JUDGMENT 1. THIS appeal from appellate decree is directed against the judgment and decree dated September 26, 1964 passed by Sri N. C. Dutt, Additional District Judge, Howrah in Title appeal No. 199 of 1964 whereby the judgment and decree dated March 31, 1962 made in Title Suit No. 6 of 1962 by Sri S. K. Roy, Subordinate Judge, 2nd Court, Howrah was affirmed. 2. ADMITTEDLY the suit property, being holding No. 95 B. Road, of mouza bamangachi, originally belonged to Sk. Khodan, Sk. Kalu and Kulsum Bewa. The plaintiff appellant claimed to have purchased the said property from the said owners by a registered Kobala dated June 23, 1954. It appears that before the said sale, there was a registered Bainapatra dated May 24, 1954 wherein the said Kulsum Bewa did not join. It has been alleged by the plaintiff appellant that because of the said fact, his father a legal practitioner, advised him to purchase the property in question in benami and accordingly the concerned sale deed was taken in the name of the plaintiff appellant's nephew Nani Gopal Das. It has also been alleged by the plaintiff appellant that after such purchase he paid rent to the landlord and constructed structures, inducted tenants therein and realised rents from them. It has been alleged that as Nani Gopal Das had lost his service, so since 1958 he took shelter in the plaintiff appellants' house and in his family but gradually the said Sri Das began to go astray being short of funds. The plaintiff appellant has alleged that for such conduct of the said Sri Das, he lost faith in him and brought Title Suit No. 3 of 1960 and obtained a decree. It has also been alleged that during the pendency of the said Title Suit No. 3 of 1960, the defendant respondent No. 1 got a Kobala executed in the name of his wife, the defendant respondent No. 2, although they had due knowledge of his possession and title. The plaintiff appellant has further alleged that subsequently the defendant respondents on february 2, 1960 and August 29, 1960 forcibly dispossessed his tenant Sri nani Gopal De and have raised new constructions by demolishing the existing ones. In the background of the facts as reproduced hereinbefore, the plaintiff appellant brought Title Suit no. The plaintiff appellant has further alleged that subsequently the defendant respondents on february 2, 1960 and August 29, 1960 forcibly dispossessed his tenant Sri nani Gopal De and have raised new constructions by demolishing the existing ones. In the background of the facts as reproduced hereinbefore, the plaintiff appellant brought Title Suit no. 6 of 1962 in the Court of the Second subordinate Judge, Howrah on March 10, 1962 praying for recovery of possession and mesne profits @ Rs. 25/- per month being the rate of rent received from the tenant in question. A joint written statement was filed contusing inter alia amongst others that the suit was bad for non joinder of necessary parties viz., the said Nani Gopal Das and his wife Bakul rani. In any event it was denied that tine purchase of the property was made in the benam of the said Nani Gopal das. The defendant respondents further contended that Bakul Rani, the wife of the said Nani Gopal Das herself made the purchase in the benam of her husband with her own money and built the house. It has further been alleged that such purchase and the said construction has been made by the said Bakul Rani out of her own money derived by the sale of her ornaments. It has also been alleged that on June 18, 1958 Nani Gopal Das executed a deed of relinquishment and on the same day his wife Bakul Rani executed a registered deed of agreement with the stipulation that she will not sell or dispose of the properties in question without the consent of the husband. It has been alleged that thereafter, by a registered deed dated January 12, 1960 executed by Nani Gopal Das and his wife Bakul Rani the defendant respondent No. 2 acquired her title to the property in question and before the actual sale there was an agreement dated january 6, 1960. The said defendant respondents claim to have paid rent and taxes since her purchase. In respect of Title Suit No. 3 of 1960 it has been alleged in the written statement that the plaintiff appellant fraudulently got the summons of Nani Gopal Das and Bakul Rani served upon his own father, who was also impleaded as a defendant, by giving false address of them and thus obtained an ex parte decree by practising fraud upon the court. It has been alleged that thus the said decree was not binding on defendant respondent No. 2 or her predecessor in interest. 3. ON the pleadings as aforesaid, the issues as set out hereunder, were framed and the parties went in trial on them : - (1) Is the suit barred by limitation ? (2) Is the suit bad for non joinder and mis-joinder of parties and causes of action ? (3) Is the plaintiff entitled to take khas possession by evicting the defendants ? (4) Is the defendant No. 2 a bonafide purchaser ? (5) To what relief, if any, is the plaintiff entitled ? (6) Is the suit property properly valued and Court fees paid sufficient ? 4. BY his judgment and decree, on consideration of the available evidence, the learned trial Court held that as the suit was properly valued, the same was not barred by limitation. It was further held that the framing of the suit was not bad because of the non-joinder of the said Nani Gopal Das and his wife. On the material issues being issue Nos. 3 and 4 as mentioned hereinbefore it was found that the plaintiff appellant could not satisfy all the tests of a benami transaction. It has also been found that the plaintiff appellant was not the real purchaser of the properties in suit and he had no possession of them and as such the story of forcible possession was unbelievable. It has also been found that Nani Gopal Das was the benamdar of his wife Bakul rani, who duly possessed them and in her turn sold them to the defendant respondent No. 2. The said defendant respondent No. 2 was thus a bonafide purchaser for value and there was no collusion between the defendant respondents and the said Nani Gopal Das and his wife. The due and bonafide possession of the defendant respondent no. 2 was also found and on the findings as aforesaid, the learned trial court dismissed the suit. In the suit the plaintiff appellant did not pray for declaration of his title or that the said nani Gopal Das was his benamdar and he just prayed for recovery of possession by evicting the defendant respondents. The learned trial Court has found that ordinarily the latter should have been a relief consequent upon a declaration regarding the title of the plaintiff appellant to the suit property. The learned trial Court has found that ordinarily the latter should have been a relief consequent upon a declaration regarding the title of the plaintiff appellant to the suit property. On the pleadings a point arose is to how far the decree in Title Suit No. 3 of 1960 was binding upon the defendant respondents and in support of their contentions the defendant relied on section 44 of the Evidence Act and contended that the said decree being fraudulent was not binding on them. The plaintiff appellant on the other hand contended that the deed in favour of the defendant respondents was hit by section 52 of the Transfer of Property act as the same was executed on january 12, 1960 i. e. at a point of time when the said Title Suit No. 3 of 1960 was pending and the learned trial court held the instant suit to be defective as there was no prayer for declaration of the plaintiff appellant's title and it was further found that the declaration obtained in Title Suit No. 3 of 1960 cannot ensure any benefit or in any event come in aid of the plaintiff appellant in the instant suit. It may be mentioned further that although in their written statement and more particularly in paragraph 10 the defendant respondents specifically alleged that the plaintiff appellant with a designed purpose of grabbing the property, took recourse to the clandestine method of fraudulently suppressing the summons of Title Suit No. 3 of 1960 and managed to obtain a decree with out duly serving Nani Gopal Das and his wife Bakul Rani and thereby committed fraud upon the Court, so the said decree did not in any way affect the right, title and possession of their vendors and as such the said decree being void was not also binding on them, no specific issue relating to fraud or touching the same was framed. But it appears that the judgment and. decree of the learned trial Court was mostly based on findings regarding such averments of fraud. 5. FROM the determination of the learned trial Court, the plaintiff appellants preferred Title Appeal No, 199 of 1964 and the same having been dismissed by the judgment and decree dated september 26, 1964, the present appeal from appellate decree was taken. 6. AT the time of the hearing of the appeal Mr. 5. FROM the determination of the learned trial Court, the plaintiff appellants preferred Title Appeal No, 199 of 1964 and the same having been dismissed by the judgment and decree dated september 26, 1964, the present appeal from appellate decree was taken. 6. AT the time of the hearing of the appeal Mr. N. C. Chakravartty contended firstly that so long the said exparte decree in Title Suit No. 3 of 1960 is not set aside or so long the same remains binding, no determination in favour of the defendant respondent could be made and secondly no issue regarding fraud having been framed, so the determinations as were made by the Courts below on the basis of the allegations of fraud were also unauthorised, baseless and void. He submitted that although allegations of fraud were there in the written statement, the plaintiff was not required or he was not obliged to lead any evidence in rebuttal of those allegations and in fact the plaintiff appellant had no opportunity to meet those allegations in the absence of a specific issue. Apart from the grounds as stated hereinbefore Mr. Chakravartti also argued that onus to prove and establish fraud was misplaced and furthermore, on the question of benami, the learned Courts below have not duly considered the evidence on record. Mr. Shayama Charan Mitter, the learned Advocate for the defendant respondents, on the question whether they were entitled to the orders as made unless the decree in Title Suit no. 3 of 1960 is set aside on the ground of fraud, contended that in the instant case the Courts below were justified in making the impugned judgment and decrees as fraud was duly proved and established in collateral proceedings and furthermore as the fraud as alleged was within the knowledge of the plaintiff appellant. He also contended that fraud in a judgment can be challenged without setting aside the decree. He further contended that under section 44 of the Evidence Act, the judgment in the instant case can also be impeached without even alleging or without a determination on the question of fraud. In support of his contentions Mr. Mitter first relied on the case of Bishunath tewari v. Mst. He further contended that under section 44 of the Evidence Act, the judgment in the instant case can also be impeached without even alleging or without a determination on the question of fraud. In support of his contentions Mr. Mitter first relied on the case of Bishunath tewari v. Mst. Mirchi, reported in a. I. R. 1955 Patna 66 where it has been held that fraud does not make a judicial act or transaction void but only voidable at the instance of the party defrauded. The judicial act may be impeached on the ground of fraud or collusion in an active proceeding for recission by way of suit or application for review. But the judgment may also be impeached in a collateral proceeding in which fraud may be set up as a defence to an action on the judgment or as an answer to a plea of estoppel or res judicata founded upon judgment. Section 44 is very wide and lays down not merely a rule of law relating to evidence but also a rule of procedure as to how the judgment should be impeached. It not merely declares that the judgment which is conclusive against a party may be impeached by such party on the ground of fraud or collusion. It also lays down that the party seeking to impeach it may do that in the very suit or proceeding in which the judgment is proved against him by his opponent. Grammatically, lack of jurisdiction and the taint of fraud or collusion are placed exactly on the same footing in wording of the section. There is therefore no reason why in the case of fraud or collusion any qualification or limitation should be read into the section and not in the case of want of jurisdiction. On the question of section 44 Mr. Mitter further relied on the case of Triboni Mishra and Ors. v. Rampujan A. I. R. 1970 Patna 13 where it has been held following the determination in Bishunath Tewari and ors. v. Mst. Mirchi (supra) that the right as given by the said section has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or decree set aside by bringing regular suit for the purpose. v. Mst. Mirchi (supra) that the right as given by the said section has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or decree set aside by bringing regular suit for the purpose. A decree or order can be challenged on ground of fraud in a collateral proceedings without any suit for setting aside the decree, irrespective of the time when the judgment was delivered or order or decree was passed. 7. APART from the cases as mentioned hereinbefore, Mr. Mitter further relied on the case of Kuraram Datta v. Banomali Patra, A. I. R. 1916 Calcutta 621 for the proportion that a party can rely on fraud even though he has not brought a suit to set aside the decree alleged to have been obtained by fraud in addition to the case of Aswini Kumar samaddar v. Banamali Chakravartty, a. I. R. 1917 Calcutta 612 where the suit brought by a plaintiff without having an earlier decree set aside on the ground of fraud, was held to be maintainable because the plaintiff was entitled under section 44 of the Evidence act, to impeach the same in the said subsequent suit and also to the case of bengal Coal Co. Ltd. v. Balmukunda goenka, A. I. R. 1955 N. U. C. 1068 for the purpose of having an idea about the scope of section 44 of the Evidence act. 8. THUS from the determination as referred to above it is clear that the first ground as urged by Mr. Chakravartty is of no substance and the defendant respondent was rightly found by the learned Courts below to be entitled to have the orders as made with out having the judgment and decree in title Suit No. 3 of 1960 set aside on the ground of fraud. But the second ground of Mr. Chakravartty viz., the learned courts below, without a proper issue on fraud being framed, was not justified to make determinations on fraud seems to us, is of substance. In this case admittedly allegations of fraud were made or raised in the written statement. But no specific issue has been framed. But the Courts below have determined the said allegations of fraud. In this case admittedly allegations of fraud were made or raised in the written statement. But no specific issue has been framed. But the Courts below have determined the said allegations of fraud. Such determination without a proper issue in our view was not only unjustified and improper but the same is contrary to the principles and the object of framing issues before the parties to a proceeding enters the trial. Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Such issues may be issues of fact or issues of law. Every material proposition affirmed by one party and denied by the other should form a subject of a distinct issue. The object of framing issues plays a very important and distinctive roll in a suit. Such object is to direct the attention of the parties to the principal questions on which they are at variance. In a suit what a party has got to prove at the hearing is the existence or non-existence of facts in issue and the same can be done by proof of facts, which are called evidentiary facts. Those evidentiary facts must of course be relevant facts or facts relevant to the facts in issue. Issue are required to be framed for the purpose of having the material points in controversy rightly decided and to bring a finality in the litigation and as such it is the duty of the Court to frame due and proper issues on the basis of materials as referred to in Order XIV Rule 3 of the code of Civil Procedure and while framing such issues, as has been held in Konda v. Waghu, A. I. R. 1950 P. C, 68, the Court must bear in mind that it is an absolute necessity that the determinations in a cause should be found ed upon a case to be found in the pleadings or involved in or consistent with the case as made. As stated herein before issues of law and of fact have got to be framed and such framing of issues under order XIV Rule 2 of the code of Civil Procedure is mandatory. As stated herein before issues of law and of fact have got to be framed and such framing of issues under order XIV Rule 2 of the code of Civil Procedure is mandatory. Unless proper issues are framed the provisions of Order XIV Rules 1 and 2 of the Civil Procedure Code would be frustrated and a party who suffers a judgment on the basis of findings not based on proper issues may have a legitimate grievance to contend that be cause of such non framing of issues he has suffered and he has been denied the opportunity of leading proper evidence for rebutting the relevant facts. Here in the instant case, the plaintiff appellant can thus legitimately contend that in the absence of any specific issue regarding fraud he was not required to lead any evidence rebutting the allegations of fraud and as such he has not led such evidence. It cannot be disputed that the omission to frame an issue on fraud has become fatal in the: instant case and has caused great prejudice to the plaintiff appellant and that has caused failure of justice. So this appeal must be allowed on that ground and should be sent back on remand to the learned trial Court for a retrial after framing the necessary issue on the question of fraud in the following manner : - "was the decree in Title Suit no. 3 of 1960 a fraudulent one and the same was a nullity and as such not binding on Nani Gopal and bakul Rani and thus on the defendants" ? We hold that the framing of the above issue is necessary for an effective and final determination of the master in issue on the pleadings of the parties and the said issue, as contended by Mr. Mitter, we are of the view is not covered by Issue Nos. 3 and 4 as framed. We further direct that the learned trial Court on remand and after reframing the said issue should give opportunities to the parties to lead relevant evidence and then decide the same and also the question of onus to prove fraud and the incidental question of benami. We are further of the view that no interference in this appeal is required in respect of the determinations as made by the learned Courts below on the other issues. We are further of the view that no interference in this appeal is required in respect of the determinations as made by the learned Courts below on the other issues. The appeal is thus allowed on the grounds as indicated above and as such the case is remanded to the learned trial Court to have the necessary determination of the points as indicated above. There will, however, be not order for costs. Let the records be sent down at an early date.