*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + Second Appeal No.203 of 2010 %23-03-2011 # G. Basheer Ahamed ..Appellant And $ G. Masood Ahamed ..Respondent !Counsel for the appellant: Sri B. Vijaya Bhasker ^Counsel for respondent . : Sri K. Suresh Reddy < Gist: > Head Note: Citations: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.203 of 2010 ORDER: The respondent filed O.S.No.111 of 1994 in the Court of Principal Junior Civil Judge, Adoni, against the appellant for the relief of declaration, to the effect that the decree obtained by the appellant in R.C.C.No.2 of 1994, against one Sri J. Venkoba Rao is vitiated by fraud, misrepresentation and not binding upon the respondent. It was pleaded that the suit schedule property was purchased by the father of the respondent through a document dated 30-03-1967, under Ex.A-1, from the father of the appellant, who, in turn, purchased the property on the same day, under Ex.A-2. It was pleaded that the property was given on lease to Sri Venkoba Rao, and taking advantage of their absence, the appellant herein filed RCC No.2 of 1994 in the Court of Principal Junior Civil Judge, Adoni and obtained ex parte decree. The appellant opposed the suit by filing written-statement. It was stated that Ex.A-1 is a fraudulent document, and that neither the respondent nor his father had any title over the land. Other grounds were also urged. An objection was raised, as to the maintainability of the suit, on the ground that the respondent is not a party to the RCC. The trial Court decreed the suit by making an observation to the effect that the respondent is the owner of the property. The appellant filed A.S.No.22 of 1997 in the Court of Senior Civil Judge, Adoni. The appeal was allowed and the judgment and decree passed by the trial Court was set aside, mainly on the ground that the relief of declaration of title was granted, though there was no such prayer in the plaint. The matter was remanded to the trial Court. After remand, the respondent got amended the plaint and the relief of declaration of title was incorporated. Fresh oral evidence was adduced on the additional issues, that were framed by the trial Court. The suit was decreed, as prayed for, through judgment dated 17-04- 2000. The appellant filed A.S.No.16 of 2006 in the Court of Senior Civil Judge, Adoni. The appeal was dismissed on 10-08-2006. Hence this Second Appeal. Sri B. Vijaya Bhasker, learned counsel for the appellant submits that the respondent recognized the title of the father of the appellant, vis-à-vis the property, through Ex.A-2, and it is just unimaginable that on the same day, on which the property was purchased by the father of the appellant, under Ex.A-2, it was sold in favour of the father of the respondent, under Ex.A-1. He further submits that the trial Court and lower Appellate Court have committed an error in recording the finding on the genuineness and proof of Ex.A-1, by undertaking comparison of signatures, by themselves. Learned counsel further contends that, relief of setting aside the decree in RCC No. 2 of 1994 could not have been granted, since the respondent was not a party to these proceedings. Sri K. Suresh Reddy, learned counsel for the respondent, on the other hand, submits that the second appeal is not maintainable against concurrent findings of fact. He submits that Ex.A-1 was proved by examining the person, who figured as a witness in the document, and hardly there was any difference in the signatures of the father of the petitioner, that were put on Exs.A-1, and A-2. He further submits that the document being more than 30 years old, the presumption provided for under the Indian Evidence Act gets attracted. The suit, when it was initially filed, was only for the relief of declaration, to the effect that the decree in RCC No.2 of 1994 is vitiated by fraud and misrepresentation. The trial Court framed only two issues, touching upon the controversy, viz., 1. Whether the order in R.C.C.2/94 is obtained by defendant by fraud? 2. Whether the plaintiff is entitled for declaration, as prayed for? The suit was decreed by making an observation to the effect that the respondent proved his title to the property. That was found fault with by the Appellant Court, when the appellant filed A.S.No.22 of 1997, and the matter was remanded to the trial Court. After remand, the respondent got the plaint amended, and the relief of declaration of title was incorporated. This necessitated recasting of issues, as under: 1. “Whether the plaintiff is entitled for declaration of right and title over the plaint schedule property and for permanent injunction ? 2. Whether the suit is bad for non-joinder of necessary and proper parties ? 3. Whether the order in R.C.C.2/94 was obtained by the defendant by playing fraud ?” The oral evidence before the trial Court comprised of the deposition of PWs 1 to 3, and DWs 1 to 4. Documentary evidence comprised of Exs.A-1 to A-29, and B-1 to B7. X-series documents, marked as Exs.X 1 to X 14, were also taken on record. The suit was decreed for the second time on 17-04-2000. In A.S.No.16 of 2006 filed by the appellant, only one point was framed for consideration, viz., “Whether the trial Court had grossly erred in coming to the conclusion on the issues framed?” The appeal was dismissed on 10-08-2006. The first contention urged by the appellant is that the decree in R.C.C. No.2 of 1994 could not have been set aside by the trial Court at the instance of the respondent, who is not a party to that case. This contention cannot be accepted. The reason is that the necessity to seek a declaration in respect of a decree passed by the Court arises, only when the person seeking such a relief is not a party to such proceedings. In case he was a party to it, the only remedy is to file an appeal or revision, as the case may be, or to file an application, under Order 9 Rule 13 C.P.C., if it is the ex parte decree. A declaratory relief, vis-à-vis the judgment or decree, of a Court, can be claimed, only by a person, who is not a party to such decree. The second ground urged by the appellant is mostly on the facts. There is no denial of the fact that the father of the appellant purchased the property, under Ex.A-2, on 30-03-1967. However, on the same day, he is said to have executed a sale deed in favour of the father of the respondent, and that document is filed as Ex.A-1. Though it may appear to be abnormal, there is no illegality about it. Much would depend upon the circumstances, that warrant an instant transfer of the property, by the father of the respondent, that too, on the same day, on which he purchased it. There is no prohibition in law against such a course of action. It is rather incidental that both the documents contain the signature of the father of the appellant. On a broad comparison, the trial Court and the lower Appellate Court found that the signatures are uniform and consistent. In case the appellant doubted the genuinity of the signature of his father, on Ex.A-1, he ought to have filed an application under Section 45 of the Evidence Act, and to take further steps, to get the signatures compared, with the undisputed signatures. No meaningful effort was made in this direction. The learned counsel for the appellant is not able to point out any substantial question of law. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.23-03-2010. Note; L.R copy to be marked. (B/O) KO