JUDGMENT

1. This is an appeal by one of the defendants who has been unsuccessful in both the lower Courts. The facts of the case as found by the learned District Judge of Fyzabad are that two brothers, Deshpati Singh and Badal Singh, owned a five biswas share in mohal Deshpati Singh in village Para. On 13th March 1919, Badal Singh sold his half share to one Sheo Dayal Singh. This sale deed was the subject of a suit for pre-emption instituted by Sarju Tewari. The suit was decreed on 15th November 1928, and formal delivery of possession was made in favour of Sarju through Court. Before the execution of the sale deed dated 13th March 1919 Badal Singh appears to have executed two other deeds. One of these is a deed of gift dated 13th February 1917 in favour of his wife, Kewal Kuar, in respect of fifteen bighas of land out of his share. In a suit brought by Deshpati Singh, the deed of gift dated 13th February 1917, was held to be fictitious. The other deed was a deed of mortgage (Ex. B-1) dated 6th October 1917 in favour of his nephew, Ram Jasan. On 23rd June 1924, Ram Jasan executed a sale deed of his mortgagee rights in favour of Raja Yasin Ali Khan.

2. The suit which has given rise to the present appeal was instituted by Sarju Tewari for possession of the property in respect of which he had obtained the pre-emption decree, on. the allegation that the mortgage deed Ex. B-1 and the sale deed Ex. A-1 were both fictitious and without consideration. The learned District Judge has found that in spite of the execution of the mortgage deed Ex. B-1 and the formal delivery of possession in execution of the pre-emption decree, Badal Singh has all along remained in possession of the property in suit. He has also found that both the deeds Ex. B-1 and A-1 are fictitious, collusive and without consideration, and that they are therefore not binding on the plaintiff. The plea raised by Raja Muhammad Yasin Ali Khan about his being entitled to protection under Section 41, T.P. Act, has been repelled on the ground that he is not a bona fide purchaser for value. The finding of the learned District Judge is that the sale deed Ex. A-1 is without consideration, and that the defendant Muhammad Yasin Ali Khan made no inquiries when he obtained the sale deed. It has also been held that Article 91, Lim. Act, does not apply to the case, and the plaintiff was not bound to have the deeds Exs. B-1 and A-1 set aside in order to entitle him to get the relief of possession.

3. The learned Counsel for Raja Muhammad Yasin Ali Khan, defendant-appellant, has frankly stated before us that lie is not in a position to question the findings of the lower appellate Court about Badal Singh having all along remained in possession and the deeds Exs. B-1 and A-1 being fictitious and without consideration, because of their being findings of fact. The only contention urged by him is that the suit was barred by Article 91, Lim. Act. Reliance has been placed upon the decision in Janki Kunwar v. Ajit Singh, (1888) 15 Cal 58and Rampal Singh v. Balbhaddar Singh, (1903) 25 All 1. Both these cases are cases of voidable transfers made by the plaintiff himself. It was held and, if we may respectfully say so, quite rightly, that in order to recover possession in such cases it was necessary for the plaintiff to get the deed of transfer cancelled. In the present case the transfers, as stated before, have been held to be fictitious and sham transactions. They were therefore void and the plaintiff was entitled to ignore them. The case is fully covered by the decisions of their Lordships of the Judicial Committee in Petherpermal Chetty v. Muniandy Servai, (1908) 35 Cal 551, and a Bench of this Court in Parkash Narain v. Birendra Bikram Singh, AIR 1931 Oudh 333. In the first of these cases it was held by their Lordships that an inoperative instrument does not bar the plaintiff's right to recover possession of his land, and that it is not necessary for him to have it set aside as a preliminary to