Karnataka High Court
Smt. Savithramma vs Sri K. Munisidappa on 23 August, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.219 OF 2014 (DEC/INJ)
BETWEEN:
1. SMT.SAVITHRAMMA
W/O LATE RAMAIAH,
AGED ABOUT 65 YEARS,
R/AT GURUMANTHANAPALYA,
JEEVAN BHEEMANAGAR,
BANGALORE - 75.
2. SMT.PILLAMMA,
W/O THYAGARAJ,
AGED ABOUT 62 YEARS,
R/AT VENKATAPPA COLONY,
NARAYANAPURA,
DOORAVANI NAGAR POST,
BANGALORE - 560 016.
3. SRI GOVINDARAJU,
S/O LATE RAMAIAH,
MAJOR,
R/AT GURUMANTHANAPALYA,
JEEVAN BHEEMANAGAR,
BANGALORE - 560 075.
4. SMT.ERAMMA @ PAPANNA,
W/O RAJAPPA,
AGED ABOUT 33 YEARS,
R/AT NAGAPUR RAJAJINAGAR,
BANGALORE - 560 010.
2
5. SMT.MUNIRAJAMMA,
W/O MUNIREDDY,
MAJOR,
R/AT GURUMANTHANAPALYA,
JEEVAN BHEEMANAGAR POST,
BANGALORE - 560 075.
6. SMT.NARAYANAMMA
D/O LATE RAMAIAH,
AGED ABOUT 30 YEARS,
R/AT GURUMANTHANAPALYA,
JEEVAN BHEEMANAGAR POST,
BANGALORE - 560 075.
7. MR.NARAYNASWAMY,
S/O LATE RAMAIAH,
AGED ABOUT 34 YEARS,
C/O SRI GOVINDARAJU,
JEEVAN BHEEMNAGAR POST,
BANGALORE - 560 075.
8. MASTER NAGESH,
S/O LATE RAMAIAH,
AGED ABOUT 21 YEARS.
9. MASTER MARAPPA,
S/O LATE RAMAIAH,
AGED ABOUT 25 YEARS.
APPELLANT NO.8 AND 9
BOTH ARE
R/AT GURUMANTHANAPALYA,
JEEVAN BHEEMANAGAR POST,
BANGALORE - 560 075. ... APPELLANTS
(BY SRI K.RAVISHANKAR, ADVOCATE FOR
SRI M.SHIVAPRAKASH, ADVOCATE)
AND:
1. SRI K.MUNISIDAPPA,
S/O LATE KATAPPA,
SINCE DECEASED BY HIS LRs
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a. SMT.JAYAMMA,
W/O LATE MUNISIDDAPPA,
AGED ABOUT 60 YEARS,
MARATHALLI POST,
BANGALORE - 560 037.
b. SRI RAJA,
S/O LATE MUNISIDDAPPA,
AGED ABOUT 50 YEARS,
GURUMANTHANAPALYA,
BYRASANDRA ROAD,
JEEVAN BHEEMANAGAR POST,
BANGALORE - 75.
c. SRI RAMESH,
S/O LATE MUNISIDDAPPA,
AGED ABOUT 40 YEARS,
R/AT 1ST CROSS MAIN ROAD,
ASHWATHNAGAR, MARATHALLI POST,
BANGALORE - 560 037.
d. SRI SHIVA,
S/O LATE MUNISIDDAPPA,
AGED ABOUT 35 YEARS,
R/AT 1ST CROSS MAIN ROAD,
ASHWATHNAGAR, MARATHALLI POST,
BANGALORE - 560 037.
...RESPONDENTS
[BY SMT.V.VANITHA DEVI, ADVOCATE FOR R1(c) (ABSENT);
R1(b) & R1(d) ARE SERVED;
NOTICE TO R1(a) HELD SUFFICIENT]
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Sri. M.Shivapraksh., learned counsel for appellants has appeared in person.
The matter was listed on 28.07.2022 and 03.08.2022 there was no representation on behalf of R1(c).
2. For the sake of convenience, the status parties are referred to as per their rankings before the Trial Court.
3. The facts are stated as under:
The first plaintiff is the widow of one late Ramaiah and plaintiffs 2 to 9 are children of late Ramaiah. It is stated that Ramaiah had acquired the right over certain properties under Palupatti (partition deed) dated 07.03.1984. He being the owner of the suit schedule property has executed registered Will dated 10.11.1986 bequeathing the suit schedule property in favor of plaintiffs and another son Krishnappa.5
It is the contention of the plaintiffs that the defendant on the basis of fraudulent agreement of sale filed a suit in O.S.No.10476/1988 against the plaintiffs and sought the relief of specific performance. The suit came to be decreed in part vide judgment and decree dated 14.09.1995. The defendant preferred an appeal before this Court in RFA No.44/1996 and this Court vide judgment and decree dated 08.01.1999 decreed the suit for specific performance. It is the specific contention of the plaintiffs that the defendant obtained the two judgment and decree by committing fraud on the Court. The plaintiffs specifically contended that neither the suit summons nor the Notice of Appeal are served on them. On the basis of fraudulent judgment and decree, the defendant filed execution petition and obtained possession of the suit property in the month of November 2002.
It is averred that the plaintiffs came to know about the fraudulent judgment and decree obtained by the defendant only in the month of November 2002. Hence, 6 they initiated action contending that the judgment and decree in the suit as well as in the appeal are not binding on them and sought for declaration that they are the owners of the property in question. They also sought for possession.
After filing of the suit, the original defendant dies and hence his legal representatives are brought on record. They filed written statement inter-alia contended that they are not aware of the relationship of the plaintiffs with late Ramaiah.
It is specifically contended that late Ramaiah had executed agreement of sale on 14.02.1986 in respect of the suit house situated in land bearing No.45 measuring East to West 80 feet and North to South 12 feet for consideration of Rs.14,000/- (Rupees Fourteen Thousand only) and received earnest money of Rs.4,000/- (Rupees Four Thousand only). On the basis of the agreement of sale, the original defendant had filed a suit in O.S.No.10476/1988 and the suit was partly decreed. 7 Hence, the original defendant had preferred an appeal before this Court in RFA No.44/1996 and obtained judgment and decree for specific performance. On the basis the judgment and decree, they also obtained possession by filing Execution in Ex.No.15109/2000.
It is contended that plaintiffs received the suit summons and notice failed to appear before Trial court (In O.S.No.10476/1988) and also before the High Court (In R.F.A.No.44/1996). They denied the allegation that they obtained the judgment and decree by fraudulent means. It is stated that the original defendant got served suit summons and notice of execution petition through paper publication. The plaintiffs remained salient for all the years and hence they contended that the suit is barred by time. Accordingly, they prayed for the dismissal of the suit.
On the basis of the Trial Court framed 9 issues:
1. Whether the plaintiffs prove that they are the owners of the suit schedule property?8
2. Whether the plaintiffs prove that defendants played fraud in obtaining decree dated 14.09.1995 in O.S.No.10476/1988, decree dated 08.01.1989 in RFA No.44/1996?
3. Whether the plaintiffs are entitled for declaration that the said judgment and decree are not binding on the plaintiffs?
4. Whether the plaintiffs are entitled for declaration of ownership claimed?
5. Whether the plaintiffs are entitled for possession of suit property from the defendants?
6. Whether the plaintiffs are entitled for permanent injunction as prayed?
7. Whether the defendants prove that the suit is not properly valued and proper court fee is not paid?
8. Whether the defendants prove that suit is barred by limitation?
9. What order?
The seventh plaintiff examined as PW-1 and another 4 witnesses were examined as PW'S 2 to 5 and got marked six documents at Exhibits P-1 to P-6 in support of their case. The fourth legal representative of the deceased 9 defendant examined as DW-1 and got marked 16 documents at Ex.D-1 to D-16 in support of their case.
On the trial of the action, the suit came to be dismissed vide judgment and decree dated 08.07.2013. Therefore, this appeal is filed on several grounds as set out in the Memorandum of Appeal.
Learned counsel for appellants has urged several contentions.
4. Sri. Shivaprakash. M, learned counsel for appellants has relied upon the following decisions:
1. ILR 2007 KAR 3912 - SRI. VENKATESH Vs. SRI.
P.SUBBAIAH AND ANOTHER.
2. ILR 2006 KAR 3862 - AZEEZ KHAN Vs. BADRUNISSA BEGUM.
3. 1985 (1) Kant.L.J. 136 - NAGARATHANAMMA.M.L. Vs. S.R. SURYANARAYANA RAO.
4. AIR 1989 PUNJAB AND HARYANA 319 - KULDIP RAI Vs. SHARAN SINGH(DECEASED BY LRs) AND OTHERS.
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5. 1966 (2) MYS.L.J. 708 - R. MUNISWAMI NAIDU Vs. L. THIRUNAKVAKKARASU AND ANOTHER.
5. Heard the contentions urged on behalf of the appellants and perused the records with care.
The point which arises for consideration are whether the dismissal of the suit is justified in law?
The facts have been sufficiently stated. The issue involved in the present appeal raises an important question regarding fraud and compliance of provisions of Order 5 Rule 20 of the Code of Civil Procedure.
The argument advanced is that the original defendant K.Munisiddappa managed and manipulated the Court notices and summons with a shara as if the plaintiffs have refused to receive the Court summons and the Court believing that they are served and the Court placed them ex parte both proceedings i.e., in original suit before the Trial Court and in appeal before this Court. Hence, it is strenuously urged that the original defendant 11 K.Munisiddappa obtained the judgment and decree by playing fraud on the Court.
A good deal of argument was canvassed on fraud. The first argument is centered around the fraudulent act; second is with regard to Order 5 Rule 20 of the Code. Therefore, it is important to understand the law of fraud and let us quickly glance through the same.
FRAUD; Fraud and mistake as grounds of relief are alike founded on ignorance. There can be no mistake where there is no ignorance; there can be no fraud where there is no mistake.
It is not easy to give a definition of what constitutes fraud in the extensive signification in which that term is understood by Civil Courts of Justice. The Courts have always avoided hampering themselves by defining or laying down as a general proposition what shall beheld to constitute fraud. It is relevant to note that fraud is infinite in variety. Fraud, in the contemplation of a Civil Court of 12 Justice, may be said to include properly all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat any one is considered as fraud. Fraud in all cases implies a wilful act on the part of any one, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to.
ELEMENTS OF FRAUD; However difficult it may be to define what fraud is in all cases, it is easy to point out some of the elements which must necessarily exist before a party can said to have been defrauded. In the first place, it is essential that the means used should be successful in deceiving. Next, there can be no fraud without an intention to deceive, though the motive is immaterial. Lastly, there must be damage to the party deceived, even where there is a wilful false representation, before a cause of action 13 can arise. Fraud without damage or damage without fraud gives no cause of action. But fraud gives a cause of action if it leads to any sort of damage.
As is well known that fraud vitiates everything, even judgments and orders of the Court. It would be idle, therefore, to attempt to enumerate all the cases in which it is a ground of relief. Civil Courts have an original, independent, and inherent jurisdiction to relieve against every species of fraud not being relief of a penal nature. Every transfer or conveyance of property, by whatever means it be done, is vitiated by fraud. Deeds, obligations, contracts, awards, judgments, or decrees may be the instruments to which parties may resort to cover fraud, and through which they may obtain the most unrighteous advantages, but none of such devices or instruments will be permitted by a Court of Equity to obstruct the requirements of justice. If a case of fraud be established, the Court will set aside all transactions founded upon it by whatever machinery they may have been effected, and 14 notwithstanding any contrivance by which it may have been attempted to protect them.
"Fraud" said De Grey, C.J., "is an intrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts ecclesiastical and temporal."
The proper method of impugning a judgment for a fraud is by action. In exceptional cases it may be done upon a motion for new trial. But in appropriate cases other remedies may be available. Thus, verdict of a Court obtained by fraud upon it may be set aside. In order to sustain an action to impeach a judgment, actual fraud must be shown; mere constructive fraud is not, at all events after long delay, sufficient. The Court has jurisdiction to set aside a judgment obtained by fraud in a subsequent action brought for that purpose.
In actions brought for the purpose of impeaching transactions on the ground of fraud, it is essential that the 15 nature of the case should be distinctly and accurately stated. The facts must be so stated as to show distinctly that fraud is charged. A man who alleges fraud must clearly and distinctly prove the fraud he alleges. Indeed, it seems that even in a civil action a higher standard of proof is required than that required for proving ordinary matters.
"A civil court" said Denning, L.J., "when considering a charge of fraud will naturally require a higher degree of probability than that which it would require if considering whether negligence was established". The onus probandi is upon him to prove his case as it is alleged in the statement of claim, or in his particulars.
With this background, it is important to examine whether the plaintiffs are said to have been defrauded so as to seek relief on the ground of fraud?
Reverting to the facts of the case, the subject of the suit is house property situated in Sy.No.45 at Gurumanthanapalya, Jeevanabhimanagar, Bangalore. It measures East to West 80 feet and North to South 12 feet.16
The first plaintiff is the wife of late Ramaiah and plaintiffs 2 to 9 are the children of late Ramaiah.
The records would reveal that the original defendant K. Munisiddappa had initiated action against late Ramaiah in O.S.No.10476/88 on the file of City Civil Court, Bangalore seeking the relief of specific performance. The same came to be decreed in part. Hence, K.Munisiddappa preferred a Regular First Appeal before this Court in RFA No.44/1996.
The primary contention of the plaintiffs is that the suit summons in O.S.No.10476/1988 and notice in RFA No.44/1996 are not served to them. It has been specifically pleaded in the plaint that the defendant managed and manipulated the court notices and summons with a shara as if the plaintiffs have refused to receive the court summons having manipulated to present shara in the said fashion the Court believing the shara said to have been got written through defendant/s (in 17 O.S.No.10476/1988) and placed the defendant/s ex-parte.
It is also pleaded that the entire order sheet maintained in Court evidencing the statement and the report of Court Ameena placed all the defendants ex parte.
The plaintiff -K.Munisiddappa (in O.S.No.10476/1988) deliberately suppressed to disclose and place true and correct facts bringing to the notice of the Court.
Sri. M.Shivaprakash, in presenting argument, strenuously urged that the plaintiffs have been defrauded by K.Munisiddappa. It is also submitted that there is no compliance of Order 5 Rule 20 of the Code of Civil Procedure. Counsel drew attention of Court to the relevant provisions of the Civil Procedure Code.
I find it necessary therefore, extracting Order 5 Rule 20 of the Code is helpful in indicating the right approach:
Order 5 Rule 20.- Substituted service.- (1) Where the Court is satisfied that there is 18 reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.
(1-A) Where the Court acting under
sub-rule (1) orders service by an
advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
Rule 20 (1A) was inserted by CPC ( Amendment) Act 104 of 1976, s 55 ( w.e.f. 1.2.1977).
As is well known that Rule 20 provides for Substituted service. The rule enables a Court, where it is 19 satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, to order the summons by way of substituted service. Substituted service should be effected as a last resort when ordinary steps for service fail. An application for substituted service should not be allowed automatically. Service by publication should be ordered when the Court is satisfied that personal service is not possible. It is relevant to note that for ordering substituted service of summons, mere assertion of the plaintiff that the opposite party avoids service is not enough. The Court must be satisfied that fact.
It has to be proved that the newspaper was in daily circulation in the locality in which the defendant was last known to have actually and voluntarily resided, carried on business or personally worked for a gain.
Reverting to the facts of the case, what is required to be examined is whether the service of summons and 20 notices in the original suit as well as in the First appeal was in consonance with provisions of the Code.
The original defendant K.Munisiddappa had initiated action for the relief of specific performance in O.S.No.10476/1988. As already noted above, the specific averment in the pleading is that he managed and manipulated the court notices and summons with a shara as if the defendants (in O.S.No.10476/1988 ) have refused to receive summons and Court notice.
I was taken at length, very properly, through the pleadings, oral and documentary evidence. I have perused the Trial Court records with utmost care.
In the plaint, the material proposition put forth by the plaintiffs is as under. In paragraph 6 of the plaint, it is pleaded as under:
"The suit registered before the city civil court on 21.09.1988 in the said suit no notice has been served on the plaintiffs. The defendant managed and manipulated the court 21 notices and summons with a shara as if the plaintiffs have refused to receive the court summons having manipulated to present shara in the said fashion the Hon'ble Trial Court believing the shara said to have been got written through defendant and placed the defendant ex-parte. The entire order sheet maintained in Hon'ble Trial Court evidencing the statement and the report of court Ameena placed all the plaintiffs ex parte. The defendant deliberately suppressed to disclose and place true and correct fact bringing to the notice of the Hon'ble Court".
In paragraph 9 it is pleaded as under:
"The plaintiffs respectfully submits that the judgment and decree obtained in O.S.No.10476/1988 (wrongly typed as O.s.No.10476/1998) and R.F.A.No.44/1996 is an act of fraud thus the judgment and decree is not binding on the plaintiffs. It is also pertinent to state the antecedent and notoriety of the defendant in the local area is known for his illegal activities in grabbing Government properties as well as private properties of innocents, ignorant persons in recent past the 22 defendant is prosecuted for an act of tampering public document and creating fraudulent forged document in respect of property owned and possessed by the Bangalore Development Authority the defendant by manipulation and tampering public documents has constructed un-
authorised buildings on Bangalore Development Authority plots same has been demolished and bulldozed by the Bangalore Development Authority in this back ground the defendant act of obtaining decree by adopting fraudulent means and methods against the plaintiffs. Prima-facie it points out at the defendant the fraudulent scheme adopted against plaintiffs by abuse of process of law and courts".
The Ex.D-1 to D-4 are paper copies of paper publications.
In Ex.D-1 is the copy of the Paper Sanje Vani which is dated 16.09.1994. The notice of the O.S.No.10476/88 is published in Sanje Vani Paper.
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Ex.D-2 is the copy of the Paper Sanje Vani which is dated 22.09.1998. The notice of the RFA No.44/1996 is published in Sanje Vani Paper.
Ex.D-3 is the copy of the Paper Sanje Vani which is dated 25.09.1998. The notice of the RFA No.44/1996 is published in Sanje Vani Paper.
Ex.D-4 is the copy of is the copy of the Paper Sanje Vani which is dated 28.08.2001. The notice of Ex.No.15109/2000 is published in Sanje Vani Paper.
As already noted above, it is the specific contention of the plaintiffs that the defendant has obtained the decree by playing fraud. Hence, it is necessary to consider the oral evidence on record.
I may extract the relevant portion of the evidence of the parties in this regard.
One of the sons of late Ramaiah, Narayanaswamy was examined as PW-1. In his Chief-Examination, at 24 paragraph 8 he has stated that no notice was served to him and other plaintiffs. The defendant managed and manipulated the court notice and summons with mala fide intention and fraudulent intention and the Trial Court believing the shara said to have been got written through defendant placed us ex-parte. He has also stated that the plaintiffs were forcibly dispossessed and evicted in the month of November 2002. It is relevant to note that even in the cross examination, he has stated that the notice was not served in O.S.No.10476/1988.
One of the sons of the original defendant K.M.Shiva Shankar was examined as DW-1. In his Chief- Examination he has stated that summons published in Sanje Vani Newspaper dated 16.09.1994 in O.S.No.10476/1988 filed his father against the husband of plaintiff No.1 and the father of other plaintiffs. In RFA No.44/1996 Notice is taken by paper publication in Sanje Vani Newspaper dated 22.09.1998 and 25.09.1998. Notice published in Ex.No.15109/2000 was also in Sanje Vani Newspaper 25 dated 28.08.2001. It is significant to note that in cross- examination he has stated that other than paper publication, there was no personal service of summons on any of the plaintiffs in the earlier case. It is also stated that as per the entries in Ex.D-5 on 09.02.2001 there is an office note about return of RPAD issued to the present plaintiffs for insufficient address. It is true to suggest that in the execution proceedings also there was no personal service of E.P Notice on the present plaintiffs and there was public publication.
Learned counsel Sri.M.Shivaprakash, contended this case falls within the scope of the decision in SRI. VENKATESH Vs. P. SUBBAIAH AND ANOTHER reported in ILR 2007 KAR 3912.
I have perused the decision with care. The law is well settled by this Court. It has been held in the decision that in several cases dubious methods are also adopted in order to secure ex-parte order and as such paper publication should be ordered with due care and also after satisfied 26 about the particular paper in which the paper publication is sought to be taken out. This Court has also observed that the courts should avoid permitting publication in all and sundry newspapers for the mere asking since such request is made only because it is cheaper to publish in such paper irrespective of its readership.
It is also relevant to note that the Court also held that the word daily newspaper appearing in the provision should be under stood to mean not only a newspaper which is circulated on all days of the week but it should be a newspaper of repute which is published as a morning edition with general acceptance to the satisfaction of the Court since the readership of certain papers even though published daily is an exception to the normal practice of reading a newspaper.
As already noticed above, in the present case also the suit summons and the notice in the first appeal and also notice in Execution case were published in Sanje Vani newspaper. As the very name of the paper itself depicts 27 that Sanje Vani newspaper is not a morning edition paper.
A bare perusal of the pleadings, oral and documentary evidence on record would clearly depicts that there no due compliance of Order 5 Rule 20 of the Code.
This Court in R.MUNISWAMI NAIDU Vs. L. THIRUNAVAKKARASU reported in 1966 (2) MYS.L.J 708 has ruled by Division Bench that 'before a notice by substituted service could be ordered the court must be satisfied that there was reason to believe that the respondent was keeping out of the way for the purpose of avoiding service, or that for any other reason the summons could not be served on him in the ordinary way'. The Division Bench, speaking through Hegde .J: (as he then was), has further observed that, 'the court must apply its mind and see whether there was a case for issuing notice by substituted service. The manner in which notice by substituted service should be issued must also be decided by the Court'.
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I am completely satisfied that the decision of Venkatesh's correctly stated the law and that the law has not been altered.
The material on record would depict that the plaintiffs were not duly served in the earlier proceedings. Hence, it can be safely held that the newspaper in which the notices were published was not in consonance to what has been declared by this Court in Venkatesh's case referred to supra. There was a procedural lapse which resulted in lack of knowledge of hearing.
I may venture to say that the original defendant K.Munisdaappa used the means of paper publication with an intention to deceive and cause damage to the plaintiffs and was successful in deceiving the plaintiffs.
As is well known that fraud vitiates everything, even judgments and orders of the court.
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As already noted above, the proper method of impugning a judgment for fraud is by action. In the present case, the plaintiffs have followed the proper method and have rightly brought action. They are successful in sustaining an action to impeach a judgment and decree which was obtained by fraud.
In this backdrop, and a perusal of the judgment impugned in this appeal would indicate that the Trial Court has totally erred in preceding at a tangent and missing the real point in issue and as such the same is not sustainable. I have no doubt at all that the decision at which the Learned Judge arrived is substantially against the law on fraud and also against the provisions of the Civil Procedure Code. In my view, the judgment should have been the other way.
The present appeal is allowed. Resultantly, it is declared that the judgment and decree dated 14.09.1995 in O.S.No.10476/88 and the judgment and decree dated 30 08.01.1999 in RFA No.44/1996 are not binding on the plaintiffs.
I have declared that the judgment and decree in the earlier suit and appeal are not binding on the plaintiffs hence there is no need to give any finding on the Will.
Counsel for appellants has cited a number of cases, but I do not think that the law is in doubt. Each decision turns on its own facts. The present case is also tested in the light of the aforesaid decisions.
As it is declared that the judgment and decree in O.S.No.10476/88 and in RFA No.44/1996 are not binding on the plaintiffs, the plaintiffs in the present suit are declared as the absolute owners of the suit schedule property. The legal representatives' defendants are hereby directed to hand over the vacant possession of the suit schedule property to the plaintiffs within one month from today.
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In the result, the judgment and decree dated 08.07.2013 passed by the Court of the XXV Additional City Civil Judge at Bangalore City (CCH No.23) in O.S.No.2871/2003 is set aside and the suit is hereby decreed.
The registry concerned to draw the decree accordingly.
The parties to the appeal to bear their respective costs.
In view of disposal of the Regular First Appeal, all pending applications are disposed of.
Sd/-
JUDGE TKN