Judgment S.B. Sinha, J. This writ petition involves an interesting question of law. The facts of the case are undisputed and lie in a very narrow compass. Plot Nos. 560, 563, 565, and 175 appertaining to khatian No. 108 measuring an area of 3.31 acres of village Agra, P.S. Tamar was recorded in the name of Anand Mundari and Sukhlal sons of Budhu. It is alleged that by a registered deed of surrender dated 20.6.1950, the disputed lands were surrendered and thereafter the same were settled by a registered deed dated 21.6.1950 executed by the ex-landlord in favour of the petitioners. One Mahadeo Munda, father of respondent no. 5 earlier filed an application in terms of the provisions of section 71A of the Chotanagpur Tenancy Act, (in short, the Act) wherein it was contended that the aforementioned surrender and settlement being a part of the same transaction, the same was hit by the provisions of section 46 of the said Act. The application filed by the aforementioned Mahadeo Munda was however dismissed. The said Mahadeo Munda did not prefer any appeal against the aforementioned judgment dated 15.10.1974 as contained in Annexure-1 to the writ petition. 2. Respondent no. 5, however, filed another application on 3.10.78 for restoration in-spite of dismissal of the earlier application being S.A.R. Case No. 199 of 1974 in the court of Sri K.P. Yadav who by his order dated 17.2.1979 rejected the said petition on the ground that the said petition was barred under the principles of res-judicate. An appeal was preferred by respondent against the aforemention judgment and the appellate court also by a judgment dated 7.12.1979 dismissed the said appeal on the ground that the said case is barred under the principles of res-judicata. However, respondent no.5 filed a revision application challenging the aforementioned judgment therein in terms of Section 217 of the said Act, before respondent no. 2 who by the impugned order dated 2.4.1981 and as contained in Annexure-4 to the writ petition held that the earlier order dated 15.10.1974 passed be the authority under the provisions of the said Act, was not barred under the principles of res judicata. 3. Respondent no. 2 while passing the aforementioned judgment relied upon a Single Bench decision of the Kerala High Court in Belappan Vs. Peter Thomas (A.I.R. 1979 Kerala 194). 3. Respondent no. 2 while passing the aforementioned judgment relied upon a Single Bench decision of the Kerala High Court in Belappan Vs. Peter Thomas (A.I.R. 1979 Kerala 194). The learned Single Judge of the Kerala High Court in the aforementioned judgment after considering various other decisions held that the principle of res-judicata is outside the region of fraud or collusion. The said learned Judge further held that in view of the provisions of section 44 of the Evidence Act, when a judgment is put in evidence and is relevant under sections 40, 41 or 42 of the Evidence Act, it is open to the party against whom it is offered to avoid its effect, On any of the grounds specified in the section without having it set aside: namely (a) the in-competency or want of jurisdiction of the court by which the judgment was passed; (b) that it was, obtained by fraud and (c) that it was obtained by collusion. The said leaned court further held that by reason of the provisions contained in Section 44 of the Evidence Act, the same acts as an exception to section 11 of the Code or Civil Procedure. Respondent no. 2 while relying upon the aforementioned decision as also the provision of section 44 of the Evidence Act, held that as the aforementioned surrender and settlement were part of the same transaction and would amount to a transfer and such transfer having been obtained fraudulently, the earlier judgment dated 15.10.1974 (Annexure-1) would not operate as resjudicata. 4. Mr. P.K. Banerjee, learned counsel appearing for the petitioner submitted that the aforesaid decision of the Kerala High Court has no application in the facts and circumstances of the case. He submits that the respondent no. 5 being the son of Mahdeo Munda was all along aware and/or deemed to be aware about the application filed by Mahadeo Munda in the earlier case and in such a situation it was obligatory on his part to make necessary pleadings of fraud by giving full particulars thereof. Not only there was no pleading giving particulars of any fraud or collusion, but, in fact, the respondent no. 5 did not make any averment whatsoever in his application under section 71A, of the Act, relating to passing of the earlier order as contained in Annexure-1 to the writ petition. Not only there was no pleading giving particulars of any fraud or collusion, but, in fact, the respondent no. 5 did not make any averment whatsoever in his application under section 71A, of the Act, relating to passing of the earlier order as contained in Annexure-1 to the writ petition. Learned counsel further cited a decision of a learned Single Judge of the Madras High Court in V. Thiagarajan. Vs. Md. Umar Syed and another reported in A.I.R. 1978 Madras 223. In the said judgment, the learned Judge held that section 44 relates to procedure and the same does not confer any right on the party. The learned Judge further held that if a judgment is sought to be relied upon in a proceeding it is open to the party to contend that the judgment sought to be relied on was obtained by fraud. It is far from saying that a aside a decree court has jurisdiction to set under that section at the instance of one of the parties to the judgment saying that it was obtained by fraud. 5. Section 44 of the Evidence Act, read as follows : "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 sections 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." For the purpose of disposal of this case, sections 41 and 42 of the Evidence are not relevant. The only relevant provision is section 40 of the Evidence Act. Section 40 of the Evidence Act, reads as follows :- "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 cognizance of such suit, or to hold such trial." 6. From a perusal of the aforementioned provisions of sections 40 and 44 of the Evidence Act, it appears that section 44 is an exception to section 40 of the said Act. From a perusal of the aforementioned provisions of sections 40 and 44 of the Evidence Act, it appears that section 44 is an exception to section 40 of the said Act. Section 44 deals with two situations-When the judgment has been passed by a court which had no jurisdiction to pass the same as a result where of the judgment itself would become a nullity and in such a case the judgment would be nonest in the eye of law, and when such a judgment is relied upon by a party, it would be open to the other party to show that such Judgment being nonest in the eye of law, the same is not a relevant fact for the purpose of Sections 40, 41 and 42 of the Evidence Act, and is void. However, when a judgment is produced as a relevant fact by any party which is sought to be assailed by the other party on the ground of fraud or collusion, such judgment which is obtained by fraud or collusion is not void but a voidable one. Who a judgment is impugned as being a voidable on the ground of existence of fraud, the particulars of fraud or such other particulars which are necessary for the purpose of rendering it voidable, must be pleaded and proved. 7. In this case, neither there has been any such pleading of Fraud nor the petition filed by respondent no. 5 discloses any Respondent no. 5 also did not adduce any evidence to show that the earlier judgment as contained in Annexure-1 to this writ petition was obtained by fraud or collusion. 8. However, in my opinion, respondent no. 2 completely misdirected itself in passing the impugned order. In terms of the provisions of section 71A of the Chotanagpur Tenancy Act, an order for restoration of a land can be passed only if one or the other condition precedent mentioned therein exists, namely (a) that a transfer has been made by a member of scheduled tribe community; (b) such transfer has been made in violation of the provisions of section 46 or any other provisions of the Chotanagpur Tenancy Act, or (c) such transfer has been obtained by any fraudulent method. 9. 9. From a perusal of section 71A of the Chotanagpur Tenancy Act, it would, therefore, appear that the question as to whether a transfer has taken place by any fraudulent method or not is itself a question which is required to be posed and answered. Evidently when the father of respondent no. 5, Mahadeo Munda filed an application tinder section 71A of the Chotanagpur Tenancy Act, in the year 1974, it was obligatory upon him to make such allegation of fraud. From a perusal of Annexure-1 it appears that the said petition under section 71A was dismissed the said order might have been rightly or wrongly passed but it is a well known principle of law that a decision whether passed rightly or wrongly would operate as res judicata in a subsequent proceeding if the issues raised in both the proceedings were same. It is also well settled principle of law that even an issue which could and ought to have been raised by a party to a lis but has not been raised, the said party could not be permitted to raise that question again in a subsequent proceeding. The aforementioned principle engrafted in section 11 of the Code of Civil Procedure and/or explanation appended thereto. In any event the general principle of resjudicata would be applicable to a proceeding under section 71A and in view of the fact that an issue of fraud was either raised or could have been raised by the father of respondent no. 5 in the earlier proceedings; respondent no. 5 cannot be permitted to raise the said question again in the subsequent proceeding and such an application would evidently be barred under the principles of resjudicata and/or constructive resjudicate and/or the principles analogous thereto. 10. In my considered opinion, respondent no. 2 completely misdirected itself in passing the impugned order insofar as it failed to take into consideration the basic difference of a fraud practiced upon a party which itself may be subject matter of a lis and a fraud which has been practiced upon a court. On a plain reading of the provisions of section 44 of the Evidence Act, I it is clear that it is applicable only in such cases where a judgment has been obtained I by fraud i.e. by practicing fraud upon the court. On a plain reading of the provisions of section 44 of the Evidence Act, I it is clear that it is applicable only in such cases where a judgment has been obtained I by fraud i.e. by practicing fraud upon the court. In the case in hand, it was not accused nor suggested that the order as contained in Annexure-1 was obtained by fraud or collusion. What was contended was that fraud was practiced by the petitioners upon the father of respondent no. 5 in obtaining a transfer which, as stated hereinbefore, was or could have been by itself an issue in the earlier proceeding. Such an issue whether rightly or wrongly decided would operate as resjudicate and/or the principles analogous thereto. 11. It is now well settled that general principle or resjudicata applies to all proceedings. The provisions of the Chotanagpur Tenancy Act, particularly section 71A thereof lays down a complete procedure. The orders passed under the aforementioned provisions are executable ones. In view of the fact that no rule has yet been framed by the State of Bihar in terms of section 264 of the Chotanagpur Tenancy Act, laying down the procedure in respect of a proceeding under section 71A of the Chotanagpur Tenancy procedure laid down under the Civil Procedure shall apply Act, the Code of in view of the fact that the provisions of Code of Civil Procedure also applies in relation to a proceeding under Section 71A of the Chotanagpur Tenancy Act, the father of respondent no. 5 could have brought on record in the earlier proceeding to show as to how and in what manner, the surrender made by him to the landlord and the subsequent settlement made by the landlord in favour of the petitioner was done fraudulently, However, in the instant case, even that question does not arise in view of the fact that the learned Commissioner proceeded on the basis that the surrender made by the father of respondent no. 5 was violative of sub-section (1) of section 72 of the Chotanagpur Tenancy Act, as a slim of Ks. 1800/- was paid to him by the landlord. He further held that the ex-intermediary made a settlement on the following day for a Salami of Rs.1900/- and made a profit of Rs.100/-. 12. 5 was violative of sub-section (1) of section 72 of the Chotanagpur Tenancy Act, as a slim of Ks. 1800/- was paid to him by the landlord. He further held that the ex-intermediary made a settlement on the following day for a Salami of Rs.1900/- and made a profit of Rs.100/-. 12. In view of the fact that the learned Commissioner has not attributed any Act, of fraud on the part of the petitioners in obtaining the lands but has really attributed a motive of profit only upon the ex-intermediary, the same clearly goes to show that there is not even any finding that any fraud was practiced by she petitioner upon the father of respondent no. 5. However, in any event, in view of my findings as recorded hereinbefore that the provisions of section 44 of the Evidence Act, has no application whatsoever in the facts and circum9tances of this case. I have no other option but to quash the order dated 2.4.1981 passed by respondent no. 2 and as contained in Annexure-4 to this writ petition and I hold that the earlier order dated 15.10.1974 as contained in Annexure-1 to the writ petition shall operate as resjudicata to the subsequent proceeding. 13. In the result, this writ petition is allowed. The order dated 2.4.1981 as contained in Annexure-4 is quashed. Let an appropriate writ be issued accordingly. In the circumstances of the case, however, there will be no order as to costs. Application allowed.