1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 425 OF 2006 Mandabai w/o Kashinath Khillare & another .. APPELLANTS VERSUS Laxman s/o Bajjirao Khillare & others .. RESPONDENTS Shri J.R.Shah, Advocate for the appellants. Shri M.G. Purnapatre, Advocate for respondent nos. 1 and 2. Shri C.V. Dharurkar, Advocate for respondent nos. 3 to 5. ===== CORAM : R. M. BORDE, J. DATE : 10 th September, 2009. PER COURT : 1 This is an appeal by original plaintiffs raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiffs instituted Regular Civil Suit no. 284/2002 claiming cancellation of decree passed in earlier litigation i.e. Regular Civil Suit no. 142/1994 as well as for perpetual injunction restraining the defendants from interfering in possession of the plaintiff over land survey no. 43 to the extent of 1 H and 97 R situate at village Patansangvi Tq. Ashti. Plaintiff no. 1 is the wife of plaintiff 2 no. 2. Plaintiff no. 2 and defendant no. 1 are the sons of defendant no. 2. Defendant no. 3 is the wife of defendant no. 1. Defendant nos. 4 and 5 are sons of defendant no. 1. The property was originally owned by one Kondabai Bapu Kshirsagar. Plaintiff no. 2 was cultivating the land as tenant. The land was ultimately sold by Kondabai to plaintiffs for consideration of Rs.9,000/- by executing registered sale-deed on 15-11-1978 in the name of plaintiff no. 2. Plaintiffs thus came in possession of the property and their names were recorded in revenue record. It is the contention of the plaintiffs that defendant no. 3 initially filed Regular Civil Suit no. 221/1990 claiming maintenance against plaintiffs and defendant nos. 1 and 2. Defendant no. 3 entered into compromise with defendant nos. 1 and 2. For securing enforcement of compromise decree, defendant no. 3 presented suit for partition against plaintiffs and defendant nos. 1 and 2 being Regular Civil Suit no. 142/94. The suit came to be decreed on 14-1-1999. Disputed property i.e. survey no. 43 alongwith other ancestral property was subject matter of the said suit. Suit was decreed in favour of defendant no. 3. It is the contention of the plaintiffs that although the suit property was purchased by plaintiff no. 2 from Kondabai Kshirsagar, it was represented to the court that one Popat Gurao has sold the property to defendant no. 2 Bajirao. Thus, because of the mis-representation made to the court, the suit 3 property was held to be joint property of the family and decree was passed by the trial court. Plaintiffs contend that decree has been obtained by playing fraud on the court and as such sale-deed is not binding on them to the extent of entitlement of plaintiffs in relation to the disputed property is concerned. 3 Defendants appeared and resisted the suit by filing written statement. Defendant no. 2 however, supported the claim raised by the plaintiffs. It is the contention of defendant no. 3 that decree passed in earlier litigation i.e. Regular Civil Suit no. 142/94 operates as res-judicata and the plaintiffs are not entitled to raise any challenge. It is denied that any fraud is practised while securing favourable decree. 4 On consideration of the pleadings raised in the suit, trial court was pleased to frame preliminary issue as to whether the decree passed in Regular Civil Suit no. 142/1994 operates as res-judicata for entertaining the suit. Trial court held in favour of defendant no. 3 and upheld the objection and the suit came to be dismissed. Judgment and decree passed by the trial court was subjected to challenge at the instance of plaintiffs in Regular Civil Appeal no. 62/2004 which came to be heard and disposed of by 5 th 4 Adhoc Additional District Judge, Beed who was pleased to dismiss the same on 18-3-2006. 5 I have heard the arguments advanced by learned counsel for the respective parties. It is vehemently contended by learned counsel for the appellants that the decree passed in Regular Civil Suit no. 142/1994 was secured by practising fraud and as such, the principle of res-judicata cannot be made applicable while dealing with the instant appeal. According to him, the allegations of fraud ought to have been dealt with by the court earlier. Fraud, according to him, vitiates all judicial acts, whether in rem or in personam. A judgment, decree or order obtained by playing fraud on the court, tribunal or authority is nullity and same is open to challenge at any time, in appeal, revision, writ or even i n collateral proceedings. 6 In order to examine the contentions raised by appellants, I have perused the original record of Regular Civil Suit no. 142/1994. Said suit was presented by defendant no. 3 herein claiming partition and separate possession. Suit property survey no. 43 was also part of said partition. Appellants herein were impleaded as defendant nos. 2 and 3 in the said litigation. It was specific defence of the appellants herein that survey no. 43 5 is purchased by plaintiff no. 2 herein from one Kondabai. Issue was framed in the said suit as . “Do they prove that survey no. 43 is self acquired property of defendant no. 3 being purchased out of her Stridhan ?” . The issue is answered in negative. Burden of proving this issue is naturally on the person who contends accordingly. Thus, burden was obviously on the shoulders of appellants herein who were impleaded as defendants in Regular Civil Suit no. 142/1994. On perusal of the record it transpires that although plaintiffs herein contend that property has been purchased by them, sale-deed has not been placed on record. One witness Popat Gurao came to be examined on behalf of the plaintiff / defendant no. 3 herein. His evidence was considered by the court and in paragraph no. 15 of the judgment it is recorded that said witness deposed that he sold the suit land to defendant no. 4 Bajirao and he, and his brothers were tenants over the suit property. Pointing attention to the discussion in paragraph no. 15 of the judgment, it has been contended by the appellants that although PW 2 Popat had claimed only tenancy rights in relation to the property, he had no entitlement to alienate the property and he never sold the property survey no. 43 to Bajirao. It is further stated that the court was 6 misled by the statement of Popat who was examined on behalf of the plaintiff in said suit i.e. defendant no. 3 in the instant litigation. It is to be noted at this stage that the plaintiffs herein raised challenge to the finding of issue no. 6 which was framed in Regular Civil Suit no. 142/1994 by filing appeal being Regular Civil Appeal no. 16/1999 which came to be heard and disposed of by 3 rd Additional District Judge, Beed. Plaintiffs who were impleaded as defendants in the earlier litigation did not take any care to place on record copy of the sale-deed which is said to have been executed in their favour. But the plaintiffs herein raised challenge to the judgment in Regular Civil Appeal no. 16/1999 by presenting Second Appeal no. 305/2001 which came to be dismissed on 26-11-2001. Plaintiffs herein raised exception to the judgment in Second Appeal no. 305/2001 by filing review application no. 1348/2002. Review application also came to be turned down by this court on 16-3-2008. Although the burden of proving issue no. 6 as to whether the plaintiffs herein became exclusive owner of the property i.e. survey no. 43 by virtue of purchase made by them rests on them only i.e. plaintiffs herein, they have failed to produce copy of the sale-deed in the earlier litigation although the same was their contention upto the second appeal in the High Court, as well as the review application raising exception to the decision in the said second appeal. In these circumstances, it cannot be 7 said that contention raised by plaintiff in respect of fraud having been practised on the court, is substantiated. 7 Another important aspect of the matter is that although it is recorded by the court that Popat Gurao has deposed before the court that he has alienated the property in favour of Bajirao, however, discussion in the judgment in Regular Civil Suit no. 142/1994 in that regard was merely one of the circumstances recorded by the court to hold against the plaintiffs herein. I have perused the deposition of PW 2 Popat examined in Regular Civil Suit no. 142/1994. He has categorically stated before the court that sale-deed was got executed in favour of defendant no. 2 (plaintiff no. 2 herein) from his paternal aunt Kondabai. The statement made by Popat has been wrongly recorded by the court dealing with Regular Civil Suit no. 142/1994. It has also been pointed out that PW 1 Yamunabai has also stated in her deposition that some part of the property out of survey no. 43 has been alienated by Kondabai and the same was purchased by defendant. However, it is contended that inspite of sale by Kondabai, consideration was paid out of joint family funds and as such, the property is available for partition. In these circumstances, allegation in respect of fraud, on the face of it, is baseless and is not worthy to be considered. Even accepting the legal preposition 8 pointed out by learned counsel for the appellants that fraud vitiates all the judicial acts, still in the instant matter, it cannot be said that any fraud has been practised. 8 Learned counsel for the appellant has placed reliance on judgments recorded in (2007) 4 Supreme Court Cases 221 in the matter of A.V. Papayya Sastry and others vs. Govt. of A.P. and others, (2004) 1 Supreme Court Cases, 551 in the matter of V. Rajeshwari vs. T.C. Saravanabava and (2003) 8 Supreme Court Cases 319 Ram Chandra Singh vs. Savitri Devi and others. There cannot be duel opinion as regards the preposition laid down by the Apex Court in these judgments. However, from the discussion recorded above, prima facie, or even by stretch of imagination it cannot be inferred that any fraud has been practised. The courts below were therefore justified in deciding the matter on preliminary issue i.e. applicability of section 11 of the Code of Civil Procedure. On consideration of the circumstances referred to above and more specifically in view of the deposition of Popat PW. 2 recorded in Regular Civil Suit no. 142/1994, it can be said with certainty that the contentions raised in the plaint are essentially the outcome of mis- understanding which has occurred as a result of misquoting of the deposition of said witness by the trial court while dealing with Regular Civil 9 Suit no. 142/1994. In these circumstances, I am of the opinion that no substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 9 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa425.06.odt