1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 9 OF 2007 nurul Mobin s/o Nurul Hasin Appellant Versus Daddabhau s/o Ashruba Jarhad & others Respondents Mr. P.V. Mandlik, Senior Counsel instructed by Mr. Mujtaba Gulam Mustafa and Mr. Pathan Amjad Khan, Advocates for the appellant. Mr. V.J. Dixit, Senior Counsel instructed by Mrs. Dipali Jape Ansingkar, Advocate for respondent no. 1. ===== CORAM: R.M.BORDE, J. DATE : 24th September, 2009. PER COURT : 1 This is an appeal by original defendant raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiffs instituted Regular Civil Suit no. 117/1998 claiming declaration that the judgment and decree passed in Regular Civil Suit no. 4/1984 decided on 7-9-1985 by the Civil Judge, Jr.Dn., Ambad and also execution of the decree in Regular Darkhast no. 8/1993 is not binding against the right, title and entitlement of the plaintiffs andthe same be 2 declared as null and void and further that the defendants be restrained by order of injunction from interfering and obstructing peaceful possession of the plaintiffs over the suit property. Plaintiffs are brothers interse. Defendant no. 3 is maternal uncle of defendant no. 4. Defendant nos. 3 and 4 were successful in getting their names incorporated in the revenue record in collusion with defendant no. 2. According to plaintiff, defendant nos. 3 and 4 have no right, title or entitlement in relation to the property in dispute. The property belongs to defendant no. 3 who sold the same by plaintiff no. 1 and one Ambadas Gawji by registered sale- deed dt. 25-3-1969. On the basis of sale-deed, plaintiff claims that he is in possession over the property. His name came to be incorporated as the owner and possessor of the suit land. Plaintiff further contends that there was interference in possession of the plaintiff at the hands of defendant nos. 3 and 4 in 1998. It was found that the name of defendant no. 3 and mother of defendant no. 4 came to be mutated in the revenue record. The same was on the basis of mutation entry no. 242. On enquiry, thereafter it was revealed to the plaintiff that the entries were taken in pursuance to the decree passed in Regular Civil Suit no. 4/1984 which was presented by defendant no. 3 and one Shahajahan Begum. The name of plaintiff no. 1 was shown wrongly alongwith other two 3 defendants. Obviously, plaintiffs were not served in the said suit and decree was secured in the absence of any contest by the defendants who were impleaded in the said suit i.e. Regular Civil Suit no. 4/1984. In the earlier litigation one Dada s/o Asru Ghisadi was impleaded as defendant no. 1 whereas name of the plaintiff is Dada s/o Ashruba Jarhad. Place of residence of the defendant in the earlier litigation i.e. Regular Civil Suit no. 4/1984 was shown as Waghalkheda whereas plaintiff no. 1 is resident of Katkheda. Plaintiff no. 1 belongs to Maratha community whereas defendant no. 1 in Regular Civil Suit no. 4/1984 was shown as Ghisadi. According to plaintiff, defendants have played fraud in securing decree and the said decree was put to execution in Regular Darkhast no. 8/1993 and record in respect of delivery of possession was created. On the basis of decree passed in earlier litigation i.e. Regular Civil Suit no. 4/1984 revenue entries were manipulated which according to the plaintiffs, shall not affect the right and entitlement of the plaintiffs. 3 Defendant no. 3 though appeared failed to file written statement and the suit proceeded ex-parte against him. Defendant no. 4 however filed written statement and controverted the contentions raised by plaintiffs. According to him, plaintiffs are not owners or possessors of the 4 suit property. He also denied execution of sale-deed by defendant no. 3 in favour of plaintiff no. 1 and one Ambadas. According to him, defendant no. 3 and mother of defendant no. 4 are the owners and possessors of the suit property and the mutation entry was sanctioned in their names accordingly. So far as earlier litigation i.e. Regular Civil Suit no. 4/1984 is concerned, it is contended that defendant no. 3 and mother of defendant no. 4 had no reason to include the present plaintiffs in the array of defendants because they were not owners and possessors of the suit land. According to defendant no. 4, the persons in possession on relevant date were added as defendants in the suit. Defendant no. 4 contends that the decree passed in Regular Civil Suit no. 4/1984 and execution proceeding taken in pursuance to the decree are binding on the plaintiffs. Defendant no. 4 therefore prays for dismissal of the suit. 4 Trial court after recording evidence of the parties came to the conclusion that plaintiffs have established their case and as such passed decree in their favour declaring them as owners of the property as well as clamping restrain order against the defendants restraining them from causing interference in possession of the plaintiffs. Judgment and decree passed by the trial court was subjected to challenge at the instance of 5 defendant no. 4 in Regular Civil Appeal no. 99/2004 which came to be herd and disposed of by the Adhoc District Judge – 1, Jalna who was pleased to dismiss the same on 10-10-2006. 5 I have perused the judgments recorded by both the courts below. Both the courts below have recorded finding of fact that the plaintiffs have established their title as well as ownership in respect of the suit property. Documentary evidence placed on record i.e. sale-deed, mutation entry as well as revenue record show name of plaintiff and one Ambadas as the owners and possessors of the suit property. Defendant no. 4 however, did not file any documentary evidence to establish his ownership and possession or rather dis-possession of his mother or defendant no. 3 or evidence in respect of their possession prior to institution of Regular Civil Suit no. 4/1984. From the surrounding circumstances and after scrutinising the evidence led by the parties, it is established beyond reasonable doubt that the decree passed in Regular Civil Suit no. 4/1984 was obtained fraudulently by the plaintiffs. In the earlier litigation name of defendant no. 1 was recorded as Dada s/o Asru Ghisadi and he was shown in occupation of the property. There is also no evidence to connect the other two defendants with the suit property. It 6 was expected of defendant no. 4 to place evidence in respect of the previous possession of Shahajahan Begum and Burhanoddin prior to accrual of cause of action for presentation of Regular Civil Suit no. 4/1984. Regular Civil Suit no. 4/1984 was presented seeking decree of possession on the basis of their previous ownership and title. There is no evidence placed on record by defendant no. 4 to draw an inference that prior to accrual of cause of action for presentation of Regular Civil Suit no. 4/1984, plaintiffs herein were either owners or possessors of the suit property. Evidence also h as not been placed on record as regards possession of defendant in Regular Civil Suit no. 4/1984 prior to passing of decree in said suit. Defendants in the said suit did not contest the litigation and the decree was passed in their absence. All these circumstances lead to an inference that decree in Regular Civil Suit no. 4/1984 was secured fraudulently and the person who is infact entitled to the property and has placed evidence in respect of his possession and title over the property was not impleaded in the earlier suit. However, the person having similarity with the name of original owner is impleaded. Addresses of the defendant given in the earlier suit is also fictitious. In these circumstances, the courts below were justified in drawing in inference that the decree secured in Regular Civil Suit no. 4/1984 was fraudulent and was secured 7 with an object to establish ownership and entitlement of the plaintiffs therein. On perusal of the judgments recorded by the courts below, I am convinced that the reasons recorded by the courts below are proper and logical and based on proper appreciation of evidence placed on record by the parties. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa9.07.odt