenant has been put in possession by the landlord and not to cases where he has been in possession previously Lal Mahomed v. Kallanus 11 C. 519 . It also only applies in terms to cases where the denial of the landlord’s title is made during the continuance of the tenancy. Here the defendant was not let into possession by the plaintiff and the lease upon which the plea is based (Exhibit A) expired long ago. It is found by the lower Appellate Court that the lease sued upon (Exhibit B) is a forgery.
5. On all points, therefore, the appeal fails and is dismissed with costs.
