VQW-ll^ftf' 'i'i'Mi- y-ffi~a:c'^'-:^:''ss?^s'y a! IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR SCOND APFEAL N0. n-^^ /2007 .^si w Bhagwandeen Bareth S/o -<Dhaniram Bareth, aged 57 years, R/o village Mangla, Tahsil and District BUaspur [C.G.]. VERSUS 1. (Eakhan Lal Bareth S/o Trilochan Prasad Bareth, aged 57 years. 2. /deevan Lal Bareth, S/o TrUochan Prasad Bareth, aged 55 years. 3.^8'mt. Ahilya Bai D/o Maniram ' Bareth, and W/o Mayaram Bareth, aged 75 years. .V'7.-o--'<-^t«-^ /- 4.-/'Arjun Bareth S/o Laxman Bareth, "A"^"sl*n^Trt^::-"" /' aged 48 years' 5. <Sahdev Bareth S/o LaxmEUi Bareth, aged 41 years. <7 %_ Smt. Jala Bai Bareth D/o Bhimsen ^ Bareth, aged 30 years. z 7.C^'Smt. Triveni Bai Bareth, D/o Laxman Bareth, aged 35 years. 8. ^Rambhau Bareth S/o Dhaniram Bareth, aged 50 years. All resident of yillage Mangla, Tahsil and District Bilaspur [C.G.] 9. State of Chhattisgarh, through : Collector, Bilaspur [C.G.]. APPEAL U/S 100 OF THE CODE OF CIVIL PROCEDURE ll SmT VALUED AT RS. 2000/-. COURT FEE PAID2007- 1ii:liti.li!!!lhn-:'^>.L"' '•*•:\ \^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mish^ra Second Appeal No.225 of 2007 Bhagwandeen Bareth versus Lakhan Lal Bareth and others ORDER Postfor 10-9-2010 Sd/- Prashant Kumar Mishra Judge fef-^\ "'"» i ^.J^ n' HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Second Appeal No.225 of 2007 Appellant Respondents versus Bhagwandeen Bareth Lakhan Lal Bareth and others Present: Shri Ravish Verma, counsel for the appellant. Shri Ashok Vaishnav, counsel for respondent No.1. Shri A.D.Shrivastava, counsel for respondent No.2. Ms. Shashi Bareth, counsel for respondents No.4 and 5. Shri Sanjeev Agrawal, Panel Lawyer for the State/respondent No.9. No one appears for other respondents. Second Appeal under Section 1 00 of the Code of Civil Procedure ORDER (Passed on jO^ September, 2010) This second appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the defendant Bhagwandeen Bareth. 2. The suit preferred by respondents No.1 and 2/plaintiffs for a declaration that the plaintiffs are the exclusive owner in possession of the suit land and for a further declaration that the judgment and decree dated 24-10-1997 in Civil Suit No.387-A/94 with respect to Khasra No.882 and 883 is illegal and void, was dismissed by the trial Court, however, the first appeal preferred by the plaintiffs/respondents No.1 and 2 has been allowed by the impugned judgment and decree dated 8-5-2007 by passing a decree that the fplaintiffs are the exclusive owner of land bearing Khasra No.882 t '•• ,„?">'.. '"' I n? (part) area 0.10 acre with boundaries mentioned in the decree belongs to the plaintiffs and to the said extent the judgment and decree dated 24-10-1997 in Civil Suit No.387-A/94 is void and not binding on the plaintiffs. 3. The case of the plaintiffs, in short, was that Maniram, Dhaniram, Trilochan and Laxman were four real brothers and had partitioned the family property in between them about 50 years back. In the said partition, the suit land along with other lands were allotted to the plaintiffs' father Trilochan and after death of Trilochan, the plaintiffs are in possession of the suit land and the defendants have no right, title or interest in the suit property. In spite of the partition, the revenue records remained joint and taking benefit of the said, Laxman tried to interfere in some part of the land belonging to Ahilyabai, daughter of Dhaniram, on which the said Ahilyabai (defendant No.3 in the present suit) preferred a suit on 24-2-1978. In the said suit also, Ahilyabai made a statement that a partition has already taken place in between the four brothers and the respective shares allotted to the four brothers were clearly mentioned in paragraph 3 of the plaint. The said suit eventually came to be decided by the judgment and decree dated 24-10-1997 bearing Civil Suit No.387-A/94 (hereinafter referred to as 'the earlier suit'). 4. As there was no dispute in the earlier suit about the share allotted to Trilochan, he did not participate in the proceedings, however, the defendant/appellant herein Bhagwandeeo, on 17-2- 1999, started proclaiming that the suit has been decided in his favour and the present suit land belongs to him. 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The appellate Court, by the impugned judgment and decree, has held that the earlier judgment and decree was obtained by fraud, therefore, the said judgment and decree is not binding on the plaintiffs to the extent of land of Khasra No.882 (part) area 0.10 acre as per the boundaries mentioned in the decree. 8. Learned counsel for the appellanVdefendant Bhagwandeen has argued that the first appellate Court has committed an error of law by allowing the appeal ignoring the settled principle that the judgment and decree passed in the earlier suit, wherein Trilochan is a party, is binding between the parties and the present suit is barred under the principle of resjudicata. He has relied on Ittyavira Mathai vs. Varkey Varkey and another, AIR 1964 SC 907, Madan Lal (dead) by his legal representative vs. Sunder Lal and another, AIR 1967 SC 1233, Jugraj Singh and another vs. Jaswant Singh and others, AIR 1971 SC 761, Bijendra Nath Srivastava (Dead) through LRs. vs. Mayank Srivastava and others, AIR 1994 SC 2562 and Muni Lal vs. The Oriental Fire & General Insurance Company Ltd. and another, AIR 1996 SC 642. 9. I have heard learned counsel for the appellant at length and have perused the record. 10. In paragraph 3 of the plaint of the earlier suit, the plaintiff Ahilyabai has mentioned the extent of share allotted to each of the four brothers including Trilochan. In the said description, Khasra ..^SgM'*^ / ^^ y 1 ! "m^ y ll'*. -». X* .', / v No.882 area 0.10 acre is shown to be allotted to Trilochan, who was arrayed as defendant No.5 in the earlier suit. The prayer made in the plaint was to the effect that the plaintiff Ahilyabai be granted a decree of partition with respect to her share as mentioned in paragraph 3 of the plaint together with decree of possession and permanent injunction. During pendency of the earlier suit, Bhagwandeen and Rambhau, both sons of Dhaniram, were impleaded as defendants No.6 and 7, respectively. No counter claim was filed by the said defendants. Even if it is taken that Dhaniram was arrayed as plaintiff No.2 at the time of filing of the suit, the prayer made by him was for passing a decree in terms of the partition mentioned in paragraph 3 of the plaint. Thus, no prayer was made in the plaint or in any other manner so as to pass a decree in favour of Bhagwandeen declaring him to be an owner of the present suit land. 11. There appears to be a collusion between Ahilyabai and Bhagwandeen when Trilochan lost interest in the suit probably for the reason that in the plaint itself averment has been made that Khasra No.882 area 0.10 acre has been allotted to him and a decree was prayed in terms of the pleading made in paragraph 3 of the plaint and that the prayer in the plaint was only for a declaration of title of the plaintiff without affecting the property belonging to other share holders, however, when, ultimately, the decree was passed, Khasra No.882 area 0.10 acre was declared in favour of ihagwandeen. The present plaintiffs became aware of the said fraud when Bhagwandeen started proclaiming that the suit land ^^s—- .;/ '< I?' . '•^SK- belongs to him. By the time, the present plaintiffs could initiate action for filing appeal, it was already barred by limitation and the first appeal was eventually dismissed as such. The present plaintiffs thereafter filed the present suit. 12. It is settled law that a judgment and decree obtained by fraud and collusion is a nullity. In S.P.Chengalvaraya Naidu (Dead) by LRs. vs. Jagannath (Dead) by LRs. and others, (1994) 1 SCC 1, the Hon'ble Supreme Court has held in paragraph 1 of the report thus: "1. "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the setfled proposition of law that a judgment or decree obtained by playing fraud on the court isa nullity and non est in the eyes of law. Such a judgment/decree — by the first court or by the highest court — has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." 13. In Regional Manager, Central Bank of India vs. Madhulika Guruprasad Dahir and others, (2008) 13 SCC 170, the Hon'ble Supreme Court has held in paragraphs 15 and 16 ofthe reportthus: "15. An act of deliberate deception with a design to secure something, which is otherwise not due, tantamounts to fraud. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. (See R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105, Bank of India v. Avinash D. Mandivikar, (2005) 7 SCC •^^;.;'i:';<~'::S:<"\:;:''''rB%S^-^^& !';^S^:^^'S-*^i^^:r^^^^^B?^®'^iS^ :si€""^i~f~ y ^ ^ ^-^ 690, BHEL v. Suresh Ramkrishna Burde, (2007) 5 SCC 336, Der/yv. Peek, (1889) 14 AC 337, Ram Preeti Yadav v. U.P. Board ofHigh School and Intermediate Education, (2003) 8 SCC 311 and Bhaurao Dagdu Paralkarv. State of Maharashtra, (2005) 7 SCC 605.) 16. In Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319, this Court had observed that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine." 14. In viewof the law laid down by the Hon'ble Supreme Court in the above referred judgments and when the said principles are applied to the facts of the present case, this Gourt would reach to the conclusion that when a decree has been obtained by fraud, i.e., by obtaining a decree which was never prayed in the plaint and which was never a subject matter of the //s, the party, who has obtained the undue benefit, has committed fraud and thus the principle of waiver and estoppel which is the genus and the principle of res judicata being a species of the said doctrine would not be applicable or attracted. These principles are applied in cases which have been decided between the parties when the matters were contested on merits and no mischief has been played by a party to the litigation. The doctrine wouldnot be applicable to perpetuate a fraud or collusion played by the beneficiary. As held by ttie Hon'ble Supreme Court in S.P.Chengalvaraya Naidu (Dead) by LRs. vs. Jagannath (Dead) by LRs. and others (supra), the judgment and decree obtained by playing fraud is a nullity and non est in the eyes of law and has to be treated as such by every Court and that it can /'M i':^:.^-." :ll<& ^sMSK '^^•^lr" 8 ^ 5 be challenged in any Court even in collateral proceedings. Thus, the plea of resjudicata is not available to the appellant. 15. Nosubstantial question of law arises for determination in this second appeal, which fails and is hereby dismissed. Gopal Sd/- prashant Kumar Mishra Judge