Karnataka High Court
Madhumati W/O. Bhanudas Badave vs Abdul Raheem S/O Ajeejsab Horakeri on 12 October, 2020
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
W.P.NO.106266/2015 (GM-CPC)
BETWEEN:
1. SOU.MADHUMATI W/O. BHANUDAS BADAVE
AGE: 55 YEARS, OCC: HOUSEHOLD WORK
R/O. 7/357, ARUN NIVAS
BADAVE BUILDING
VETAL PETH, ICHALKARANJI
TQ: HATKANAGALE
DIST:KOLHAPUR, STATE: MAHARASHTRA
2. SHRI.SANTOSH KUMAR @ RUPESH S/O.
GANGADHAR SHINGADE
AGE: 39 YEARS, OCC: PHOTOGRAPHER
R/O. 7/357, ARUN NIVAS BADAVE BUILDING VETAL
PETH, ICHALKARANJI TQ: HATKANAGALE
DIST:KOLHAPUR STATE: MAHARASHTRA
BOTH R/BY HIS GPA HOLDER
SHRI.GOVARDHAN BHANUDAS BADAVE
AGE: 36 YEARS, OCC: PHOTOGRAPHER
R/O. 7/357, ARUN NIVAS BADAVE BUILDING VETAL PETH,
ICHALKARANJI TQ: HATKANAGALE DIST:KOLHAPUR
STATE: MAHARASHTRA
.....PETITIONERS
(BY SMT.SUMANGALA A.CHAKALABBI, ADV.)
2
AND
1. ABDUL RAHEEM S/O AJEEJSAB HORAKERI
AGE: MAJOR, OCC: BUSINESS
R/O. GOODSHED ROAD, SHIRUR CHAWL,
GANESHPETH, HUBLI
2. PRAKASH RAMACHANDRA SHINGADE
AGE: 64 YEARS, OCC: RETIRED
R/O.NEW CASTLE AVENUE OPP. HEBSUR ANCHAL
HERITAGE, HUBLI
DATTA @ DATTATRAYA S/O. RAMACHANDRA
SHINGADE (SINCE DECEASED BY HIS LRS)
3a) SHAMALA W/O. DATTA @ DATTATRAYA SHINGADE
AGE: 47 YEARS, OCC: HOUSEHOLD WORK
R/O. 16/820, NEAR IGM HOSPITAL ICCHALKARANJI,
DIST:KOLHAPUR
3b) SWATI W/O. PAREESH BHAGAWATH
AGE: 27 YEARS, OCC: HOUSEHOLD WORK
R/O. CHANDRANAGAR, PH7 CHS LTD., AMBEGAON
BK (PATHAR), NO. 15, PUNE-411046.
3c) SNEHA @ POONAM W/O.PRAHSANT PANDIT
AGE: 24 YEARS, OCC: HOUSEHOLD WORK
R/O. F NO. 14, B WING, SHRI GAJANAN PARK
KAMODNAGAR, NASIK-422009.
3d) ROHAN S/O. DATTA @ DATTATRAYA SHINGADE
AGE: 20 YEARS, OCC: STUDENT
R/O. 16/820 NEAR IGM HOSPITAL
ICCHAKARANJI, DIST:KOLHAPUR
..... RESPONDENTS
(BY SRI.RAKESH BILKI, ADV. FOR
SRI.SHIVARAJ C.BELLAKKI, ADV. FOR R1,
SRI.SADASHIV C.PATIL, ADV. FOR R2, R3(a)-R3(d))
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE JUDGMENT AND DECREE PASSED BY THE
HON'BLE LOK ADALAT HUBBALLI, DATED:30.07.2004 AND
22.01.2005 RESPECTIVELY IN RA.NO.39/2003 WHICH WAS
PENDING ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
(SR.DN.), HUBBALLI MARKED AS ANNXURES-A AND A1.
THIS PETITION COMING ON FOR PRELIMINARY
HEAING 'B' GROUP THIS DAY, THIS COURT, MADE THE
FOLLOWING:
ORDER
Petitioners have filed this writ petition under Article 226 and 227 of the Constitution of India seeking writ of certiorari to quash the award passed by the Lok Adalat, Hubballi dated 30.07.2004 and the judgment and decree dated 22.01.2005 passed in R.A.No.39/2003, which was pending on the file of the Additional Civil Judge (Sr.Dn), Hubballi.
2. It is the case of the petitioners that, one Ramachandra G.Shingade is the original owner of the property bearing Plot No.16, Block No.326 situated at Bairidevikoppa, Hubballi. Petitioner No.1 is the 4 daughter and petitioner No.2 is the grand son of said Ramachandra G.Shingade. According to the petitioners, Ramachandra G.Shingade had executed a registered Will dated 29.08.1997 in their favour bequeathing the property in dispute to them. The said Ramachandra Shingadi is said to have died on 11.04.2002.
3. After the death of Ramachandra Shingade, on the application made by the petitioners, the revenue authorities have mutated their names in the revenue records of the property in dispute. Evidencing the same, the petitioners have produced copy of the M.R. proceedings dated 30.03.2005 as Annexure-D. Petitioners also initiated probate proceedings before the jurisdictional Court in P & S.C.No.1/2005 against other legal heirs of Ramachandra Shingade. Respondent Nos.2 and 3 to this petition are the brothers of petitioner No.1 herein and they are only other legal representatives of the deceased Ramachandra Shingade. 5 In view of the objections filed by respondent Nos.2 and 3 herein in the P & S.C. proceedings, the same was ordered to be converted into an original suit and numbered as O.S.No.2/2009. The said suit has now being decreed by judgment and decree dated 30.03.2019.
4. It is the further case of the petitioners that, when they were prosecuting the suit, they came to know that revenue entries in respect of property in dispute was materially altered. Immediately thereafter on enquiry, they came to know about the impugned award passed in R.A.No.39/2003 by the Lok Adalat, Hubballi. On a detailed investigation, they came to know that respondent No.1 herein had filed O.S.No.287/2002 as against respondent Nos.2 and 3 herein seeking the relief of declaration of his title on the basis of adverse possession and consequential relief of permanent injunction in respect of the property bearing Plot No.16 6 situated at Block No.328 of Bairidevarkoppa, Hubballi and the said suit was dismissed on 06.01.2003. As against the said judgment and decree, respondent No.1 had filed R.A.No.39/2003 and during the pendency of the said appeal, the same was referred to Lok Adalath, Hubballi and a compromise petition was filed by respondent Nos.1 to 3 herein before the Lok Adalat mentioning the block number of the property as 326 instead of 328. The Lok Adalat without properly noticing the fraud played by respondent Nos.1 to 3 had ordered to decree the suit in terms of the compromise petition. On the basis of the said order, subsequently, the impugned decree was passed on 22.01.2005.
5. Learned counsel for the petitioners submits that respondent Nos.2 and 3 who are none other than her brothers have deliberately colluded with respondent No.1 and by changing the block number of the property, which was the subject matter of O.S.No.287/2002 have 7 clandestinely entered into a compromise petition in R.A.No.39/2003 and fraudulently obtained an award before the Lok Adalat. She further submits that respondent Nos.2 and 3 are parties to the P & S.C. proceedings and on their objections, the said proceeding was converted into a original suit and after completion of trial, the said suit is now decreed and in order to deprive the petitioners of their legal entitlement over the property in dispute, respondent Nos.2 and 3 in collusion with respondent No.1 have entered into a fraudulent compromise petition and on the basis of the same, R.A.No.39/2003 was disposed of before the Lok Adalat, Hubballi. Therefore, she submits that the said award of the Lok Adalat, Hubballi and consequent decree which are collusive in nature are unsustainable in law.
6. On the other hand, learned counsel for respondent No.1 submits that, he had purchased the 8 property in dispute from Ramachandra Shingade under unregistered sale deed dated 27.06.1987 and after the death of his vendor Ramachandra Shingade, he had filed a suit against his sons seeking declaration of his title by adverse possession. He submits that the writ petition filed by the petitioners is not maintainable and if at all, they are aggrieved by the decree passed in R.A.No.39/2003, they are required to question the same by filing a regular second appeal. He also submits that the petitioners are not parties to the impugned proceedings and therefore, they have no locus standi to challenge the same.
7. I have carefully considered the rival contentions urged by the parties and also perused the available material on record.
8. Admittedly, petitioner No.1 and respondent Nos.2 and 3 herein are children of Ramachandra Shingadi. In respect of the Will executed by 9 Ramachandra Shingade dated 29.08.1997, a probate proceeding has been initiated by the petitioners, for which, respondent Nos.2 and 3 are parties. It is not in dispute that the said probate proceeding was subsequently converted into a original suit and numbered as O.S.No.2/2009, which has been now decreed in favour of the petitioners by the Court of I Additional District and Sessions Judge, Dharwad sitting at Hubballi by judgment and decree dated 30.03.2019.
9. The suit in O.S.No.287/2002 has been filed by respondent No.1 as against respondent Nos.2 and 3 seeking declaration of his title on the basis of his adverse possession. According to respondent No.1, he had purchased the property in dispute from Ramachandra Shingade in the year 1987 and under the said deed of purchase, he was put in possession of the property. Therefore, prima facie a suit for adverse possession was not maintainable in the eye of law. The 10 said suit was therefore rightly dismissed by the jurisdictional Court on 06.01.2003.
10. The subject matter of the suit O.S.No.287/2002 was the property bearing Plot No.16 situated at Block No.328 of Bairidevikoppa, Hubballi. However, in R.A.No.39/2003, which was subsequently disposed of by means of the impugned award passed by the Lok Adalat, Hubballi, the description of the suit property, is shown as "Block No.326" instead of "Block No.328" and this is based on the compromise petition where the description of the property was wrongly mentioned. Therefore, it is prima facie evident that respondent Nos.2 and 3 with an intention to deprive the petitioners of their right, title and interest over the property in dispute have clandestinely entered into a compromise petition with respondent No.1 herein and they have fraudulently obtained collusive award before Lok Adalat, Hubballi in R.A.No.39/2003. 11
11. The contention of respondent No.1 that petitioners are required to challenge the award passed by the Lok Adalat, Hubballi in R.A.No.39/2003 by filing a regular second appeal, since the settlement has been arrived on the basis of a compromise petition filed under Order 23 Rule 1 of CPC, does not merit consideration, in view of Sub-section 2 of Section 21 of the Legal Services Authorities Act, 1987, which states that, as against any award made by the Lok Adalat, there shall be no appeal to any Court and therefore, the only remedy available to the parties to challenge any award passed by the Lok Adalat would be by filing a petition under Article 226 of the Constitution of India.
12. In the case on hand, petitioners have established that respondent Nos.1 to 3 have colluded and have managed to obtain a fraudulent award before the Lok Adalat, Hubballi in R.A.No.39/2003. Whenever a case of fraud is played and any order or decree is 12 obtained on the basis of such fraud, then such order or decree cannot be sustained in law. Fraud unravels everything.
13. Under the circumstances, the impugned award dated 30.07.2004 passed by Lok Adalat, Hubballi and consequential judgment and decree passed in R.A.No.39/2003 dated 22.01.2005 by the Court of Additional Civil Judge (Sr.Dn.), Hubballi stands quashed.
Accordingly, the writ petition is allowed. No order as to costs.
Sd/-
JUDGE M BS /-