1 S.A.No.370/08. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.370 OF 2008 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.V.C.Solshe, advocate for the appellants. Mr.S.B.Gorde Patil, advocate for the Respondent. CORAM : S.V.GANGAPURWALA,J. Date : 22.12.2010. 1. This is original defendants' Second Appeal. The present Respondent had filed a suit for injunction restraining the defendant from obstructing her possession. The trial Court decreed the suit. The defendants filed appeal. The appellate Court dismissed the appeal confirming the judgment and decree passed by the trial Court. The defendants have assailed the said judgment in the present Second Appeal. 2. Mr.Solshe, learned counsel for the 2 S.A.No.370/08. appellants has strenuously contended that the plaintiff has failed to prove possession over the property. So also the plaintiff does not have any right, title or interest in the suit property. Admittedly, the defendant was the adopted son of Dhondubai. He was adopted in the year 1967 and on the death of Dhondubai he would get the right in the property. According to Mr.Solshe, learned counsel, the Courts below have erroneously relied on the decree passed in RCS No.27/1972. The said decree is a fraudulent decree. There was no necessity for Dhondubai to appoint the Power of Attorney Holder when her adopted son was very much alive. The terms of the compromise also show that the same were never acted upon. As per the terms of compromise Ramanuj was given possession of the property but he has admitted in his deposition that till the death of Dhondubai, she was in possession of the property. Even Ramanuj has not whispered anything about the said decree in RCS No. 27/1972. Such circumstances were sufficient to draw an inference that the same was obtained by 3 S.A.No.370/08. fraud. For the said purpose Mr.Solshe, learned counsel relied on the judgment of the Apex Court in a case of "Gram Panchayat of Village Naulakha Vs. Ujagar Singh and others" (2007) 7 Supreme Court Cases 543 and also the judgment of this Court in a case of Bhagwandas Narandas Vs. D.D.Patel and Co." AIR 1940 Bombay 131. The learned counsel further contended that even the revenue entries and the deposition show that the land was cultivated by the defendant through Chandrabhan. 3. Mr.Gorde Patil, learned counsel for the Respondent submitted that the rights of the parties were crystallised in the form of decree passed in RCS No.27/1972. The said decree is not challenged by anyone. In such circumstances, the defendant can not now contend in Second Appeal that the said decree was obtained by fraud. 4. The compromise decree in RCS No. 27/1972 was filed on record before the trial Court itself. Though the plaintiff had sought amendment which came to be allowed, the 4 S.A.No.370/08. plaintiff did not carry out the amendment in the plaint and as per Order 6 Rule 18, it will be deemed that the said amendment is rejected but none the less the certified copy of the judgment and decree was very much on record. The defendant in his evidence nowhere stated that the decree is obtained by fraud. It can not be a subject matter of debate that the said certified copy of the decree was directly admissible in evidence. Moreover, even before the lower appellate Court while filing the appeal, the present appellants had nowhere contended that the decree in RCS No.27/1972 was obtained by fraud. It was only in the written notes of arguments, the said plea was raised. The said decree is not challenged till this date on the ground of fraud. In absence of the lack of evidence to that effect, one can not come to the conclusion that the decree in RCS No.27/1972 has been obtained by fraud. It is a trite law that when the plea of fraud is sought to be raised then the particulars of the same have to be spelt out. There is nothing on record to show that Rs.50/- 5 S.A.No.370/08. was not been paid to Dhondubai. Just because it was stated that Dhondubai was in possession till that date would not ipso facto prove the decree to be a fraudulent one. The judgment of the Apex Court in a case of "Gram Panchayat of Village Naulakha Vs. Ujagar Singh and others" relied by Mr.Solshe, learned counsel lays down that the fraudulent or collusive judgment may be challenged in a latter suit or proceedings and it is not necessary to file an independent suit for declaration. The said proposition does not require any debate but the appellant had not challenged the said decree in RCS No.27/1972 being a fraudulent one, even when the appeal was filed before the lower appellate Court. In Second Appeal the said plea can not be considered. Once the decree is in existence then the rights are crystallised under the decree would govern the field. In light of the above, the defendant would not have any right in the property and the Courts below have evaluated the oral evidence also and have come to the conclusion that the plaintiff is in possession of the property. The said finding is 6 S.A.No.370/08. a finding of fact arrived at by appreciation of evidence. 5. In light of the above, the Second Appeal does not involve any substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.22.12.2010. asp/office/sa370.08