Andhra HC (Pre-Telangana)
M.Gurumoorthy And Others vs C.Kamalamma And Others on 22 April, 2014
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
A.S.M.P.No.1898 of 2012 and batch
22-04-2014
M.Gurumoorthy and others.Appellants/Plaintiffs
C.Kamalamma and others Respondents/Defendants
Counsel for Appellants/Plaintiffs:Sri V.L.N.G.K.Murthy
Counsel for the 1st Respondent:Sri C.Subba Rao
Counsel for the R-4.:Sri C.V.Mohan Reddy, `
learned senior counsel for Sri
T.Balaji, counsel.
Counsel for the 5th Respondent:Sri C.S.K.V. Ramana Murthy
Counsel for the 6th Respondent :Sri N.Srihari
Counsel for the Respondents 7-10:Sri P.V.Vidya Sagar
Counsel for respondents 11-13: --
<GIST:
>HEAD NOTE:
? Cases referred:
1. AIR 2002 Kant 96
2. AIR 1973 SC 569
3. (2011) 8 SCC 679
4. (2012) 11 SCC 574
5. (2007) 10 SCC 448
6. (2000) 7 SCC 543
7. AIR 1956 SC 593
8. (1994) 1 SCC 1
9. (2005) 7 SCC 605
10. (2000) 10 SCC 405
11. AIR 1967 S.C. 1395
12. AIR 1978 S.C. 1329
13. 2011(2) ALD 147 (DB)
14. (1993) Supp (2) S.C.C. 146
15. (2009) 2 S.C.C. 526
16. AIR 2007 S.C. 3067
17. AIR 2008 S.C. 1553
18. AIR 1995 SC 1440
19. (1971) 1 SCC 707
20. (1995) 3 SCC 693
21. AIR 1965 SC 241
22. Pradeep Oil Corporation v. MCD (2011) 5 SCC 270; Karam kapahi v. Lalchand
Public
Charitable Trust (2010) 4 SCC 753
23. (2003) 8 S.C.C. 311
24. (2003) 8 SCC 311
25. AIR 1966 SC 1332
THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO
A.S.M.P.No.1898 of 2012
in/and
A.S.No.371 of 1999
JUDGMENT:
This appeal is filed under Section 96 of C.P.C. challenging the judgment and decree dt.31-08-1998 in O.S.No.6 of 1996 of the III Additional District Judge Chittoor at Tirupati. THE PURCHASE BY APPELLANTS
2. The appellants are plaintiffs in the suit. Under a registered sale deed Ex.A-1 dt.13-10-1981, the 1st plaintiff purchased from Defendant Nos.2 to 5 and their mother Valliamma, w/o. Velayudham Chenga Reddy, the plaint schedule property in the name of his minor sons, the plaintiff Nos.2 and 3. The plaint schedule property is an extent of Ac.0-55 cents of dry land out of a total extent of Ac.3-96 cent in Sy.Nos.7/1C and 7/1B of Akkarampalli village, Chandragiri Taluk of Chittoor District.
3. THE BACKGROUND FACTS
4. The above property originally belonged to the said Chengareddy. Valliamma is his wife. They had 2 sons by name Govinda Reddy (2nd defendant) and Varamuni Reddy and 2 daughters by name Pedda Munemma and Munirathnamma (6th defendant). Chenga Reddy died prior to 1965. Varamuni Reddy died in the year 1973 leaving behind his wife Munilakshmamma (3rd defendant) and 2 sons Prasada Reddy (4th defendant) and Sekhar Reddy (5th defendant). Govinda Reddy also died pending suit in 1993. Lakshmamma (7th defendant) is his wife and defendant Nos.8 to 13 are his children. Pedda Munemma also died after 1998 and the 1st defendant is her daughter.
5. An extent of Ac.13-41 cents in Sy.No.7/1 cents was held under a joint patta No.4 by Chenga Reddy and 3 others. The said joint patta was split up under the provisions of A.P. Splitting-up of Joint Pattas Act, 1965 under Ex.A-3 dt.05-01-1970. As a consequence, an extent of Ac.1-50 cents in Sy.No.7/1B and another extent of Ac.1-50 cents in Sy.No.7/1C was allotted to Chenga Reddy. However, after Survey and Settlement, the said extent was found to be Ac.1-98 cents in Sy.No.7/1B and Ac.1-98 cents in Sy.No.7/1C, in all Ac.3-96 cents.
6. Under Ex.A-2 registered partition deed dt.11-04-1979, there was a partition between Valliamma, 2nd defendant and the 3rd defendant representing her minor sons, the 4th and 5th defendants. In the said partition, it was recited that the extent of Ac.3-96 cents was the ancestral property (Pitrarjitam). Under the said partition, an extent of Ac.1-12 cents each was allotted to Valliamma, 2nd defendant and to the legal heirs of Varamuni Reddy (Defendant Nos.3 to 5).
7. As stated supra, the plaintiffs had purchased under registered sale deed Ex.A-1 dt.13-10-1981 the plaint schedule property from Valliamma and Defendant Nos.2 to 5. This sale deed made a specific reference to the registered partition deed Ex.A-2 dt.11-04-1979 mentioned supra. The sale deed also recited that the property is ancestral property (pitrarjitam) and contained a recital of delivery of possession of the property to the plaintiffs. THE SUIT O.S.161 OF 1979 BY PEDDA MUNEMMA
8. Unknown to the plaintiffs, by the date of Ex.A1 , Pedda Munemma, the elder daughter of Chenga Reddy had already filed a suit O.S.No.161 of 1979 before the Principal Subordinate Judge, Tirupati against Valliamma, 2nd defendant, 6th defendant and Defendant Nos.3 to 5 arraying them as defendant Nos.1 to 6 seeking partition of the extent of Ac.3-96 cents of land in Sy.Nos.7/1C and 7/1B of Akkarampalli village and some other house properties.
9. Although the said suit was filed and was pending by the date of execution of Ex.A-1, it is not disputed that the plaintiffs were not informed about the filing of the said suit. Thus, the purchase by plaintiffs was lis pendens.
THE PLAINT IN O.S.161 OF 1979
10. In O.S.No.161 of 1979, Pedda Munemma , the plaintiff therein asserted that the extent of Ac.3-96 cents is the self-acquired property of Chenga Reddy and asserted that on his death, as his legal heir, she would get 1/5th share in the above property.
THE WRITTEN STATEMENT IN O.S.161 OF 1979
11. Govinda Reddy, who was 2nd defendant therein, filed a written statement denying that the properties were self-acquired properties of Chenga Reddy and asserted that they were ancestral properties. He also contended that Pedda Munemmas husband died 30 years prior to filing O.S.No.161 of 1979; that she came and stayed with her father Chenga Reddy; as she was penny-less, out of love and affection and to provide shelter for her, Chenga Reddy got a house purchased in her name and delivered possession of the same to her; that the door number of the said house is 321; that there was an oral partition in the year 1965 at the time of performance of obsequies of Chenga Reddy; in the said oral partition among the members of the family, the house bearing door No.321 was allotted to Pedda Munemma; and that ever since 1965, the family members were in possession of the property allotted at that oral partition. The defendants in O.S.No.161 of 1979 also contended that since the house bearing door No.321 was purchased by Chenga Reddy in the name of plaintiff and it was allotted to her share in the alleged partition of 1965, she had agreed to relinquish her share in the agricultural land of Ac.3-96 cents and therefore, the suit O.S.No.161 of 1979 is not maintainable and was liable to be dismissed.
12. Valliamma and defendant Nos.3 to 6 filed a memo adopting the written statement of Govinda Reddy.
THE COURSE OF EVENTS PENDING O.S.161 OF 1979
13. Contrary to the pleading that the extent of Ac.3.96 cts is the ancestral property of Chenga Reddy, Valliamma deposed as DW.1 in O.S.No.161 of 1979 admitting that the properties therein are the self-acquired properties of Chenga Reddy.
14. Curiously, in O.S.No.161 of 1979 Defendant Nos.2 to 5 and Valliamma had not mentioned about Ex.A-2 registered partition deed of 1979 and only mentioned the alleged oral partition of 1965. THE JUDGMENT IN O.S.161 OF 1979 (PRELIMINARY DECREE)
15. By judgment and decree dt.18-10-1985 (Ex.A1), O.S.No.161 of 1979 was decreed directing that the properties which were subject matter of that suit be divided into 5 equal shares and the plaintiff Pedda Munemma be put in possession of one such share. The trial Court held in O.S.No.161 of 1979 that the house bearing door No.321 stood in the name of Pedda Munemma; that there was nothing to show that it was purchased by Chenga Reddy except the self-serving statements of defendants; the defendants did not examine any person connected with the sale of the said house to show that the said house has been purchased by Chenga Reddy; and therefore, it cannot be held that the said house was purchased by Chenga Reddy. It also disbelieved the alleged oral partition of 1965 and held that even if the said oral partition is true, Pedda Munemma was not bound by it and she could not be said to have relinquished her right in the properties including the agricultural land of extent Ac.3-96 cents by a mere oral agreement without any registered deed of relinquishment. THE APPEAL NO.70 OF 1986 AGAINST THE JUDGMENT IN O.S.161 OF 1979
16. The unsuccessful defendants in O.S.No.161 of 1979 preferred A.S.No.5 of 1986 before the District Judge, Chittoor. It was transferred and renumbered as A.S.No.70 of 1986 before the III Additional District Judge, Tirupathi.
THE LAND ACQUISITION PROCEEDINGS
17. While the said appeal was pending, under an Award No.2 of 1988 dt.11.3.1988 (Ex.A.16), an extent of Ac.0-04 cents in Sy.No.7/1B and Ac.0-04 cents in Sy.No.7/1C was acquired by the State for forming of 100 feet wide road. In the said Award enquiry, the 3rd defendant appeared before the Land Acquisition Officer and stated that under the regd. family partition Ex.A-2 dt.11-04-1979, only the 2nd defendant was entitled to payment of compensation for the land in Sy.No.7/1C (which was also acquired for the purpose of widening of the road) and she had no objection if compensation for this 4 cents of land is paid to 2nd Defendant. Thus, Ex.A-2 partition deed dt.11-04-1979 was acted upon by Defendant Nos.2 to 5.
18. Pending A.S.No.70 of 1986, Pedda Munemma died and her daughter Kamalamma (1st defendant in O.S.6/1996/ 1st respondent in this appeal) was impleaded on 14-03-1988.
THE FINAL DECREE APPLICATION I.A.NO.830/1988
19. I.A.No.830 of 1988 was filed in O.S.No.161 of 1979 before the Principal Subordinate Judge, Tirupati for passing of final decree by 1st respondent herein/1st defendant in O.S.No.6/1996, Kamalamma.
THE ADVOCATE COMMISIONERS REPORT (EX.A 21)
20. In the final decree petition, an Advocate was appointed as Court Commissioner on 11.10.1988 to divide the properties which are subject matter of O.S.No.161 of 1979 i.e. Ac.3-96 cents in Sy.Nos.7/1B and 7/1C into 5 equal shares.
21. In the meantime, the plaintiffs, who were unaware of O.S.No.161 of 1979, had raised structures in the extent of Ac.0-55 cents purchased by them under Ex.A-1 sale deed dt.13-10-1981 without permission from the Tirupathi Municipality. The Tirupathi Municipality issued a notice Ex.A-4 dt.21.11.1988 under Section 228 (1) and (2) of A.P. Municipalities Act, 1965 directing the 1st plaintiff to stop the work immediately and remove structures therein. According to the plaintiffs, the Municipality later regularized the construction and collected property tax under Exs.A-11 and A-12 house tax receipts.
22. The Advocate-Commissioner appointed in I.A.No.830 of 1988 in O.S.No.161 of 1979 visited the plaint schedule property allegedly on 29-10-1988, 13-11-1988, 27-11-1988, 03-12-1988 and 17-12-1988. She filed a report Ex.A-21 dt.18-01-1989 mentioning that in the 1st item of the property which is subject matter of O.S.No.161 of 1979, except a small house roofed with asbestos sheets, there is nothing else and that although the said item was previously agricultural land, it was kept vacant. She recorded that the parties and their advocates suggested to her to divide the land by reducing the extent on the main roadside, taking into consideration the value of the sites. On the suggestion of the advocates for both sides, she divided the extent of Ac.3-96 cents into 5 shares i.e. schedules A to E. She also stated that as far as vacant site and house properties covered by item Nos.2 and 3 of the plaint schedule in O.S.No.161 of 1979 are concerned, the parties and their advocates had requested to her to divide only the 1/5th share of Pedda Munemma /Kamalamma, and keep the rest 4/5th share joint in one block.
23. On 20-02-1989, a memo was filed in I.A.No.830 of 1988 stating that Valliamma died and her legal representatives were already on record. The Court recorded the memo.
24. Both the petitioners and respondents in I.A.No.830 of 1988 filed a joint memo to pass a Final Decree agreeing to the allotment of shares as per the Advocate-Commissioners report stating that there was no stay order from the appellate Court in A.S.70 of 1986. It is pertinent to note that A.S.No.70 of 1986 filed against the preliminary decree in O.S.No.161 of 1979 was pending as on that day and came to be dismissed subsequently only on 04-07-1989 (Ex.B-5).
THE FINAL DECREE IN O.S.NO.161 OF 1979
25. On the basis of the said joint memo, orders dt.23-10-1989 (Ex.A-20) were pronounced in I.A.No.830 of 1988 passing a final decree allotting the shares to the parties as per the Advocate- Commissioners report.
THE EXECUTION PROCEEDINGS
26. On 04-10-1989, the 1st defendant herein, who was the legal representative of Pedda Munemma, filed E.P.No.79 of 1989 for delivery of the property allotted to her in the final decree proceedings i.e. C schedule in the final decree.
27. It is the admitted case of both sides that an extent of Ac.0.15 cents forming part of the land which the 1st defendant was entitled under final decree dt.23-03-1989 in O.S.No.161 of 1979, had been purchased by plaintiffs in O.S.No.6 of 1996.
28. On 12-10-1989, the Court Amin in O.S.No.161 of 1979 went to the property which is the subject matter of O.S.No.6 of 1996 to deliver possession to 1st defendant pursuant to the warrant entrusted to him in E.P.No.79 of 1989 in O.S.No.161 of 1979.
29. Only then the plaintiffs came to know about the proceedings in O.S.No.161 of 1979 and they objected to the delivery of property to the 1st defendant. The Court Amin refused to receive the objections.
THE PRESENT SUIT O.S.333 OF 1989 ( RENUMBERED AS O.S.6 OF 1996)
30. So the plaintiffs filed the suit O.S.No.333 of 1989 before the Principal Subordinate Judge, Tirupathi to declare that they are the absolute owners of the extent of Ac.0-55 cents purchased by them under Ex.A-1 sale deed dt.13-10-1981; for grant of permanent injunction in their favour restraining the defendants from in any way interfering with their possession and enjoyment of the plaint schedule property on the basis of the collusive decree passed in O.S.No.161 of 1979 by the Principal Subordinate Judge, Tirupathi or to execute the same in E.P.No.72 of 1989 and for costs.
THE PLAINT IN O.S.NO.6/199631. In the plaint, the plaintiffs specifically contended that defendant Nos.2 to 5, in order to cause loss to plaintiffs, and in order to grab some more property, did not contest the suit O.S.No.161 of 1979 and enabled a collusive decree passed in therein for partition of the properties of Late Chenga Reddy including the property purchased by plaintiffs; that defendant Nos.2 to 5 had knowledge of the constructions made by plaintiffs in the plaint schedule property but they did not bring to the notice of plaintiff the fact that O.S.No.161 of 1979 was pending between defendant Nos.1 to 6; that this suit is collusive; that there is a pucca building constructed in the plaint schedule property, but there was no recital in the decree directing the Court Amin to deliver property by demolishing the building, and therefore the suit be decreed.
32. The said suit was later transferred to the Court of III Additional District Judge, Tirupathi and renumbered as O.S.No.6 of 1996.
THE CONNECTED SUITS :
33. Like the plaintiffs herein, certain other parties also filed O.S.Nos.359 of 1989, 370 of 1989 and 256 of 1990 before the Principal Subordinate Judge, Tirupati against defendants, which were renumbered as O.S.Nos.16 of 1996, 17 of 1996 and 18 of 1996 on their transfer to the Court of III Additional District Judge, Tirupati. DEFENDANTS 2-13 REMAIN EXPARTE :
34. Govinda Reddy, 2nd defendant in the suit, died in the year 1993 and defendant Nos.7 to 13 were impleaded as his legal representatives. Pending suit, 3rd defendant died on 04-03-1997. Her sons, defendant Nos.4 and 5 were already on record. THE WRITTEN STATEMENT OF 1ST DEFENDANT:
35. In O.S.No.6 of 1996 only Kamalamma (1st defendant) filed written statement. The other defendants remained ex-parte. She contended that the plaint schedule property originally belonged to Late Chenga Reddy, that it was his self-acquired property and denied that there was a registered partition in the year 1979. She also denied that the decree in O.S.No.161 of 1979 was collusive. She admitted that there were structures in the land purchased by plaintiffs. She also stated that during pendency of O.S.No.161 of 1979, defendant Nos.2 to 5 were directed to deposit into court a sum of Rs.400/- per year towards the 1/5th share of Pedda Munemma in standing crops in the suit properties; that even during the pendency of A.S.No.70 of 1986 before the Additional District Judge, Tirupathi, there was a stay of execution of decree in O.S.No.161 of 1979 by the District Judge, Chittoor in I.A.No.20 of 1986 on condition of the appellants depositing the said amount every year pending appeal; defendant Nos.2 to 6 failed to deposit the mesne profits of Rs.400/- every year as per the said orders of the District Court, Chittoor in I.A.No.20 of 1986; the stay of passing of final decree was therefore vacated by the District Court, Chittoor; and only thereafter she filed I.A.No.830 of 1989 for passing of final decree. She also pleaded that the sale deed Ex.A-1 dt.13-10-1981 in favour of plaintiffs is a collusive one and hit by Section 52 of the Transfer of Property Act, 1882. She also pleaded that the plaintiffs, who are assignees of the Judgment Debtors of O.S.No.161 of 1979, cannot challenge the validity of the said decree and the judgment therein, since it had become final. She pleaded that no relief of cancellation of decree in O.S.No.161 of 1979 is sought by plaintiffs and therefore the plaintiffs are not entitled to any relief in the suit. She contended that the plaintiffs are estopped by the principle of res judicata.
36. Defendant Nos.2 to 6 were called absent and set ex parte.
THE ISSUES IN O.S.NO.6/199637. The trial Court framed the following issues:
1. Whether the plaintiff is entitled for the declaration prayed for?
2. Whether the plaintiff is entitled for the permanent injunction prayed for?
3. Whether the suit is barred by res-judicata?
4. Whether the suit is hit by lis-pendens under Section 52 of the T.P.Act?
5. Whether the suit is barred by limitation?
6. To what relief?
38. Before the trial Court, the plaintiffs examined PWs.1 to 8 and marked Exs.A-1 to A-30. The 1st defendant got examined herself as DW.1 and marked Exs.B-1 to B-11. Pending suit, there was an injunction restraining 1st defendant/1st respondent from executing the decree in O.S.No.161 of 1979.
THE JUDGMENT IN O.S.NO.6/1996
39. By judgment and decree dt.31-08-1998, the Court below dismissed the suit O.S.No.6 of 1996 (and connected suits mentioned supra) mainly on the ground that the plaintiff, as PW.1, did not state in his evidence that the decree in O.S.No.161 of 1979 was obtained by fraud and it was a collusive decree. It further held that since 1st plaintiff had stated that he had verified the records prior to purchase and satisfied himself about the title of the vendors and then only purchased the property, and the plaintiffs had failed to speak about the collusion between the parties in their evidence, they are not entitled to any relief. It also held that the plaintiffs had failed to establish that the decree in O.S.No.161 of 1979 was obtained by fraud and the decree was a collusive one.
THE PRESENT APPEAL AND ITS FATE IN THE EARLIER ROUND
40. Aggrieved thereby this appeal is filed challenging the judgment and decree in O.S.No.6/1996.
41. This appeal was initially heard along with AS.Nos.1713, 1715, 1716 of 1998 arising out of OS.Nos.16, 17, 18 of 1996 by Honble Justice B.S.A. Swamy.
THE APPOINTMENT OF ADVOCATE COMMISSIONER BY THIS COURT
42. On 17.02.1999 in CMP.No3068 of 1999 in this appeal, and in CMP No.s.20157, 20167, 20168 of 1999 in the connected appeals , His Lordship passed a common order appointing Sri N. Siva Reddy, Advocate of this Court as an Advocate Commissioner to visit the extent of Acs.3.96 cents belonging to the respondents/defendants 2-13, to note down the physical features of the land and structures standing therein, to determine the age of the structures with the help of the Municipal records and to submit a report to this Court as to who was in actual physical possession of the said property as on 17.02.1999.
THE REPORT OF THE ADVOCATE COMMISSIONER APPOINTED BY THIS COURT
43. The said Advocate Commissioner visited the said property on 27.02.1999 and 28.02.1999. He also issued notice to the Municipal Commissioner, Tirupathi on 22.02.1999 informing about his visit and requesting him to depute the Town Surveyor for localization of the said property and to provide the records to enable him to execute the warrant. The 4th defendant herein, V. Prasad Reddy, S/o. Varamuni Reddy and others were also present at the time of the visit of the Advocate Commissioner on the above dates. The Town Surveyor and his staff surveyed and identified the extent of Acs.3.96 cents in Sy.Nos.7/1B and 7/1C in the presence of the Advocates and parties on both sides. The Advocate Commissioner again went on 19.03.1999 to Tirupathi and on that day visited the Municipal office and met the Municipal Commissioner who made available the assessment registers relating to the structures existing as well as previous structures in the above property.
44. He filed a report dt.30.03.1999 before this Court in the appeal making the following important findings/observations :
(a) He found that there are 22 Municipal Assessed structures existing as on 27.02.1999 in the above land of Acs.3.96 cents in Sy.Nos.7/1B and 7/1C.
(b) He also found four other structures which were not assessed by the municipality.
(c) All the above structures were either under the occupation of the owners or their tenants.
(d) The remaining land was vacant, that there were no constructions and it was full of waste plants and shrubs.
(e) He found that five structures bearing D.Nos.20-3-88/E, 20-3-88/E1, 20-3-88/E2, 20-3-89/1, 20-3-89/4 which were existing in the land were assessed on 01.04.1984, 01.04.1984, 01.04.1986, 01.04.1986 and 01.10.1987.
(By the date of visit of the Advocate Commissioner appointed in the Trial Court commencing from 29.10.1988, these structures were thus existing on the said land, although the said Advocate Commissioner had found only one small house roofed with asbestos sheets at the southern end in Sy.Nos.7/1C and nothing else.) One of the buildings bearing M.No.20-3-89/1 housed the office of the Assistant Engineer, Postal Civil Sub- Division, Tirupathi and the Executive Engineer, Postal Civil Division, Hyderabad had informed the Advocate Commissioner that the said building had been in existence from 13.08.1987 onwards.
(f) He also noted that the structure bearing H.No.20-3-88/F of the 1st plaintiff had been assessed by the Municipality on 01.09.1989 and that it was an RCC structure admeasuring 18 x 80 and was in the occupation of 8 tenants; that there was vacant land to the northern side of the said building which is in the possession and enjoyment of plaintiffs; there was a old zinc sheet shed on the eastern side of the building; and a well, electric motor and pump set were also there.
(g) He found that plaintiffs/appellants in this appeal were in possession of the property mentioned in clause (f). No objections were filed to this report by any of the respondents.
45. Thus, this report clearly contradicted the report of the Advocate Commissioner appointed in the trial court (wherein the latter had held that there is only one small house roofed with asbestos in the extent of Acs.3.96 cents in Sy.Nos.7/1B and 7/1C) by finding at least five structures assessed by the Municipality existing by the date of the visit of the Advocate Commissioner appointed by the trial court in IA.No.830 of 1988.
THE DECISION IN THIS APPEAL IN THE EARLIER ROUND
46. On the basis of this report, this appeal and the other connected appeals mentioned above were allowed on 17.11.2001. The learned Judge held that collusion and fraud have to be inferred from the facts of the case even if the oral evidence let in by the parties is laconic; that the final decree was passed basing on the report submitted by the Advocate Commissioner appointed in OS.No.161 of 1979 and the said report was submitted by her even without visiting the place; that the report dt.30.03.1999 of Sri N. Siva Reddy, Advocate Commissioner appointed by this Court is liable to be accepted as additional evidence and marked as Ex.A.31 in the appeal; that there was no doubt some lapse on the part of the Advocates who had appeared on behalf of the plaintiffs in the trial court who had failed to ensure that oral evidence was adduced properly, but on that ground the plaintiffs could not have been thrown out. This Court held that the parties to the registered partition deed Ex.A.2 or their legal heirs did not come to Court and contest the suit ; they therefore admitted the sale in favour of the plaintiffs; that it cannot be definitely said that the properties which were subject matter of OS.No.161 of 1979 were the self-acquired properties of Late Chenga Reddy; that there was a suppression of Ex.A.2 in the written statement filed by 2nd defendant herein in OS.No.161 of 1979 (who had pleaded an oral partition of 1965) ; it was decreed on the basis of the admission of Valiamma that the properties are self-acquired properties of Chenga Reddy; if the parties did not have any intention to defeat the interests of bona fide purchasers like plaintiffs, they would have brought the bona fide purchasers on record by bringing to the notice of the Court that they had sold the lands during the pendency of the suit; this would facilitate working out of equities; but they intentionally suppressed this fact; in the final decree proceedings also they did not inform the Court or the Advocate Commissioner appointed by the trial court about the alienation made in favour of the plaintiffs, resulting in the passing of a final decree as per division of properties by metes and bounds as suggested by the Advocate Commissioner; this had resulted in the properties sold by defendants to plaintiffs herein to be allotted to the share of Pedda Munemmas branch and other properties to be allotted to the defendants. It held that this establishes the fraudulent intention of the defendants to defeat the interests of the plaintiffs and to involve them in protracted litigation. This Court also held that the defendants had colluded with Pedda Munemma and got the decree passed for partition of the property. It also held that the defendants had not mentioned about Ex.A.2 registered partition, or Ex.A.1 sale deed in favour of the plaintiffs even in AS.No.70 of 1986 filed against the judgment in OS.No.161 of 1979 and this indicated that the appeal was filed to give an impression to the purchasers/plaintiffs that the defendants there was some contest. It therefore held that the evidence on record indicates collusion between Govind Reddy (Defendnat no.2), Valiamma and the branch of Varamuni Reddy (Defendnats 3-5), to defraud gullible purchasers after selling the properties and receiving valuable consideration, and that the defendants actions were malafide.
47. It was also recorded in the judgment dt.17.11.2001 in AS.No.371 of 1999 and batch that a submission was made by counsel for the respondent (the judgment does not indicate who the counsel was and which respondent he was representing) that this Court may not set aside the preliminary decree; that it may consider setting aside the final decree only; and directing the trial court to pass a fresh final decree by working out equities to meet the ends of justice. This proposal was considered by this Court, and since alienation in favour of the plaintiffs was only for a portion of the extent of Acs.3.96 cents, it accepted the proposal of the counsel and did not disturb the preliminary decree. It set aside the final decree and directed the trial court to pass a fresh final decree in OS.No.161 of 1979 after hearing the plaintiffs, allot the shares to each of the family members of Late Chenga Reddy by giving effect to equities, i.e., the court should allot the lands which are in the possession of the plaintiffs/appellants, to the share of their vendors.
THE L.P.As AGAINST THE DECISION IN THIS APPEAL
48. This was challenged by respondent Nos.4 and 5 herein before a Division Bench of this Court in LPA.No.193 of 2002 and by respondent Nos.6 to 13 in LPA.No.19 of 2003. They contended that when the single Judge had opined that the judgment in OS.No.161 of 1979 was a result of fraud, no equities could be worked out since fraud would vitiate everything; and most of the parties before the Division Bench were not parties in OS.No.161 of 1979, and it is difficult to work out equities in such a situation.
49. This contention was accepted by the Division Bench. By a judgment dt.13.08.2004, the Division Bench allowed the LPAs, set aside the judgment and decree of the Single Judge and remanded the case back for a fresh judgment, leaving all pleas available to the parties open.
THE CHALLENGE IN THE SUPREME COURT
50. The order of the Division Bench was questioned in Civil Appeal Nos.5653 5658 of 2009 in the Supreme Court of India by the appellants herein but the said Civil Appeals were dismissed on 18.08.2009 observing that the single Judge, hearing this appeal afresh after remand, should decide all the questions raised before him by the parties which had been left open by the Division Bench. AFTER REMAND , THE APPEAL IS HEARD
51. Therefore, this appeal was again heard by me keeping in view the observations made by the Division Bench in the LPAs and by the Supreme Court in the Civil Appeals.
THE ADDITIONAL EVIDENCE APPLICATION ASMP.NO.1898/2012
52. I will first deal with the application ASMP.No.1898 of 2012 filed by the appellants under Order 41 Rule 27 CPC to mark 38 documents as Exs.A.31 to A.70 by receiving them as additional evidence in the appeal. Since this Court has already marked the report dt.30.03.1999 of the Advocate Commissioner appointed by this Court and another sale deed document No.4742 of 1990 dt.27.02.1990 as Ex.A.32 in ASMP.No.3068 of 1999 vide judgment dt.17.11.2001 as Ex.A.31 and A.32 (wrongly shown as Exs.B.1 and B.2 in the appendix to the earlier judgment dt.17.11.2001 in this appeal, which has since been set aside), if these 38 documents are received by way of additional evidence, then they would have to be marked as Exs.A.33 to A.71 respectively.
53. Keeping this in mind, I will now consider whether the appellants are entitled to lead additional evidence and, if so, which of these documents is to be received as additional evidence.
54. The following are the documents sought to be marked as additional evidence :
1. Certified copy of written statement in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.17.03.1981.
2. Certified copy of issues in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati.
3. Certified copy of deposition of PW-1 (M. Pedda Munemma) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.09.01.1984.
4. Certified copy of DW-1 (V. Valliamma) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.24.11.1984.
5. Certified copy of DW-3 (V. Govinda Reddy) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.04.12.1984.
6. Certified copy of DW-4 (V. Munilakshmamma) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.06.02.1985.
7. Certified copy of DW-6 (R. Venkateswara Reddy) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati.
8. Certified copy of orders in IA.No.830 of 1988 in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati dt.23.03.1989.
9. Certified copy of plaint in OS.No.351 of 1997 on the file of Principal Senior Civil Judge Court, Tirupati.
10. Certified copy of issues in OS.No.351 of 1997 on the file of Principal Senior Civil Judge Court, Tirupati.
11. Certified copy of judgment in OS.No.351 of 1997 on the file of Principal Senior Civil Judge Court, Tirupati dt.27.02.2001.
12. Certified copy of suit register extract in OS.No.351 of 1997 on the file of Principal Senior Civil Judge Court, Tirupati.
13. Certified copy of Execution Petition in EP.No.35 of 2000 in OS.No.161 of 1979, dt.31.12.1999 with affidavit filed in support of it.
14. Certified copy of Rule 22 Notice in EP.No.35 of 2000 in OS.No.161 of 1979.
15. Certified copy of petition, affidavit and orders thereon in EA.No.97 of 2000 in EP.No.35 of 2000 in OS.No.161 of 1979, dt.02.03.2000 to advance to hearing of E.P.
16. Certified copy of Memo in EP.No.35 of 2000 in OS.No.161 of 1979 dt.02.03.2000.
17. Certified copy of warrant dt.03.03.2000, Amins M. Venkataswamy report in EP.No.35 of 2000 in OS.No.161 of 1979, dt.06.03.2000 along with statement of respondents 4 and 5 herein.
18. Certified copy of petition and affidavit in EA.No.102 of 2000 in EP.No.35 of 2000 in OS.No.161 of 1979, dt.06.03.2000.
19. Certified copy of orders in EA.No.102 of 2000 in EP.No.35 of 2000 in OS.No.161 of 1979, dt.06.03.2000.
20. Certified copy of warrant dt.06.03.2000 and Amins report in EP.No.35 of 2000 in OS.No.161 of 1979, dt.13.03.2000.
21. Certified copy of petition in EA.No.189 of 2008 in EP.No.35 of 2000 in OS.No.161 of 1979.
22. Certified copy of Agreement of Sale in favour of N. Gurunatham executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4863/2000, dated 26.09.2000.
23. Certified copy of Agreement of sale in favour of Y. Sudhakar executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4866 of 2000, dated 26.09.2000.
24. Certified copy of Agreement of Sale in favour of N. Srinivasulu executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4871 of 2000, dated 26.09.2000.
25. Certified copy of Agreement of Sale in favour of N. Guruvulu executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4870 of 2000, dated 27.09.2000.
26. Certified copy of Agreement of Sale in favour of N.S. Kanthama executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4903/2000, dated 29.09.2000.
27. Certified copy of Agreement of Sale in favour of P. Siva Kumar executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4903 of 2000, dated 29.09.2000.
28. Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4478/2006, dt.28.07.2006.
29. Certified copy of registered cancellation deed executed by V. Prasad and Sekhar Reddy vide doc.No.4475/2006, dt.28.07.2006.
30. Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4477/2006, dt.28.07.2006.
31. Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4479/2006, dt.28.07.2006.
32. Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4474/2006, dt.28.07.2006.
33. Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4473/2006, dt.28.07.2006.
34. Certified copy of Agreement of Sale cum General Power of Attorney in favour of B. Gurunatha Reddy and another executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4480/2006, dated 28.07.2006.
35. Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.5608/2006, dt.28.07.2006.
36. Certified copy of Agreement of Sale cum General Power of Attorney in favour of B. Gurunatha Reddy and N. Venkataramana executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.1001/2007, dt.14.02.2007.
37. Certified copy of Sale deed executed by V. Prasad Reddy and Sekhar Reddy, represented by their Power of Attorney Agents Pragathi farms, Ananthapur in favour of R. Maheswara Naidu and Sri Pragathi Farms, Ananthapur vide doc.No.3332/2008, dated 21.04.2008.
38. Certified copy of orders in IA.No.1041/2002 in IA.No.830/88 in OS.No.161/79, dt.09.01.2003.
55. A perusal of the documents at serial No.1 to 8, 13 to 21 and 38 show that they are certified copies of pleadings, issues, depositions, orders in the final decree petition and execution petitions, etc., in OS.No.161 of 1979 to which the appellants were not parties. The documents at serial Nos.9 to 12 are certified copies of pleadings, issues and judgment, etc., in OS.No.351 of 1997 filed by respondent Nos.4 and 5 herein against the appellants and others before the Principal Sub-Ordinate Judge, Tirupathi. This suit was in relation to an extent of Acs.0.47 cents in Sy.No.7/1B and Acs.0.45 cents in Sy.No.7/1C allegedly allotted to them pursuant to the final decree passed on 23.03.1989 in OS.No.161 of 1979. It was dismissed for non-prosecution on 27.02.2001. In this suit it is alleged that the appellants wanted to coerce respondent Nos.4 and 5 to sell this extent to them and tried to dispossess them from the said property. They sought a perpetual injunction restraining appellants from interfering with their possession and enjoyment.
56. In the affidavit filed in support of ASMP.No.1898 of 2012 it is specifically stated that these documents are necessary to establish the collusion among the respondents, that these documents were suppressed by them and that they have also played fraud on the appellants as well as the Court. Only the 5th respondent filed a counter stating that it is not necessary to receive these documents and that if such evidence is permitted at this stage, it requires adducing of oral evidence and cross examination of witnesses. This objection of the 5th respondent is not tenable since all these documents are certified copies either of record of Court proceedings in O.S.No.161 of 1979 to which the 5th respondent is a party or are deeds executed by respondent Nos.4 and 5 pending appeal, execution of which have not been denied by the 5th respondent.
57. Since the appellants are not parties to OS.No.161 of 1979, and since the documents at serial Nos.1 to 8 and 13 to 21 and 38 relate to the said suit and are certified copies of the proceedings, I am satisfied that the appellants were unable to produce these documents, notwithstanding the exercise of due diligence before the trial court and that these documents need to be examined to enable this Court to pronounce judgment on the issues raised in the appeal. Even in regard to the documents at serial Nos.9 to 12, it appears that although the appellants are parties in OS.No.351 of 1997, they were set ex parte therein. I am of the opinion that these documents are also necessary to be examined to enable this Court to pronounce judgment on the issues raised in the appeal. The counsel for the respondents did not raise any serious objection to the receiving of these documents as additional evidence.
58. As regards documents at serial Nos.22 to 37, these are certified copies of registered agreements of sale entered into by respondent Nos.4 and 5 in favour of certain third parties from 26.09.2000 to 29.09.2000, registered deeds of cancellation of these agreements of sale, registered GPAs-cum-agreements of sale dt.28.07.2006 and 14.02.2007, and a registered sale deed dt.21.04.2008 executed by them. In regard to these documents, the appellants submit that the recital therein that respondent Nos.4 and 5 had got delivery of the property by executing the final decree passed in OS.No.161 of 1979 in EP.No.35 of 2000 dt.02.03.2000 through the Court Amin is false; in fact, the said documents show the southern boundary of the land described in the schedules thereto as that belonging to the 1st appellant; and these documents also are necessary to prove the conduct of respondent Nos.4 and 5 in the matter. Although the admission of these documents as additional evidence is strongly opposed by the respondents, I am of the opinion that the consideration of the said documents is necessary to pronounce judgment on the issues raised in the appeal, more particularly since the execution of these documents is not denied by respondent Nos.4 and 5 and certified copies thereof are filed.
59. In this view of the matter, ASMP.No. 1898/2012 is therefore allowed and all the documents from serial Nos.1 to 38 are received as additional evidence and marked as A.33 to A.70.
60. Heard Sri V.L.N.G.K. Murthy, learned counsel for the appellants, Sri C. Subba Rao, learned counsel for 1st respondent, Sri C.V. Mohan Reddy, learned Senior Counsel for Sri T. Balaji, learned counsel for respondent No.4, Sri C.S.K.V.Ramana Murthy, learned counsel for respondent No.5, Sri N. Srihari, learned counsel for respondent No.6 and Sri P.V. Vidya Sagar, learned counsel for respondent Nos.7 to 10. Respondent Nos.11 to 13 are also legal representatives of 2nd respondent who had died and even though they are not served, since the estate of the 2nd respondent is represented by respondent Nos.7 to 10, who are his wife and three sons, it was represented by all counsel that respondent Nos.11 to 13 are not necessary parties to the appeal.
THE CONTENTIONS OF THE APPELLANTS
61. The counsel for the appellants/plaintiffs contended that the consideration of oral and documentary evidence on record would prima facie reveal that there was collusion among the defendants who are parties to OS.No.161 of 1979 to the detriment of the plaintiffs and to deprive the plaintiffs of the property which was purchased by them under Ex.A.1; therefore, even though the purchase by plaintiffs from defendants is during the pendency of OS.No.161 of 1979, the doctrine of lis pendens enunciated in Section 52 of Transfer of Property Act, 1882 would not apply and come in the way of the plaintiffs getting a decree in their favour in the suit. He also contended that :
(a) even if there was no collusion at the time of filing of OS.No.161 of 1979 by Pedda Munemma, subsequent thereto, the conduct of the defendants and the manner in which they contested the said suit and AS.No.70 of 1986 arising therefrom, and also the execution proceedings therein, clearly indicate that such collusion existed before passing of the preliminary decree in the said suit;
(b) even if there was no collusion prior to the passing of the preliminary decree in the suit, there was definitely collusion at all stages after the passing of the preliminary decree including AS.No.70 of 1986 and the execution proceedings;
(c) that there was deliberate suppression of the truth from the trial court in OS.No.161 of 1979 as well as the 1st appellate court in AS.No.70 of 1986 and fraud was played on the Court as well as the plaintiffs by all the defendants;
(d) that the conduct of the defendants in not informing the plaintiffs about OS.No.161 of 1979 at the time of execution of Ex.A.1 by Valiamma, defendant Nos.2 to 5 and not impleading them in the suit/appeal As.No.70 of 1986 or in the execution proceedings, is only to put the plaintiffs in peril and is malafide;
(e) that the trial court in OS.No.6 of 1996 grossly erred in not appreciating that fraud and collusion occur in secrecy and are not capable of being seen or perceived by parties and the court has to infer about them from all the facts before it; and
(f) that the trial court ought not to have dismissed the suit on the ground that PW.1 had not mentioned about collusion specifically in his evidence.
He contended that the report of the Advocate Commissioner appointed by the trial court in OS.No.161 of 1979 (Ex.A.21) is false, that the Advocate Commissioner also appears to have colluded with the parties in order to cause loss to the appellants and the said report cannot be the basis for passing any final decree in the said suit or for executing it; and that parties who are guilty of fraud cannot be allowed to enjoy the fruits of such a decree and the court cannot remain a mute spectator once the fraud and collusion is apparent. He further contended that the plaintiffs are still in possession of the plaint schedule property, that the Court Amin had only affected paper delivery and not physical delivery to defendant Nos.4 and 5 on 13- 03-2000 (Ex.A-52) and in E.A.No.189 of 2008 in E.P.No.35 of 2000 in O.S.No.161 of 1979 (Ex.A-53), the plaintiffs who were petitioners therein clearly asserted that they are in possession and enjoyment of the plaint schedule property; that while in Ex.A-52, the Court Amin had claimed to have delivered possession of the property to respondent Nos.4 and 5 on 13-03-2000, yet in Exs.A-54 to A-59 executed by defendant Nos.4 and 5, it is recited as if possession was delivered on 02-03-2000 by the Court Amin; that these recitals are also false recitals; that in fact the Court Amin, without visiting the property, had filed a false report as if he delivered possession of the property; in any event, the orders in the E.P. or reports of the Court Amin in O.S.161 of 1979 cannot be used against the plaintiffs since they are not parties to the said suit; and that the 5th defendant/5th respondent, who filed counter in A.S.M.P.No.1898 of 2012, did not deny the allegation of the plaintiffs that there was only paper delivery of possession to him and therefore it has to be held that the plaintiffs are in possession of the plaint schedule property. It is also contended that filing of E.P.No.35 of 2000 by Defendant Nos.4 and 5 is collusive since they purport to seek execution of the decree for vacant land of plot IV (mentioned in Ex.A-21) thereby ensuring that the 1st Defendant keeps the extent of Ac.0.15 cts containing the structures erected by the plaintiffs. He relied upon the decisions in Ramanagouda Siddanagouda Biradar and others v. Basavantraya Madivalappa Mulimani and others , Jayaram Mudaliar v. Ayyaswami and others , Bakshi Dev Raj (2) and another v. Sudheer Kumar , Badami (deceased) by her LR v. Bhali , Lachhman Dass v. Jagat Ram and others , Gram Panchayat of Village Naulakha v. Ujagar Singh and others , Nagubai Ammal and others v. B. Shama Rao and others , S.P. Chengalvaraya Naidu (dead) by LRS. v. Jagannath (dead) by LRs. and others , Bhaurao Dagdu Paralkar v. State of Maharashtra and others and Anwarbi v. Pramod D.A. Joshi .
THE CONTENTIONS OF RESPONDENTS :
62. Per contra, the counsel for the respondents contended that the judgment and decree of the Court below are correct and did not suffer from any error or illegality.
63. Sri C.S.K.V. Ramana Murthy, learned counsel for 5th respondent/5th defendant contended that under Ex.A-2 dt.11-04-1979, an extent of Ac.1.12 cts each out of a total extent of Ac.3.36 cts was allotted to 2nd defendant, Valiamma and Varamuni Reddy; dimensions of these plots are not mentioned in Ex.A2; therefore it has to be construed that partition by metes and bounds did not occur and the land purchased by plaintiffs under Ex.A1 cannot be identified; filing of Ex.A-2 in O.S.No.161 of 1979 was unnecessary ; even if it was filed, it would not have prevented Pedda Munemma from getting her share; no doubt Ex.A-1 sale deed executed by Valiamma and defendant Nos.2 to 5 in favour of the plaintiffs was not disclosed; it cannot be said that there was any fraud or collusion by the defendants since such concealment was not shown by the plaintiffs to have brought any advantage to the defendants as against the plaintiffs. In any event, he contended that the preliminary decree was not vitiated by fraud. He further contended that Ex.B-1 and B-2, the judgment and decree in O.S.No.352 of 1943, the suit filed by Chenga Reddy for Occupancy Rights and Ex.A-3, order sanctioning splitting of pattas, clearly shows that the property in O.S.No.161 of 1979 is the self acquired property of Changa Reddy and the word pitrarjitam used in Ex.A-1 and A-2 has to be understood to mean property earned by father. He contended that the plaintiffs cannot complain about the preliminary decree in O.S.No.161 of 1979 passed on 18-10-1985 since they are not affected by it and since there was no mention about collusion in the evidence of PW.1, the Court below had rightly dismissed the suit. He further contended that even the final decree cannot be said to be fraudulent or collusive. According to him, even if the property is ancestral property of Chenga Reddy, Pedda Munemma would still get 1/15th share, and since an attempt was made in O.S.No.161 of 1979 to contest the claim of Pedda Munemma that the property is self acquired property of Chenga Reddy, by pleading about the oral partition in 1965, no conclusion of collusion can be drawn. Even if the final decree was passed on 23-03-1989 in I.A.No.830 of 1988 in O.S.No.161 of 1979, this was pending A.S.No.70 of 1986 and therefore is subject to the result in the appeal; E.A.No.189 of 2008 in E.P.No.18 of 2006 (formerly E.P.No.35 of 2000) is still pending and the executing Court can be directed to go into these issues and they need not be decided in this appeal. He relied on Kuppuswami Chettiar Vs. SPA Arumugam Chettiar , Jadu Gopal Vs. Pannalal and Divisional Forest Officer, Eluru v. District Judge, West Godavari, Eluru .
64. Sri P.V. Vidya Sagar, the learned counsel for respondent Nos.7 to 10 contended that along with O.S.No.6 of 1996 (out of which this appeal arises), O.S.No.16 to 18 of 1996 were also tried, heard and disposed of together; that A.S.No.1713 of 1998, A.S.No.1715 of 1998 and A.S.No.1716 of 1998 arising from O.S.No.16 to 18 of 1996 were dismissed as withdrawn by the appellants therein; that the pleas of all the plaintiffs in the above suits was one and the same; that they all pleaded that the decree in O.S.No.161 of 1979 is collusive; since the trial Court had given a finding in O.S.No.6 of 1996 as well as in the other three suits that the plaintiffs had failed to establish that the decree in O.S.No.161 of 1979 was obtained by fraud and was collusive, and since the appeals against the other three suits were dismissed, the said finding had become final, and precludes the plaintiffs in O.S.No.6 of 1996/appellants in this appeal from canvassing the correctness of the said finding on account of bar of res judicata. He cited Premier Tyres Limited Vs. Kerala State Road Transport Corporation , Harbans Singh andOthers Vs. Sant Hari Singh and others , Saroja Vs. Chinnusamy (dead) by L.Rs. and Another , and Brij Narain Singh Vs. Adya Prasad (dead) and Others and Asharfi v. Smt.Koili .
65. Sri C.V.Mohan Reddy, learned Senior Counsel for Sri T.Balaji, learned counsel for 4th respondent/4th defendant also reiterated the submissions of the other counsel that the preliminary decree in O.S.No.161 of 1979 was not vitiated by fraud or collusion; that the property which was possessed by Chenga Reddy was his self acquired property; on his death Pedda Munemma is entitled to a share therein as per Hindu law. He submitted that all the defendants in O.S.No.161 of 1979 were illiterates/coolies and therefore merely because they did not mention about Ex.A-2 partition deed dt.11-04- 1979 or Ex.A-1 sale deed in the written statement, they cannot be held to have played fraud or acted in collusion with each other to defeat the rights of the plaintiffs; that in fact the land purchased by the plaintiffs under Ex.A-1 is incapable of identification; the advocate who conducted the case O.S.No.161 of 1979 for defendants therein/the respondent Nos.2 to 13 should be blamed for not conducting it properly, since he did not ask them to produce Exs.A-1 and A-2, did not implead the plaintiffs, and did not re-examine Valiamma after she admitted in the cross-examination that the property was the self acquired property of Chenga Reddy. He also contended that the plaintiffs did not cross examine 1st defendant about the alleged collusion between Pedda Munemma and other defendants in O.S.No.161 of 1979 and therefore there cannot be any inference of fraud or collusion in the facts and circumstances of the case.
66. The learned counsel for the appellants refuted the above contentions and pointed out that fraud and collusion are different and both existed in O.S.No.161 of 1979; that both are secretive and the plaintiffs cannot be expected to know particulars thereof and mention them in the pleadings; collusion is not an event but is a course of conduct both anterior and posterior to the attempt to implement the collusive design; the subsequent conduct is also corroborative of the collusion between the parties and the additional evidence filed by the appellants is therefore relevant. He also contended that it is not necessary to file an independent suit to set aside the decree in O.S.No.161 of 1979, or to seek a declaration specifically that the decree therein was obtained as a result of fraud and collusion, and it is sufficient if the decree therein is shown to have been obtained as a result of fraud and collusion, in view of Section 44 of the Evidence Act, 1872. He asserted that in the present case, if a finding is given that either the preliminary or the final decree or both, is/ are vitiated by fraud or collusion, the plaintiffs are entitled to the relief of declaration of title prayed for since Ex.A-1 sale deed has not been denied by the defendants. He contended that the Advocate Commissioner appointed by this Court in his report Ex.A-31 had given a finding that the plaintiffs are in possession of the property as on 30-03-1999; that 1st defendant has admitted in para.11 of her written statement in this suit, that Ac.0.15 cts purchased by the plaintiffs fell in the share allotted to her in the final decree dt.23-03- 1989 in O.S.No.161 of 1979; and also admitted in her evidence as DW.1 that the house and shed with asbestos sheets in the site allotted to her in the final decree was raised by the plaintiffs. So, notwithstanding the report of the Court Amin in E.P.No.35 of 2000 (Ex.A-52) filed by 4th and 5th defendants herein, the plaintiffs have to be held to be in possession of the property purchased by them under Ex.A-1, particularly in view of the recital in Ex.A-1 about delivery of possession. He also contended that if collusion is apparent on record, then Order VI Rule 4 which requires a specific pleading would not apply. He therefore prayed that the suit be decreed.
67. I have noted the submissions of all the parties.
THE POINTS FOR CONSIDERATION IN THE APPEAL
68. From the above contentions of the parties, the following points arise for consideration in this appeal:
(a) Whether the respondents are entitled to plead that the property purchased by the appellants under Ex.A-1 is incapable of identification?
(b) Whether, in the facts and circumstances of the case, the preliminary decree dt.18-10-1985 in O.S.No.161 of 1979 of the Principal Subordinate Judge, Tirupati is vitiated by fraud and/or collusion?
(c) Whether, in the facts and circumstances of the case, the final decree dt.23-03-1989 in I.A.No.830 of 1988 in O.S.No.161 of 1979 of the Principal Subordinate Judge, Tirupati is vitiated by fraud and/or collusion?
(d) Whether the finding of the court below that the omission of PW1 to mention the words collusion and fraud in his deposition as PW.1 disentitles the appellants/plaintiffs to any relief in the suit, is sustainable?
(e) Whether the purchase by the appellants of the plaint schedule property in O.S.No.6 of 1996 under Ex.A-1 dt.13-10-1981 is hit by the doctrine of lis pendens?
(f) Whether it is necessary to the appellants to seek the relief of declaration that the said preliminary and final decrees in O.S.No.161 of 1979 are vitiated by fraud and/or collusion and are unenforceable or to file a suit to set them aside?
(g) Whether the withdrawal of A.S.Nos.1713 of 1998, 1715 of 1998, 1716 of 1998 by the appellants therein has any effect or bearing on this appeal?
(h) Whether the appellants are entitled to any reliefs? and if so, to what relief?
THE ANALYSIS OF THE POINTS FOR CONSIDERATION Point (a):-
69. The admitted facts in the present case are that the plaintiffs had purchased under Ex.A1 dt.13.10.1981, an extent of Ac.0.55 cts in Sy. No.7/1B and 7/1C within the boundaries mentioned therein from Valliamma, Govinda Reddy (Defendant No.2), late Varamuni Reddys wife (Defendant No.3) and her children (Defendant Nos.4 and D-5). There is no written statement filed by Defendant Nos.2 to D-13 denying the execution of this sale deed in favour of the plaintiffs or raising a plea that the property sold to the plaintiffs is incapable of identification. No evidence in this regard was let in by them. Therefore it is not open to Defendant Nos.2 to 13 to contend in this appeal that the property sold to the plaintiffs is incapable of identification. No purchaser of property would buy land which is incapable of identification, since disputes might arise interfering with his enjoyment of the property. The sale deed recites specifically about delivery of possession of the property sold under it to the plaintiffs. Therefore I reject the contention of the defendants that the property sold to the plaintiffs is incapable of identification. Point (b) :-
70. Section 52 of the Transfer of Property Act, 1882 states:
52. During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right of immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
71. Thus if the decree is collusive, it will not affect a transfer of immovable property which had occurred pending the suit, the right to which is specifically in issue in the suit.
72. Section 44 of the Evidence Act,1872 says:
44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved : --
Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
73. In Gram Panchayat of Village Naulakha ( 6 supra), the Supreme Court held that Collusion is essentially play acting by two or more persons for one common purpose a concerted performance of a fibula disguised as a judicium an unreal and fictitious pretence of a contest by confederates whose game is the same.
74. In Nagubai Ammal (7 supra), the Supreme Court pointed out the distinction between a fraudulent and collusive proceeding. It held:
15. Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose.
(Wharton's Law Lexicon, 14th Edn., p. 212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest.
(emphasis supplied) This was reiterated in Sukhnandan Singh v. Jamiat Singh . In that case, the Supreme Court held:
7. .Collusion in judicial proceedings is normally associated with secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding the claim put forward is fictitious, the contest feigned or unreal and the final adjudication a mask, designed to give falls appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. (emphasis supplied)
75. In this appeal, I will consider if there was collusion or fraud in the conduct of O.S.161/1979; if so, whether it was there from inception or it occurred later; if such collusion was not at the inception of O.S.161 of 1979 but occurred later, would it affect the sale deed Ex.A1?
76. Before I answer this question, I will consider whether doctrine of lis pendens would bind a transferee pendente lite, if collusion is proved to exist, not at the inception of the suit, but after the institution of the suit.
77. This question was considered in Ramanagouda (1 supra) and was answered in the negative. The Karnataka High Court held that it is not necessary that collusion should be there at the inception of the suit and that even subsequent to filing of the suit, if there is collusion among the parties to the suit, the transfer of immovable property pending the suit, would be saved. The Court held:
23.Thus one of the important ingredients for application of the principle of lis pendens is that the suit should be non-collusive in character. But then the further question is whether the element of collusiveness must be present necessarily at the inception of the suit or subsequently arise, it begins to operate resulting in a decree obtained either by compromise or otherwise, though the institution of the suit at the inception was honestly done. On this question, various High Courts have taken the view that even when the suit is honestly instituted but during trial or later if parties, enter into a compromise collusively and obtain a decree which affects the transaction of transfer of immovable property, then the doctrine of lis pendens has no application evidently on the principle of equity. Sufficient for my purposes to refer to few of the decisions sited at the Bar. The Travancore and Cochin High Courts in the case of Lekshmi Gnanapakiam, supra, has held:
"The rule of lis pendens will apply to compromise decrees but will not apply only if the compromise was not result of fraud or collusion. A suit may be collusive in its very inception or a decree may be obtained by collusion in a suit which was honestly begun. When the parties to a suit enter into an agreement for the express purpose of defeating the rights of a transferee pendents lite and a decree is passed in terms of the agreement, the doctrine of lis pendens will not apply to the case".
24. The Bombay High Court in Nathu Dhoju Gholap v. Ramchand Balchand and Anr., has also taken the view that the rule of lis pendens applies to the compromise decrees also provided, the compromise is honest and not fraudulent or collusive. It has also, been held that since appeal is a continuation of a suit, Section 52 applies even to decrees obtained in appeal, provided as stated they are not collusive. Similar is the view of the Patna High Court in the case of Juthan Tewari and Ors. v. Parasnath Singh and Anr., of the Oudh High Court, Sat Narain Singh's case, supra.
25. I am in respectful agreement with the views expressed by the Bombay and Calcutta High Courts as the doctrine of lis pendens being essentially a doctrine of equity, and fraud and collusion, being antithesis of equity, cannot be encouraged by Courts nor any decrees obtained by fraud or collusion can defeat the rights of the alienees of immovable property. (emphasis supplied)
78. In Mahaboob Sahab v. Syed Ismail , the Supreme Court held that there can be no question of res judicata in a case where signs of fraud or collusion are transparently pregnant or apparent from the facts on record.
79. In the decision in Saroja (16 supra), cited by counsel for respondents, in a former suit, an ex parte decree was passed against K during pendency of a subsequent suit between purchaser from K and plaintiff. Since the same matter was directly and substantially in issue in both suits, in the absence of fraud and collusion, it was held that the decision against K would bind the purchaser from K, even if he is not a party to the former suit since the principle of res judicata applies. This implies that if fraud /collusion is proved, then the principle of res judicata would not apply.
80. Keeping the above principles in mind, I will now consider whether collusion or fraud vitiated the proceedings in O.S.161 of 1979.
81. There is no dispute that Ex.A-1 sale deed contains a recital that the property which is sold to the appellants is pithrarjitham, and that the vendors had obtained this property under a registered partition deed Ex.A-2 dt.11-04-1979 among Valliamma, Govinda Reddy and late Varamuni Reddys branch represented by his wife 3rd defendant also representing defendant Nos.4 and 5, who were minors. Even Ex.A-2 mentions that the land which is being partitioned is pithrarjitham. The said word indicates in common parlance that the property is ancestral property. Ex.A-2 also states that it is a joint kutumba pala bhaga parishkara patram and also contains a recital that the parties to it are Hindu Avibhaga Kutumbasthulamu. The former suggests that Ex.A-2 is a partition of joint family property and the latter indicates that the parties to it are members of a Hindu Undivided Family. In view of these recitals in Ex.A2, I do not accept the contention of the counsel for respondents that the word pithrarjitam indicates that the property was purchased by father i.e., it is his self acquired property. If this was how it was understood by 2nd defendant, Varamuni Reddy and Valliamma, then they should have mentioned in Ex.A.2 that there are two daughters Pedda Munemma and defendant No.6 too, and they should have given a share to them. In the alternative they should have mentioned why they were not being given anything.
82. There is no reference made in Ex.A-2 to Ex.A-3( the order passed on 05-01-1970 under the Andhra Pradesh Splitting of Joint Pattas Act, 1965 dividing the land in Sy. No.7/1 of Akkarampalli village between Chenga Reddys children (Defendant no.2 and Varamuni Reddy) and four others). There is also no reference in Ex.A-2 to Ex.B-1 and B-2( the judgment and decree in O.S.No.352 of 1943 before the District Munsifs Court, Tirupati filed by Chenga Reddy for Occupancy Rights or to a patta under the provisions of A.P. (Andhra Area) Estates Abolition and Conversion into Ryotwari Act, 1948).
83. It is the contention of the respondents that Exs.B-1, B-2 and Ex.A-3 would show that the property is the self acquired property of Chenga Reddy and that therefore there is nothing wrong with the judgment and decree in O.S.No.161 of 1979 granting a preliminary decree for 1/5th share in favour of Pedda Munemma. If so, then respondents 2 to 13 need to explain why they did not mention in Ex.A-2 that the property is the self acquired property of Chenga Reddy and instead mentioned that the property is the ancestral property of Chenga Reddy. They also need to explain why there is no reference made in Ex.A2 to the documents Ex.A-3, Exs.B-1 and B-2. Such explanation is not forthcoming from them since they have not filed written statements in O.S.No.6 of 1996 out of which this appeal arises and they have also not entered the witness box.
84. Moreover, under Ex.A16, an Award No.2 of 1988 dt.11.3.1988, an extent of Ac.0-04 cents in Sy.No.7/1B and Ac.0-04 cents in Sy.No.7/1C was acquired by the State for forming of 100 feet wide road. In the said Award enquiry, the 3rd defendant appeared before the Land Acquisition Officer and stated that under the regd. partition deed Ex.A-2 dt.11-04-1979, only the 2nd defendant was entitled to payment of compensation for the extent of Ac. 0.04 cts of land in Sy.No.7/1C, and she had no objection if compensation for this land is paid to 2nd defendant. Thus, Ex.A-2 partition deed dt.11-04- 1979 was acted upon by defendant Nos.2 to 5. How the defendants could take a stand in these Land Acquisition proceedings initiated in 1987 that Ex.A2 partition deed represents the correct factual position, while contending : (i) in the suit O.S.161 of 1979 that there was only an oral partition in 1965 (without mentioning about Ex.A2); and (ii) in the present appeal that the property was self acquired property of Chenga Reddy, is not explained by them. They cannot be allowed to approbate and reprobate as per their convenience.
85. In C. Beepathuma v. Velasari Shankaranarayana Kadambolithaya , the Supreme Court explained the concept of approbate and reprobate/doctrine of election in the following manner:
17. The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it.
(see Maitland's lectures on Equity Lecture 18) The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows:
Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both.... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument.
18. The Indian courts have applied this doctrine in several cases and a reference to them is hardly necessary. We may, however, refer to a decision of the Madras High Court in Ramakottayya v.
Viraraghavayya where after referring to the passage quoted by us from White and Tudor, Courts Trotter, C.J. observed that the principle is often put in another form that a person cannot approbate and reprobate the same transaction and he referred to the decision of the Judicial Committee in Rangaswami Gounden v. Nachiappa Gounden. Recently, this Court has also considered the doctrine in Bhau Ram v. Baij Nath Singh.
19. The short question is whether, in the words of the Scottish lawyers Kunhi Pakki can be said to have approbate Exs. P-2 and P-2(a) and therefore his successors-in-title cannot now reprobate them. In this connection, Exs. P-3 and P-4 quite clearly show that Kunhi Pakki considered that he was bound by Ex. P-2(a) and the mortgagors were bound-by Ex. P-2. His taking of the mortgage of the released properties clearly indicated that he accepted that the mortgagors were released from the obligations of Ex. P-1. In Ex. P-3, he took the mortgage of the released properties for a period of 32 years which made the two mortgages run for an identical term, and that document referred to the earlier transaction as one under an Avadhi Illida Arwar (usufructuary mortgage with a time limit) which indicated that the time limit imposed by Exs. P-2 and P-2(a) was in his contemplation. In all subsequent documents, reference is to be found to the Illida Arwar and the reference is not only to the 3-16 share of Cheriamma but to the entire 7-16 share of Kunhi Pakki, that is to say, his original share of 1/4 obtained by him through his father by Exs. P- 6 and 3/16 share which he obtained later. In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-
2. Having in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakki's 1/4 share now in the possession of the present appellants through Defendant 8. (emphasis supplied) This principle has been reiterated in several cases by the Supreme court later .
86. Admittedly there is a reference to Ex.A-2 partition deed dt.11.4.1979 in Ex.A-1 and it appears that the plaintiffs were shown only Ex.A-2 and made to believe that none else, other than the parties to it, had any right, title or interest in the property being sold under Ex.A-1. Had the plaintiffs been aware that the property being sold under Ex.A-1 is the self acquired property of Chenga Reddy and had they been informed that Late Chenga Reddy had two daughters Pedda Munemma (the mother of Respondent No.1/Defendant No.1) and Muniratnamma (Defendant No.6/Respondent No.6), since they would also be having interest or share in the property being sold, the plaintiffs would have insisted that these two persons also join Ex.A-1 as executants. Even if the property were to be treated as ancestral property of Chenga Reddy, since the daughter Pedda Munemma had no share therein except as a class I heir of Chenga Reddy, she would still get only 1/15th share in 1979 (1/5th share in his 1/3rd share). But the very existence of Pedda Munemma and Defendant no.6 was not disclosed to plaintiffs.
87. Thus, it appears that Valliamma and Defendant No.s 2 to 5 had executed Ex.A-2 on 11-04-1979 with false recitals deliberately.
88. When Pedda Munemma filed the suit O.S.no.161 of 1979 on 10-10-1979 alleging that the extent of Ac.3.96 cts was the self acquired property of Chenga Reddy and on his death she is entitled to 1/5th share, Valliamma, and Defendant no.s 2 to 6 herein, who were impleaded as defendants in that suit, filed a written statement (Ex.A-
33) through defendant No.2 denying the averment of the Pedda Munemma that the properties were self acquired properties and asserting that they were ancestral properties. Ex.A.2 partition deed dt.11.04.1979 between Valliamma, Govinda Reddy and Varamuni Reddy was suppressed by all the defendants therein.
89. While the said suit was pending, without informing about the pendency of the suit O.S.No.161 of 1979 and the claim of Pedda Munemma for a share in the properties of Chenga Reddy, Ex.A-1 sale deed was executed in favour of the plaintiffs herein. No reason is forthcoming from Defendant No.s 2 to 5 why they did not inform the plaintiffs about O.S.No.161 of 1979 and sold the property misrepresenting that only they had a right to convey it and giving an impression that none else (such as Pedda Munemma and Defendant No.6) had any right, title or interest in the property.
90. Valiamma and defendant Nos.2 to 6 have not acted in a bonafide manner and have clearly acted with an intention to play fraud on the plaintiffs since the plaintiffs , if they had known of the litigation in respect of the property which they had proposed to buy under Ex.A-1, might well have declined to go ahead with the purchase.
91. Having pleaded in O.S.No.161 of 1979 about the property being ancestral property, Valliamma gave evidence as D.W.1 therein stating that the properties are self acquired properties of Chenga Reddy. She thus admitted the case of Pedda Munemma/plaintiff therein. Having alleged in the written statement filed in that suit that there was an oral partition in 1965 immediately after the death of Chenga Reddy, and that there was an alleged relinquishment by Pedda Munemma of her share in the properties of Chenga Reddy on being given allegedly the house bearing Door No.320 by Chenga Reddy, Defendant No.s 2 to 6 and Valliamma did not adduce any evidence that house bearing Door No.320 was purchased by Chenga Reddy in the name of Pedda Munemma and did not examine any person connected with the sale deed. The alleged oral relinquishment by Pedda Munemma of her share in the property of Chenga Reddy was not accepted by the Principal Subordinate Judge, Tirupathi on the ground that without a written registered document by way of oral agreement there cannot be a relinquishment of interest in property; and the alleged oral partition of 1965 pleaded by them O.S.No.161 of 1979 was disbelieved on the ground that separate and exclusive possession of the shares or payment of property tax after the alleged partition of 1965, were not proved.
92. The true facts i.e. that there was a registered partition deed Ex.A-2 dt.11-04-1979 and that there was a sale pendente lite under Ex.A-1 dt.13-10-1981 in favour of the plaintiffs, were deliberately suppressed from the Court.
93. The counsel for respondents contended that filing of Ex.A-2 in O.S.No.161 of 1979 was unnecessary as even if it is filed, it would not have prevented the Pedda Munemma from getting a decree there. I am unable to agree. The question is not what Pedda Munemma would have got in O.S.161 of 1979, but why Ex.A2 was suppressed, particularly when it is relied in Land Acquisition proceedings Ex.A3 and showing Ex.A2, the plaint schedule property was sold to the plaintiffs under Ex.A1.
94. The counsel for respondents contended that they did not get any advantage by suppressing Ex.A2 partition deed and Ex.A1 sale deed in O.S.161 of 1979. I am unable to agree. The question is not one of advantage to the respondents/defendants, but what was the disadvantage caused to the appellants/plaintiffs in O.S.6/1996, who had purchased the plaint schedule property under Ex.A1, unaware of the said suit. The disadvantage to the plaintiffs is obvious- their investment and future acts of making constructions therein, are put to risk.
95. In my opinion the above facts would clearly indicate that although at the time when O.S.No.161 of 1979 was instituted, there might not have been any collusion among Pedda Munemma, Valliamma and Defendant Nos.2 to 6 herein who were also parties there, their subsequent conduct leading to the passing of preliminary decree in the said suit (Ex.A-19) clearly indicates a secret arrangement among them to injure/harm the plaintiffs. It also facilitated Pedda Munemma to get 1/5th share in the properties of Chenga Reddy, instead of a lesser 1/15th share, which she would have got if the property were his ancestral property. Thus these sinister designs was achieved to the detriment of plaintiffs.
96. Since the existence of Exs.B-1, B-2 (the judgment and decree in O.S.No.352 of 1943 filed by Chenga Reddy for occupancy rights), Ex.A-3 order dt.05-01-1970 splitting of the pattas, the execution of Ex.A-2 partition deed and Ex.A-1 sale deed in favour of the plaintiffs was suppressed by Valliamma and Defendant Nos.2 to 6 from the Court as well as Pedda Munemma in O.S.No.161 of 1979 and Exs.B-1, Ex.B-2, Ex.A-3 and the filing of O.S.No.161 of 1979 were not disclosed to the plaintiffs by Valliamma and Defendant Nos.2 to 6, it has to be held that they played fraud on the Court and also on the plaintiffs. They cannot be allowed to enjoy the fruits of such fraud.
97. In S.P.Chengalvaraya Naidu (8 supra), the Supreme Court has held that a litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation and if he withholds a vital document in order to gain advantage on the other side, then he would be guilty of playing fraud on the Court as well as on the opposite party.
98. In Bhaurao Dagdu (9 supra), the Supreme Court reiterated that suppression of material document would also amount to a fraud on the Court. It held that fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of a former either by words or letter. It held that although negligence is not fraud, but it can be evidence on fraud and followed the judgment in Ram Preethi Yadav Vs. U.P.Board of High School and Intermediate Education . The Supreme Court reiterated that no judgment of a Court can be allowed to stand if it has been obtained by fraud since fraud unravels everything. Similar view was expressed in Divisional Forest Officer, Eluru (13 supra) by a Division Bench of this Court. It also held that a judgment obtained by playing fraud on the Court is a nullity, non-est in eye of law and it can be assailed in any court even in collateral proceedings.
99. In Badami (deceased) (4 supra), the Supreme Court reiterated that parties must come to the Court with clean hands and a person whose case is based on falsehood, has no right to approach the Court; that a litigant who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation and if a vital document is withheld in order to gain advantage on the other side, he would be guilty of playing fraud on the Court as well as on the opposite party.
100. In Lachhman Dass (5 supra), the Supreme Court held that even though collusion among the parties was required to be pleaded specifically by the parties, but if the collusion is apparent on the face of record, even if there is no specific plea, relief cannot be denied to the party affected thereby.
101. It was also contended on the part of respondents that the defendants in O.S.161 of 1979 are illiterate people and probably on account of the said reason they did not disclose all facts to their counsel to be placed before the Court. They relied on Asharfi Lal (18 supra) and contended that negligence, or gross negligence cannot be treated as fraud or collusion, unless fraud or collusion is the proper inference from the facts. This contention is without substance since the same parties had executed Ex.A2, the registered partition deed dt.11.4.1979 and thereafter Ex.A1, a registered Sale deed dt.13.10.1981 in favour of the plaintiffs by going through the procedure of registration and also relied on Ex.A2 in the land acquisition proceedings Ex.A3. In the present suit they are relying on Exs.B1, B2 and A3. As discussed in the earlier paras, having pleaded that property is ancestral property, Valliamma admitted that the property is self acquired property of Chenga Reddy and she and Defendant nos.2 to 6 pleaded an oral partition in 1965 and an oral relinquishment by Pedda Munemma. Thus they seem to be intelligent enough to rely on Ex.A2 when it suits them, and ignore it when it does not suit them. Therefore even if they are illiterate, obviously they are clever and intelligent and cannot escape the consequences of their conduct. Moreover, there is no plea in the present suit O.S.6/1996 by defendants/respondents that they were negligent in the conduct of O.S.161 of 1979. So in view of the evidence on record I hold that this is not a case of negligence of Valliamma and Defendant Nos.2 to 6 but deliberate and calculated suppression of facts from the Court as well as the plaintiffs.
102. Also in Ram Preeti Yadav v. U.P.Board of High School and Intermediate Education and in Bhaurao Dagdu Paralkar (9 supra), the apex court held that although negligence is not fraud but it can be evidence on fraud. So I am not inclined to follow the decision in Asharfi Lal (18 supra).
103. It is also contended by respondents that probably the counsel for the defendants in O.S.161 of 1979 was negligent in placing these documents before the Court or in impleading the plaintiffs herein in that suit and such negligence of counsel cannot be allowed to affect the respondents. I am unable to agree with this submission also. Parties cannot suppress documents from Court and conveniently blame their counsel for being negligent. In fact there is no plea raised by them that on account of their advocates negligence they could not properly defend O.S.161 of 1979 and even if there is such a plea, without giving notice to the counsel, a finding against him cannot be given, for it might affect his professional career and reputation.
104. The counsel for respondents contended the plaintiffs did not cross examine Kamalamma, the 1st defendant herein about the alleged collusion between Pedda Munemma and other defendants in O.S.No.161 of 1979 and therefore there cannot be any inference of fraud or collusion in the facts and circumstances of the case. This contention is without merit. Admittedly Pedda Munemma died after passing of the preliminary decree in O.S.161 of 1979 and pending A.S.No.70 of 1986, and only then, the 1st defendant was impleaded as her legal representative. The 1st defendant stated as DW1 herein that she had no personal knowledge about filing of suit by her mother Pedda Munemma. Therefore no purpose would have been served by cross examining the 1st defendant about collusion in O.S.161 of 1979 since she was not a party in the trial court in that suit.
105. In view of the above, I have no hesitation in holding that the preliminary decree dt.18.10.1985 in O.S.No.161 of 1979 of the Principal Subordinate Judge, Tirupati is vitiated by fraud and collusion. Point (a) is accordingly answered in favour of the appellants and against the respondents.
Point (c):-
106. Now I will consider whether the final decree dt.23-03-1989 in I.A.No.830 of 1988 in O.S.No.161 of 1979 of the Principal Subordinate Judge, Tirupati is vitiated by fraud and/or collusion. The discussion under this point is necessary because even if the preliminary decree is not vitiated by fraud and collusion (as held by me on point (b)), still the final decree dt.4.7.1989, as we shall see below, can undoubtedly be said to have been vitiated by fraud and collusion. In fact the events after the preliminary decree in O.S. No.161/1979 discussed below would leave no doubt about the collusive design of the defendants/respondents to harm the plaintiffs and play fraud on the Court.
107. It is on record that AS.No.70 of 1986 was filed before the III Addl. District Judge, Chittoor at Tirupati by the Defendant no.s 2-6 and Valliamma against the preliminary decree in O.S.161 of 1979. In my opinion, considering the manner in which O.S.161 of 1979 was defended by them, even the filing of the said appeal was a futile gesture intended only to give an impression that there was some sort of opposition to the claim of Pedda Munemma, without any real desire to contest it. This is clear from the following facts.
108. The 1st defendant herein had stated in her written statement in O.S.6 of 1996 that pending A.S.70 of 1986, in IA.No.20 of 1986 in AS.No.70 of 1986 there was a direction to Valliamma and Defendants 2- 6 herein/ appellants therein, to deposit into Court as a condition for grant of stay of passing of final decree in O.S.161 of 1979, a sum of Rs.400/- per year towards the 1/5th share of Pedda Munemma. She also stated that they did not deposit the said sum of Rs.400/- per year pending the appeal which resulted in the vacation of the stay of passing of final decree granted by the appellate court. This conduct on the part of Valliamma and Defendant Nos.2 to 6 also indicates that they wanted to facilitate passing of final decree in O.S.161 of 1979 and so deliberately did not comply with the said conditional order.
109. I.A.830/1988 was filed by Defendant no.1/Kamalamma for passing of final decree in O.S.161/1979. She also sought appointment of an Advocate Commissioner to divide the plaint schedule properties in O.S.161 of 1979. Ms. T. Sarvabhamini, an advocate, was appointed as Commissioner by the Court on 11.10.1988 to carry out this duty. The said Advocate Commissioner submitted Ex.A.21 report to the Court. She stated therein that between 29.10.1988 and 17.12.1988 she visited the property and noticed that the land in Sy.No.7/1B and 7/1C is vacant except for a small house roofed with asbestos sheets at the southern end in Sy.No.7/1C. On the suggestion of the parties and advocates, she proposed to divide Item.1 of the plaint schedule properties in OS.No.161 of 1979 into five plots and as regards Items 2 and 3 to divide only the 1/5th share of Pedda Munemma, leaving the rest of land as joint. It is the admitted case of the 1st defendant that Ac.0.15 cents of the property purchased by the plaintiffs was allotted to her and that there was a house and shed with asbestos sheets raised by the plaintiffs therein. Thus the respondents/defendants ensured that the Advocate Commissioner proposed to the Court to allot Ac.0.15 cts (out of Acs.0.55 cts purchased by the plaintiffs under Ex.A1) to 1st defendant and not to the plaintiffs vendors Valliamma and Defendant Nos.2 to 5. Had the plaintiffs been aware or if the Advocate Commissioner or the Court was made aware of plaintiffs interest in Ac.0.55 cts, it is possible that this land would have been allotted to the shares of plaintiffs vendors Valliamma and Defendants Nos.2 to 5, so that the plaintiffs would suffer no detriment. But this was deliberately not done.
110. On the basis of the said report and a Joint Memo filed by the parties agreeing to the allotment of shares as per the Advocate Commissioners report and plan, the final decree was passed on 23.03.1989 in IA.No.830 of 1988.
111. The Advocate Commissioner was not informed about the death of Valiamma in the meanwhile. On account of the said event, Pedda Munemma, 2nd defendant, Late Varamuni Reddys branch (defendant Nos.3 to 5) and 6th defendant would each get 1/4th share instead of a smaller 1/5th share. Although the Court was informed of this fact by way of Memo, without applying its mind, it passed the final decree accepting the Advocate Commissioners report Ex.A21 blindly.
112. This also indicates that the contest among respondents in O.S161/1979 is sham and make believe, for no decree holder would normally forego a larger share (of 1/4th) and accept a lesser share (of 1/5th).
113. No attempt was made by Defendants to get the appeal A.S.70/1986 heard before the final decree is passed in O.S.161/1979 and in fact the design seemed to be to render it infructuous. This indicates a malafide and collusive design on the part of Defendant Nos.2 to 6 to ensure that the plaintiffs investment, purchase and the constructions put up by them would be lost by them to 1st defendant.
114. Even the report Ex.A.21 of the Advocate Commissioner in OS.No.161 of 1979 does not reflect the true state of affairs since the said Advocate Commissioner clearly colluded with the defendants and their advocates and filed a report on their dictation containing wrong facts. In my opinion, it is difficult to even believe that the said Advocate Commissioner visited the property even once. This is proved by the following facts.
115. As stated above, by a common order dt. 17.02.1999 in CMP.Nos. 3068 of 1999 in this appeal, and in CMP No.s.20157, 20167, 20168 of 1999 in the connected appeals, this court appointed Sri N. Siva Reddy, Advocate, High Court of Andhra Pradesh as an Advocate Commissioner to visit the extent of Acs.3.96 cents belonging to the defendant, to note down the physical features of the land and structures standing therein, to determine the age of the structures with the help of the Municipal records and submit a report to the Court as to who was in actual physical possession of the said property as on 17.02.1999.
116. His report dt.30.03.1999 marked as Ex.A.31. It indicates:
(i) He found that five structures bearing D.Nos.20-3-88/E, 20-3-88/E1, 20-3-88/E2, 20-3-89/1, 20-3-89/4 which were existing in the land were assessed on 01.04.1984, 01.04.1984, 01.04.1986, 01.04.1986 and 01.10.1987. One of the buildings D.No. 20-3-89/1 housed the office of the Assistant Engineer, Postal Civil Sub-Division, Tirupathi and the Executive Engineer, Postal Civil Division, Hyderabad had informed the Advocate Commissioner that the said building had been in existence from 13.08.1987 onwards.
(ii) He also noted that the structure bearing H.No.20-3-88/F of the 1st plaintiff had been assessed by the Municipality on 01.09.1989 and that it was an RCC structure admeasuring 18 x 80 and was in the occupation of 8 tenants; that there was vacant land to the northern side of the said building which is in the possession and enjoyment of the appellants/plaintiffs; there was a old zinc sheet shed on the eastern side of the building and a well, electric motor and pump set were also there.
117. No objections appear to have been filed to this report. It was feebly contended by respondents that the Advocate Commissioner appointed by this Court did not identify the land purchased by plaintiffs under Ex.A1. This is no doubt true, but he was not asked to do so in the order appointing him or under the warrant issued to him. He was asked to visit the extent of Ac.3.96 cts which is subject matter in O.S.161/1979 (which admittedly included the Ac.0.55 cts purchased by plaintiffs) and report on the above mentioned facts. So the fact that he did not identify specifically the property sold to plaintiffs, is irrelevant. This Court obviously wanted to check the truth and veracity of the report Ex.A21 submitted by the Advocate Commissioner appointed by the trial court.
118. So by the date of visit of the Advocate Commissioner appointed by the Trial Court commencing from 29.10.1988, the structures mentioned in para.116 were thus existing on the said land, but the said Advocate Commissioner had found only one small house roofed with asbestos sheets at the southern end in Sy.Nos.7/1C and nothing else, not even the building in occupation of Assistant Engineer, Postal Civil Sub-Division, Tirupathi, a Government office. This indicates that the Advocate Commissioners report Ex.A.21 is factually incorrect and is a false report prepared by her to help the Defendants to play fraud on the court and help them to get a final decree behind the back of the plaintiffs. It is unfortunate that even the Advocate Commissioner appointed by the trial court, who is supposed to be an officer of the Court, acted in this manner..
119. The collusion among the defendants appears to have continued even after passing of the final decree.
120. Ex.A.4 is a notice issued by the Tirupathi Municipality to the plaintiff No.1/appellant no.1 on 21.11.1988 stating that he had erected RCC pillars in the land purchased by him without obtaining prior permission from the said authorities. It was later regularized and allotted H.No.20-3-88/F and was assessed to tax by the Municipality on 01.09.1989.
121. The plaintiffs came to know about the litigation among the defendants for the first time when the Court Amin appointed in EP.No.79 of 1989 filed by Pedda Munemma wanted to deliver to her the above structure erected by the plaintiffs by demolishing the same.
122. The collusive conduct of the respondents/defendants is further apparent from the following facts.
123. Defendant Nos.3 to 5 in the present suit filed EP.No.35 of 2000 for delivery of possession against Defendant Nos.1, 6 and 8 without impleading the plaintiffs herein (Ex.A.45). When defendant Nos. 3 to 5 had sold under Ex.A1 the plaint schedule property to the plaintiffs, and had also delivered also possession to them as recited therein, why they did not implead the plaintiffs in the E.P, is obvious. In fact Ex.A31, the report of the Advocate Commissioner appointed by this Court reveals that the plaintiffs herein were in possession on the date of his visit on 27/28.2.1999 which took place in the presence of 4th respondent/4th defendant. So inspite of being aware that plaintiffs are in possession, they deliberately did not implead them and filed the EP against persons who are not in possession. Even the warrant Ex.A.49 issued to the Court Amin wrongly showed that Defendant Nos.1, 6 and 8 were in possession of the property.
124. Respondent no.4 stated in the affidavit filed in support of E.P.35/2000 that there is no appeal against judgment in O.S.161 of 1979. This is a false plea, since by then A.S.70 of 1986 was filed and was dismissed on 4.7.1989. On 02.03.2000, Defendant Nos.1, 6 and 8 herein appeared before the executing court in EP.No.35 of 2000 and reported that they had no objection for delivery of possession of the EP schedule property. EA.No.97 of 2000 was filed by Defendant Nos. 3, 4 and 5 herein (in EP.No.35 of 2000) to advance the EP from 04.04.2000 to 02.02.2000 (Ex.A.47). A Memo was also filed by Defendant Nos.1, 6 and 8 herein/respondents in EP.No.35 of 2000 stating that they have no objection to the delivery of possession of EP schedule property to Defendant Nos.3, 4 and 5. This also shows the anxiety of Defendant nos.1, 6 and 8 to collude and co-operate in all respects with Defendant Nos.3, 4 and 5. If all the parties to the said EP were keen that Defendant nos.3,4 and 5 should get possession, there was no necessity even to file the EP.No.35 of 2000.
125. The report dt.06.03.2000 of the Court Amin in EP.No.35 of 2000 (Ex.A.49) noted that there was obstruction from a third party (the plaintiffs herein) and even suggested grant of police aid to enable him to execute the warrant of delivery of possession to the petitioners in the EP. EA.No.102 of 2000 was filed by Defendant Nos.4 and 5 herein (in EP.No.35 of 2000) on 6.3.2000 seeking police aid to facilitate delivery of possession of the EP Schedule property (Ex.A.50). On 06.03.2000, Defendant Nos.4 and 5 filed a memo stating that the police aid be granted to the Court Amin (Ex.A.49) on the basis of which, the executing court, instead of directing them to file an application under Order XXI Rule 97 CPC in view of obstruction by plaintiffs, straightaway granted police aid to the Court Amin vide Ex.A.51 dt.06.03.2000 !
126. This Court had directed on 24.03.2000, the Addl. Senior Civil Judge, Tirupathi ( who had passed the said order in EA.No.102 of 2000) to send a report as to how he could have passed such an order in the execution proceedings even though he was aware of an appeal having been filed in this court. The said officer had submitted a report Dis.No.604 dt.10.04.2000 that he had passed the said order because of the plea of the petitioners in the EP.No.35 of 2000 that there was no stay or appeal or order restraining the execution of the decree dt.23.03.1989 in OS.No.161 of 1979. He specifically stated that the delivery of possession was not recorded by the Court even though it was represented that delivery was affected on 31.03.2000 itself.
127. It is also pertinent to note that Defendant Nos.4 and 5 had filed OS.No.351 of 1997 (Ex.A.41-plaint in OS.No.351 of 1997) for perpetual injunction against the plaintiffs herein alleging that after passing of final decree, the properties were being enjoyed separately as per the said decree by the parties to it; and implying thereby that they are in possession of the property allotted to them under the decree, which was being interfered with by the plaintiffs. This pleading of Defendant Nos.4 and 5 herein in OS.No.351 of 1997 is contrary to their pleading in EP.No.35 of 2000 that they were not in possession of the property. If they are really in possession of property, there was no necessity to file EP.No.35/2000 for delivery of possession. OS.No.351 of 1997 was dismissed for non-prosecution (Ex.A.43).
128. EA.No.189 of 2008 (Ex.A.53) was filed in EP.No.18 of 2006 (formerly EP.No.35 of 2000) under Section 47 of CPC by plaintiff Nos.2 and 3 herein contending that they are in possession of the property purchased by them under Ex.A.1 sale deed, that the final decree proceedings dt.23.03.1989 were set aside in AS.No.371 of 1999, that in LPA.No.193 of 2002, the matter was again remanded to the single judge for fresh disposal and since SLPs were pending in the Supreme Court of India against the order in the LPA, there was no final decree in existence and there was no justification to continue the execution proceedings. This is stated to be pending.
129. Exs.A.55 to A.59 (the agreements of sale), A.69 (an Agreement of sale cum- GPA) and A.70 (a regd. sale deed) executed by Defendant no.s 4 and 5 in favour of various third parties clearly indicate the continuing efforts of Defendant Nos.4 and 5 to create third party interests even though they are not in possession of the properties which are subject matter of the said documents to harass the plaintiffs.
130. I have therefore no hesitation to hold that the final decree in OS.No.161 of 1979 is also vitiated by fraud and collusion among the defendants and such fraud and collusion persisted long after passing of the final decree even in execution proceedings. This point is answered accordingly in favour of the appellants and against the respondents.
Point (d) :
131. The trial court in its judgment had observed that none of the witnesses examined by the plaintiffs mentioned about collusion among the defendants in securing the decree in OS.No.161 of 1979; that they stated that they had verified documents and then purchased the land; that it is the duty of the purchaser to verify the details about the property and purchase the same; since the plaintiffs did not speak about the nature of collusion between the defendants, they are not entitled to any relief.
132. The above observations show the perversity of the trial courts judgment. Collusion occurs in secret and it is not a single event. It is a course of conduct anterior and posterior to the attempt to implement the collusive design. It is the duty of the Court to consider the oral and documentary evidence on record and draw an inference as to existence of collusion among the parties to a suit to defeat the rights of third parties like the appellants. It is unfortunate that the Court expected the parties who gave evidence to not only mention facts but also mention their opinion/conclusion that there is fraud or collusion. A witness is normally a witness to a fact and should speak about facts in issue and relevant facts (Section 5 of Evidence Act, 1872) unless he is an expert witness (Section 45 of the Evidence Act, 1872). Here the plaintiff no.1 is not an expert witness. So he cannot say that there is collusion or fraud, and if he did so, it would only be his opinion and such opinion is irrelevant.
133. Section 59 of the Evidence Act, states that all facts except the contents of documents or electronic records may be proved by oral evidence. Section 60 states that oral evidence must be direct; and if it refers to a fact which could be seen/heard/perceived by any other sense or in any other manner, it must be the evidence of a witness who says he saw it/heard it/perceived it by that sense or in that manner.
134. In my opinion fraud or collusion normally occur in secret and are not seen/heard/perceived by any other sense or in any other manner. They are only inferences to be drawn from the course of conduct of parties to a lis, after considering the totality of circumstances and evidence, both oral and documentary, in the case. So they need to be specifically mentioned in the oral evidence of a witness.
135. Therefore mere non-mention of words fraud or collusion by PW.1 cannot be a ground to dismiss the suit. The 1st plaintiff as PW.1 has stated that he perused Ex.A.2 registered partition deed prior to the purchase under Ex.A.1; that his vendors never informed him about the litigation over the suit land when they sold it to him; and they did not disclose to him that there were two daughters of Chenga Reddy. Existence of litigation in respect of property, unless disclosed by the vendors, is difficult to ascertain. Merely because PW1 had stated that he had verified records, the Court cannot blame him for not discovering the litigation O.S.161/1979 and deny him relief.
136. The decision in Kuppuswami Chettiar (11 supra) cited by respondents would not apply to the present case. In that decision, the Court held that there was no specific plea that a deed of release was vitiated on account of misrepresentation and that it must not only be pleaded, but the onus is on the party who raised the plea to prove it. Here there is specific plea of collusion and there is ample evidence to prove it. So this decision does not help the respondents.
137. In Jadu Gopal (12 supra) cited by respondents, a consent decree was passed in a suit, but in a later suit it was contended that the said decree was vitiated by fraud and collusion. The Court held the said decree was passed on interpretation of a deed of trust and that if the said deed was capable of two constructions- one of which would support the decree and the other contrary thereto, the decree cannot be set aside since it was not beyond the orbit of possibility. Thus it indicated that if two views are possible on the construction of a decree, then a view which is in favour of upholding it, should be taken. In the present case, however, only one view is possible on a consideration of the totality of the facts, viz., that the preliminary and final decrees in O.S.161 of 1979 are vitiated by collusion and fraud.
138. This point is answered accordingly in favour of the appellants and against the respondents.
Point (e) :
139. In view of the fact that both preliminary decree and final decree in O.S.No.161 of 1979 are vitiated by fraud and collusion, the doctrine of lis pendens contained in Section 52 of the Transfer of Property Act, 1882 would not apply. As held in Ramannagouda ( 1 supra) , the doctrine of lis pendens is a doctrine of equity and fraud and collusion, are the antithesis of equity. So decrees obtained by fraud or collusion cannot defeat the rights of the alienees of immovable property pending suit. Therefore the appellants would not be bound by the decree in O.S.No.161 of 1979. Also the principle of res judicata is not attracted.
140. This point is therefore answered in favour of the appellants and against the respondents.
Point (f):
141. Section 44 of the Evidence Act, 1872, any party to a suit or proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.
142. In Gram Panchayat of Village Naulakha (6 supra), the Supreme Court has held that under Section 44, a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a Court without jurisdiction or was obtained by fraud or collusion and it is not necessary to bring an independent suit for setting it aside. It held that in order to contend in a later suit or proceeding that an earlier judgment was obtained by collusion, as a condition precedent it is not necessary to file an independent suit for a declaration as to its collusive nature or seek setting aside of such collusive decree.
143. In view of this settled legal position, I reject the contention of the respondents that the appellants should have sought a declaration that the judgment in O.S.No.161 of 1979 is obtained by fraud or collusion or that they should have filed a separate suit for such a relief.
Point (g) :
144. The counsel for the respondents contended that since AS.Nos.1713, 1715 and 1716 of 1998 (arising out of OS.No.16, 17, and 18 of 1996) had been withdrawn by the respective appellants therein and since a common judgment had been delivered by the trial court in the above suits and in OS.No.6 of 1996 (out of which this appeal arises), no relief can be granted to the appellants in this appeal/plaintiffs in OS.No.6 of 1996 also and that the principle of res judicata would apply. He relied upon the decisions of the Supreme Court in Brij Narain Singh (17 supra), Premier Tyres (14 supra), Harbans Singh (15 supra) and Sheodan Singh v. Daryao Kunwar .
145. In Sheodan Singh (25 supra), the Supreme Court held that where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Courts decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the Trial Court given on merits, and if that is so, the decision of the appeal Court will be res judicata in the other appeal.
146. In Harbans Singh (15 supra), a suit and a counter suit were decided together. One suit was for relief of permanent injunction by respondent against the appellant and the other suit was for declaration of title by appellant against respondent in respect of the same property. Both suits went against the appellant. He preferred an appeal only in one of the suits. The Supreme Court held that the decision in the suit in which no appeal was preferred had attained finality and would operate as res judicata against the appeal preferred in the connected suit.
147. In Premier Tyres (14 supra) also, it was reiterated that if two connected suits were tried together and a finding recorded in one suit became final, in the absence of appeal, the appeal preferred against the finding in the other suit would be barred by res judicata.
148. In my opinion, these decisions have no application to the present case. The appellants herein are not appellants in the other appeals. They had an independent cause of action to file OS.No.6 of 1996. In my opinion, the decision in Brij Narain Singh (17 supra) would be attracted. In Brij Narain Singh (17 supra), four suits were decided together. The plaintiffs in all four suits were common but the defendants were not common and the properties which were subject matter of the suits were situated in different villages. The decision in one suit attained finality. The Supreme Court held that the decision in the other suits would not affect or have any bearing on the decision in the suit which had attained finality. So merely because the issue whether the decree in OS.No.6 of 1996 was collusive, was common to all the suits and the said issue was decided in favour of the respondents in those other appeals, the withdrawal of the other appeals would have no bearing on the present appeal. In Premier Tyres (14 supra), Harbans Singh (15 supra) and Sheodan Singh (25 supra), the parties to the different suits were common which is not the situation here. Therefore, the said decisions would have no application.
149. Therefore, this point is answered in favour of the appellants and against the respondents.
Point (h) :
150. Ex.A.1 sale deed dt.13.10.1981 was executed by Valiamma, Govinda Reddy (R.2/D.2) and legal heirs of Varamuni Reddy (respondent Nos.3 to 5/defendant no.s 3 to 5) and it contains a recital about delivery of possession to the appellants/plaintiffs. Respondent no.s 2 to 13/Defendant nos.2 to 13 had not filed any written statement in OS.No.6 of 1996 denying the execution of Ex.A.1 sale deed in favour of the appellants. Even though the said sale deed was executed after OS.No.161 of 1979 was filed, since the preliminary as well as final decree therein are vitiated by collusion and fraud, the doctrine of lis pendens would not apply to it and invalidate it. Therefore, title of the appellants to the plaint schedule property is upheld holding that the judgment and decree in OS.No.161 of 1979 is a nullity. Therefore, the appellants are entitled to a decree of declaration of their title to the plaint schedule property in OS.No.6 of 1996.
151. Coming to the relief of perpetual injunction sought by them, they have pleaded that they were in possession of the plaint schedule property on the date of the filing of the suit, i.e., 16.10.1989. Although the 1st defendant denied this in her written statement, she admitted in para.11 of the written statement and in her evidence that the structure in Ac.0.15 cts of land allotted to her in the final decree, passed pursuant to Ex.A.21 report of the Advocate Commissioner appointed by the trial court, was constructed by the plaintiffs. The 1st defendant also admitted in her evidence that the plaintiffs had obstructed the Court Amin got appointed by her in EP.No.79 of 1989 filed by her in OS.No.161 of 1979. So it has to be taken that even according to the 1st defendant, the plaintiffs were in possession of the plaint schedule property.
152. So the other Ac.0.40 cents out of the total extent of Acs.0.55 cents of land purchased by the plaintiffs under Ex.A.1 would fall to the share of Valiamma, Govinda Reddy (2nd defendant) and Varamuni Reddys branch (defendant Nos.3 to 5). Ex.A.49, the Amins report in EP.No.35 of 2000 filed by respondent Nos.4 and 5 herein/defendant Nos.4 and 5 also indicates that there was obstruction by third parties to the delivery of possession. These third parties are none other than the plaintiffs.
153. The Advocate Commissioners report Ex.A.31 shows that the plaintiffs were in possession of the premises bearing No.20-3-88/F constructed by them as on 30.03.1999, i.e., ten years after the filing of the suit OS.No.333 of 1989 on 16.10.1989 (which was renumbered as OS.No.6 of 1996).
154. As stated supra, when there was obstruction to the execution of the warrant by the Court Amins in EP.No.79 of 1989 and EP.No.35 of 2000, the trial court granted police aid (in IA.No.102 of 2000 in EP.No.35 of 2000 in OS.No.161 of 1979) on 06.03.2000, instead of directing the defendants/petitioners in the EPs to file applications under Order XXI Rule 97 CPC, which was the proper remedy in the circumstances.
155. Although the Court Amin filed Ex.A.52 report dt.13.03.2000 in EP.No.102 of 2000 that he delivered possession to Defendant Nos.4 and 5, the District Judge in his report Dis.No.604 dt.10.04.2000 sent to this Court in response to the order dt.10.4.2000, specifically stated that he did not record delivery of possession.
156. I had already discussed that the Defendants had not impleaded the plaintiffs in the EPs deliberately even though they were fully aware that the plaintiffs were in possession of the land purchased by them under Ex.A.1 and they had also suppressed the said fact from the Executing Court. In my opinion, clearly the conduct of the defendants in the execution proceedings is collusive and they had played fraud on the court. They cannot be allowed to enjoy the fruits of the fraud/collusion and allowed to retain possession of the land purchased by the plaintiffs under Ex.A.1. In Ram Preeti Yadav ( 23 supra), the Supreme Court held:
14. In Lazarus Estates Ltd. v. Beasley2 the Court of Appeal stated the law thus: (All ER p. 345 C-D) I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud.
157. It is therefore the duty of the court to mould relief and direct delivery of possession to the appellants/plaintiffs forthwith, in case they are found to be not in possession of the property purchased by them under Ex.A.1. This relief is granted in exercise of the power of this Court under Order 41 Rule 33 CPC and to ensure justice is done to the appellants considering the fact that on the date of filing of the suit they were in possession of the plaint schedule property and only subsequently they are alleged to have been dispossessed by the respondents.
158. The appellants are also entitled to the relief of perpetual injunction restraining the respondents from interfering with their possession and enjoyment of the plaint schedule property.
159. I am also of the view that the appellants are entitled to costs of the suit as well as this appeal from all the respondents.
160. Apart from this, I also hold that the defense of the respondents to the suit/appeal is false and vexatious and so they are o liable to pay compensatory costs under Section 35-A CPC to the appellants of Rs.9000/- of which Rs.3000/- shall be paid by 2nd respondent, Rs.3000/- by respondent nos.3-5 and Rs.3000/- will be paid by 6th respondent.
THE CONCLUSION :
161. To sum up :
(i) Appellants are entitled to a decree of declaration of their title to the plaint schedule property in OS.No.6 of 1996;
(ii) The possession of the plaint schedule property be restored to the appellants by the respondents forthwith; and
(iii) Appellants are also entitled to the relief of perpetual injunction restraining the respondents from interfering with their possession and enjoyment of the plaint schedule property;
(iv) the appellants are entitled to costs throughout; and
(v) the respondents are also liable to pay compensatory costs under Section 35-A CPC to the appellants of Rs.9000/- (of which Rs.3000/- shall be paid by 2nd respondent, Rs.3000/- by respondent nos.3-5 and Rs.3000/- by 6th respondent).
162. Thus ASMP.No.1898 of 2012 and also the appeal AS.No.371 of 1999 are allowed with costs and compensatory costs as above.
163. As a sequel, all the other miscellaneous petitions, if any pending, shall stand closed.
___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date : 22-04-2014 Vsv/kvr/ndr/* LR copy to be marked : YES B/o.
Kvr/Vsv/Ndr/* Appendix of evidence S.No. Ex.No. DESCRIPTION
1. Ex.A.31 Report dt.30.03.1999 of the Advocate Commissioner appointed by this Court.
2. Ex.A.32 Sale deed document No.4742 of 1990 dt.27.02.1990.
3. Ex.A.33 Certified copy of written statement in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.17.03.1981.
4. Ex.A.34 Certified copy of issues in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati.
5. Ex.A.35 Certified copy of deposition of PW-1 (M. Pedda Munemma) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.09.01.1984.
6. Ex.A.36 Certified copy of DW-1 (V. Valliamma) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.24.11.1984.
7. Ex.A.37 Certified copy of DW-3 (V. Govinda Reddy) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.04.12.1984.
8. Ex.A.38 Certified copy of DW-4 (V. Munilakshmamma) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati, dt.06.02.1985.
9. Ex.A.39 Certified copy of DW-6 (R. Venkateswara Reddy) in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati.
10. Ex.A.40 Certified copy of orders in IA.No.830 of 1988 in OS.No.161 of 1979 on the file of Principal Senior Civil Judge Court, Tirupati dt.23.03.1989.
11. Ex.A.41 Certified copy of plaint in OS.No.351 of 1997 on the file of Principal Senior Civil Judge Court, Tirupati.
12. Ex.A.42 Certified copy of issues in OS.No.351 of 1997 on the file of Principal Senior Civil Judge Court, Tirupati.
13. Ex.A.43 Certified copy of judgment in OS.No.351 of 1997 on the file of Principal Senior Civil Judge Court, Tirupati dt.27.02.2001.
14. Ex.A.44 Certified copy of suit register extract in OS.No.351 of 1997 on the file of Principal Senior Civil Judge Court, Tirupati.
15. Ex.A.45 Certified copy of Execution Petition in EP.No.35 of 2000 in OS.No.161 of 1979, dt.31.12.1999 with affidavit filed in support of it.
16. Ex.A.46 Certified copy of Rule 22 Notice in EP.No.35 of 2000 in OS.No.161 of 1979.
17. Ex.A.47 Certified copy of petition, affidavit and orders thereon in EA.No.97 of 2000 in EP.No.35 of 2000 in OS.No.161 of 1979, dt.02.03.2000 to advance to hearing of E.P.
18. Ex.A.48 Certified copy of Memo in EP.No.35 of 2000 in OS.No.161 of 1979 dt.02.03.2000.
19. Ex.A.49 Certified copy of warrant dt.03.03.2000, Amins M. Venkataswamy report in EP.No.35 of 2000 in OS.No.161 of 1979, dt.06.03.2000 along with statement of respondents 4 and 5 herein.
20. Ex.A.50 Certified copy of petition and affidavit in EA.No.102 of 2000 in EP.No.35 of 2000 in OS.No.161 of 1979, dt.06.03.2000.
21. Ex.A.51 Certified copy of orders in EA.No.102 of 2000 in EP.No.35 of 2000 in OS.No.161 of 1979, dt.06.03.2000.
22. Ex.A.52 Certified copy of warrant dt.06.03.2000 and Amins report in EP.No.35 of 2000 in OS.No.161 of 1979, dt.13.03.2000.
23. Ex.A.53 Certified copy of petition in EA.No.189 of 2008 in EP.No.35 of 2000 in OS.No.161 of 1979.
24. Ex.A.54 Certified copy of Agreement of Sale in favour of N. Gurunatham executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4863/2000, dated 26.09.2000.
25. Ex.A.55 Certified copy of Agreement of sale in favour of Y. Sudhakar executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4866 of 2000, dated 26.09.2000.
26. Ex.A.56 Certified copy of Agreement of Sale in favour of N. Srinivasulu executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4871 of 2000, dated 26.09.2000.
27. Ex.A.57 Certified copy of Agreement of Sale in favour of N. Guruvulu executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4870 of 2000, dated 26.09.2000.
28. Ex.A.58 Agreement of sale in favour of N.S. Kanthama vide Doc.No.4885/2000 along with translated copy, dated 26.09.2000.
29. Ex.A.59 Certified copy of Agreement of Sale in favour of N.S. Kanthama executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4903/2000, dated 26.09.2000.
30. Ex.A.60 Certified copy of Agreement of Sale in favour of P. Siva Kumar executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4903 of 2000, dated 26.09.2000.
31. Ex.A.61 Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4478/2006, dt.28.07.2006.
32. Ex.A.62 Certified copy of registered cancellation deed executed by V. Prasad and Sekhar Reddy vide doc.No.4475/2006, dt.28.07.2006.
33. Ex.A.63 Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4477/2006, dt.28.07.2006.
34. Ex.A.64 Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4479/2006, dt.28.07.2006.
35. Ex.A.65 Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4474/2006, dt.28.07.2006.
36. Ex.A.66 Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4473/2006, dt.28.07.2006.
37. Ex.A.67 Certified copy of Agreement of Sale cum General Power of Attorney in favour of B. Gurunatha Reddy and another executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.4480/2006, dated 28.07.2006.
38. Ex.A.68 Certified copy of registered cancellation deed executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.5608/2006, dt.28.07.2006.
39. Ex.A.69 Certified copy of Agreement of Sale cum General Power of Attorney in favour of B. Gurunatha Reddy and N. Venkataramana executed by V. Prasad Reddy and Sekhar Reddy vide doc.No.1001/2007, dt.14.02.2007.
40. Ex.A.70 Certified copy of Sale deed executed by V. Prasad Reddy and Sekhar Reddy, represented by their Power of Attorney Agents Pragathi farms, Ananthapur in favour of R. Maheswara Naidu and Sri Pragathi Farms, Ananthapur vide doc.No.3332/2008, dated 21.04.2008.
41. Ex.A.71 Certified copy of orders in IA.No.1041/2002 in IA.No.830/88 in OS.No.161/79, dt.09.01.2003. ___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date : 22-04-2014