CRP/4018/2015 of Mula Thirupathi Reddy, Vs Sunki Amruthamma, on 31 December 2015

COMMON ORDER:

Aggrieved by the orders dated 31.08.2015 and 24.04.2015in I.A.No.256 of 2015 and in I.A.No.294 of 2015 in O.S.No.7 of2010 on the file of the Additional Senior Civil Judge, Karimnagar,wherein an application made under Section 45 of the IndianEvidence Act and an application under Order 13, Rule 10 ofC.P.C. were allowed, C.R.P.Nos. 4018 and 4508 of 2015 are filed.

Since the issue involved in both the Civil Revision Petitionsfiled under Article 227 of the Constitution of India is one and thesame, they are being disposed of by this common order.

The facts in issue are as under:

The respondent/plaintiff filed O.S.No.7 of 2010 seekingdeclaration of title and recovery of possession of the plaintschedule property. The plaintiff claims to be owner andpossessor of land admeasuring Ac.2.04 gts., in Sy.No.716/A andAc.1.20 gts., in Sy.No.717/C, situated at Nagunoor Village,Karimnagar Mandal and District. The plaintiff’s father by nameDasari Mallaiah was owner and possessor and his name was alsorecorded as pattadar. It is stated that the said land waspurchased by the plaintiff from her father through a registeredsale deed bearing document No.818 of 1970, dated 09.03.1970. The plaintiff along with her husband shifted to Chandurthi and started residing there. Since the parents and brothers of theplaintiff are residing in Nangunoor village, the plaintiff requestedthem to cultivate the said land. After the death of her parents, thebrothers of the plaintiff cultivated the land and used to send theincome generated on it to the plaintiff. About a year back, whenthe plaintiff asked her brothers for partition of her father’s jointproperty, the brothers of the plaintiff denied the same and as suchdisputes arose between them. While things stood thus, theplaintiff came to know that defendant Nos.1 and 2, who arestrangers to her created some false documents and tookpossession of the land. Hence, O.S.No.7 of 2010 came to befiled seeking a declaration of title and recovery of possession ofthe suit schedule property.

A written statement in the said suit came to be filed on13.09.2010, in which the defendants took a plea stating that theypurchased the suit land from Dasari Rajaiah and DasariKeshaiah, who got the said land as their share pursuant to an oralpartition which took place more than 50 years ago. Subsequently, a document bearing No.1552/1973 dated03.07.1973 came to be executed in favour of defendant No.1. Itis stated that there were disputes between the plaintiff on onehand and one Deva Dattam Reddy, mother of plaintiffD.Chandramma and Dasari Laxmaiah on the other. It is averredthat Devadattam Reddy obtained a collusive decree inO.S.No.175 of 1972 in respect of the suit land and started raisingdisputes with defendant No.1. In view of the same, the suit landwas taken over by the Tahsildar as per the orders of the RevenueDivisional Officer in Cr.M.C.No.49/1974 under Section 145Cr.P.C. Later, defendant No.1 filed O.S.No.78 of 1977 on the fileof the District Munsiff, Karimnagar against Deva Dattam Reddy, Plaintiff, her mother and brother, seeking declaration of title andperpetual injunction and also for declaration that the sale deedNo. 818/1970 dated 10.03.1970 is void and ineffective. Finally,O.S.No.78 of 1977 ended in a compromise and the suit wasdecreed in terms of the compromise on 30.06.1977. DefendantNo.1 therein was declared as owner and possessor of the suitland and since then he is in possession over the said property.

Though the issue of compromise in O.S.No.78 of 1977 wasreferred to in the written statement filed in the year 2010, thepetitioner herein filed I.A.No.256 of 2014 requesting the Court tosummon the documents with regard to compromise petition inO.S.No.78 of 1977 and vakaltnama filed on behalf of defendantNo.2 therein, on the ground that she never attended the Court,engaged a counsel nor filed any compromise petition and all thesaid documents filed therein are forged. The said application wasallowed on 24.04.2015. Later the petitioner filed I.A.No.256 of2015 under Section 45 of the Indian Evidence Act, for sending thedocuments, which were called for in I.A.No.294 of 2014, to anexpert. After analysing the material available on record, the trialCourt allowed the said petition. Challenging the orders passed inboth the I.A.s, these two Civil Revision Petitions are filed.

Sri M.Rajamalla Reddy, learned counsel appearing forpetitioners in both the revisions would submit that the request ofthe petitioners to send these documents to an expert at thisbelated stage and to compare the thumb impression made in theyear 1977 with the thumb impression now made cannot bepermitted. He further submits that since the decree in O.S.No.78of 1977 has become final, the plaintiff is bound by the contents ofthe decree and is estopped from disputing the thumb impression on the vakalathnama and compromise petition. He also submitsthat in the year 2010 itself the petitioners have filed writtenstatement referring to the compromise decree passed inO.S.No.78 of 1977, but no steps are taken for calling of thedocuments and sending the documents to an expert till 2015. It ishis case that even in chief evidence, the plaintiff did not deny theaverments made in the written statement with regard tocompromise and the compromise decree.

On the otherhand, learned counsel for the respondent/plaintiff would submit that the respondent came to know about thedecree only after filing of written statement and immediatelythereafter petitions came to be filed summoning and sending thedocuments to an expert. Relying upon the judgment of the ApexCourt in A.V.Papayya Sastry and others v. Government of Andhra Pradesh and others[[1]]he submits that when any decreeis obtained by fraud, none prevents the defendants from sendingthe documents to an expert in any subsequent proceedings. Hefurther submits that no prejudice would be is caused to thepetitioners if these documents are sent to an expert.

The un-disputed facts which are culled out from thematerial on record are as under:

One Mula Tirupathi Reddy, who is the first petitioner hereinfiled O.S.No.78 of 1977 on the file of the District Munsiff,Karimnagar seeking declaration of title and perpetual injunctionover the schedule property and also seeking a declaration thatthe sale deed document No.818 of 1970 dated 10.03.1970 said tohave been executed by the father of the respondent herein in herfavour as void and ineffective. On 30.06.1977 the District Munsiff, Karimnagar, passed the following order:

“Sri V.Jagga Rao filed vakalat for all defendants. Plaintiff and all defendants present and filed jointcompromise petition. Compromise is recorded andpetition is allowed insofar as the subject matter ofthe suit is concerned. In the result, the suit isdecreed without costs in terms of the compromise.”

Conclusion

Thereafter, in the year 2010 ie. 33 years later, therespondent herein filed O.S.No.7 of 2010 on the file of theAdditional Senior Civil Judge, Karimnagar, seeking declaration oftitle and recovery of possession of land admeasuring Ac.2.04gts., in Sy.No.716/A and Ac.3.24 gts., in Sy.No.717/C situated atNagunoor Village, Karimnagar Mandal and District which wassubject matter of O.S.No.78 of 1977. In the said suit, thepetitioners herein filed written statement denying the avermentsmade in the plaint and also narrated the manner in which theycame into possession. The trial in O.S.No.7 of 2010 commencedand the respondent herein ie. Plaintiff filed her chief affidavit on10.02.2012 along with Exs.A1 to A8. Later, she was crossexamined on 07.08.2012 and she was further cross examined on15.11.2012. One Sunki Rajaiah @ Rajeshwar Rao was examinedas PW.2. After completing the evidence of plaintiff, the firstdefendant got himself examined as DW.1 and he filed his chiefaffidavit on 30.01.2014. At that stage, the respondent herein filedI.A.No.294 of 2014 for summoning the documents i.e.compromise petition and vakalthnama in O.S.No.78 of 1977. After the said application was allowed, the respondent herein filedI.A.No.256 of 2015 for sending those documents to an expert forcomparison of the thumb impression.

The averments in O.S.No.7 of 2010 would show that her brother denied to give the share and as such disputes arosebetween them. It was also stated that the plaintiff came to knowthat defendant Nos.1 and 2 created fabricate documents and tookpossession over the said land. Though the defendants in theirwritten statement filed in the year 2010 referred to O.S.No.78 of1977 and the compromise arrived at therein, the chief affidavit ofthe plaintiff which was filed in the year 2012 is silent on the saidaspect. Even in the I.A. filed for sending the documents to theexpert, the plea of fraud was never raised. For the first time, thetheory of fraud came to be introduced in this revision.

The counsel for the petitioners submits that any decree orjudgment which was obtained by playing fraud is non-est in theeye of law. In support of his plea, he relied upon the judgment ofthe Apex Court in Papaiah Sastry case (1 supra).

It would be appropriate to refer to few paragraphs in thejudgment of the Apex Court in Papaiah Sastry case (1 supra) ,which reads as under:

“22. It is thus settled proposition of law that a judgment, decree ororder obtained by playing fraud on the court, tribunal or authority is anullity and non-est in the eye of law. Such a judgment, decree ororder by the first court or by the final court has to be treated asnullity by every court, superior or inferior. It can be challenged inany court, at any time, in appeal, revision, writ or even in collateralproceedings.

26. Fraud may be defined as an act of deliberate deception with thedesign of securing some unfair or undeserved benefit by takingundue advantage of another. In fraud one gains at the loss ofanother. Even most solemn proceedings stand vitiated if they areactuated by fraud. Fraud is thus an extrinsic collateral act whichvitiates all judicial acts, whether in rem or in personam. Theprinciple of “finality of litigation” cannot be stretched to the extent ofan absurdity that it can be utilised as an engine of oppression bydishonest and fraudulent litigants.”

There is no dispute that fraud vitiates everything. It is alsonot in dispute that the fraud avoids all judicial acts, ecclesiasticalor temporal. From the judgment of the Apex Court referred toabove, it is clear that any judgment, decree or order obtained byplaying fraud on the Court is non-est in the eye of the law and thedecree alleged to have been obtained by playing fraud can bechallenged in any Court at any time in appeal, revision, writ or inany collateral proceedings. But in order to establish fraud onehas to first plead fraud in obtaining the decree in O.S.No.78 of1977 and then establish the same by leading evidence. No sucheffort was made in the instant case. In fact such a plea wasnever raised even in the I.A. filed before the trial Court. Further,merely because the documents in O.S.No.78 of 1977 aresummoned, it does not by itself mean that they should be sent toan expert on an allegation of fraud raised in the civil revision. Asstated above, the plea of fraud is beyond the scope of thecontents of the plaint.

One fact which should also to be noted is that till date nosteps are being taken by the respondent herein to challenge thedecree dated 30.06.1977 passed in O.S.No.78 of 1977 on the fileof the District Munsiff, Karimnagar. The said decree disclosesthat the respondent herein, who was defendant No.2 in the saidsuit, was represented by a counsel and all the defendants whowere present before the Court filed a joint compromise petition,which was allowed. No plea of fraud was raised by any of theother defendants in the said suit. Therefore, the plea of therespondents herein that there was fraud in obtaining the decree inO.S.No.78 of 1977 cannot be accepted.

For the aforesaid reasons, I am of the view that the order of the trial Court warrants interference and accordingly CivilRevision Petition No.4018 of 2015 is allowed by setting aside theorder dated 31.08.2015 passed in I.A.No.256 of 2015 in O.S.No.7of 2010 while C.R.P.No.4508 of 2015 stands dismissed. Noorder as to costs.

As a sequel thereto, Miscellaneous Petitions pending if anyin this Civil Revision Petition, shall stand closed.

_________________________

JUSTICE C.PRAVEEN

KUMAR

31.12.2015gkv

[1](2007) 4 SCC 221