Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 5416 OF 2012
IN
SECOND APPEAL NO. 356 OF 2001
WITH
CIVIL APPLICATION NO. 5417 OF 2012
Gaurishankar s/o.Rukhmeshchandra Mishra,
Age – 38 years, Occu. Medical Practitioner,
R/o. Flat No.7, Chinar Arcade,
Jaisingpura, Padhegaon, Nashik Road,
Aurangabad. .. APPLICANT
VERSUS
1. Asaram s/o. Shankar Jagdale,
Age – 65 Years, Occu. Agril.
R/o. Vitkheda, Paithan Road,
Tq. & District Aurangabad.
2. Shankar s/o. Dhondiba Jagdale,
Deceased through L.Rs.
2A. Malanbai w/o. Jagannath Mote,
Age: Major, Ocu. Household,
R/o. Nagina Nagar, Vitkheda,
Tq. & District – Aurangabad
2B. Rahibai w/o. Kacharu Kadaskar,
Age : Major, Occu. Agril.
R/o. Gunjalwadi, Near Daulatabad,
Tq. & District – Aurangabad
2C. Subabai w/o. Jaiwantrao Thorat,
Age : Major, Occu. Household,
R/o. Ambegaon, Tq. Gangapur,
District – Aurangabad.
2D. Logabai w/o. Mohan Teke,
Age: Major, Occu. Household,
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R/o. Shivpur, Tq. Gangapur,
District – Aurangabad.
2E. Rukhminibai w/o. Rambhau Pawar,
Age: Major, Occu. Household,
R/o. Solegaon, Tq.Gangapur,
District – Aurangabad.
2F. Laxmibai w/o. Radhabapu Mule,
Age : Major, Occu. Household,
R/o. Erandi Jagalgaon
@ Chauryahattar Jalgaon,
Tq. Paithan, Dist. Aurangabad.
3. Babasaheb s/o. Shankarrao Jagdale,
Age : 45 years, Occu. Agril.
R/o. Vitkheda, Paithan Road,
Tq. & District – Aurangabad.
4. Navin s/o. Shantilal Jain,
Age : 28 years, Occu. Business,
R/o. Vedant Nagar, Aurangabad.
5. Manoj s/o. Zumbarlal Pagariya,
Age : 38 Years, Occu. Business,
R/o. Vedant Nagar, Aurangabad.
6. Madanlal s/o. Kanhaiyalal Pagariya,
Age : 50 Years, Occu. Business,
R/o. Vedant Nagar, Aurangabad.
7. Lalit s/o. Prakash Vaidya,
Age : 33 Years, Occu. Pleader & Agri.,
R/o. Vedant Nagar, Aurangabad.
8. Dinanath s/o. Eknath Morwal,
Age : 62 years, Occu. Business,
R/o. Bansilal Nagar, Gandhi Nagar,
Aurangabad.
9. Vivek s/o. Vyankatram Peddi,
Age : 37 years, Occu. Business,
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R/o. Plot No.11, Vidya Niwas,
New Osmanpura, Aurangabad.
10. Sau. Shirisha w/o. Vivek Peddi,
Age : 28 Years, Occu. Household,
R/o. Plot No.11, Vidya Niwas,
New Osmanpura, Aurangabad. RESPONDENTS
...
Mr.V.J.Dixit, Senior Counsel, instructed by
Mr.A.N.Nagargoje, Advocate for the Applicant
Mr. C.V.Korhalkar, Advocate for Respondent
No.1
Mr.S.R.Choukidar, Advocate for Respondent
Nos.2A to 2F and 3.
Mr.P.M.Shah, Senior Counsel, instructed by
Mr.S.V.Savant, Advocate for respondent Nos.4
and 8
Mr.R.V.Gore, Advocate for Respondent Nos.9
and 10.
...
CORAM: S.S.SHINDE, J.
Reserved on : 20.08.2016
Pronounced on : 30.08.2016
JUDGMENT: (Per S.S.Shinde, J.):
1] This Civil Application is filed for
recalling the order dated 23.12.2011 passed
in Second Appeal No.356/2001, thereby
disposing of the Second Appeal in terms of
compromise arrived between the parties to the
Second Appeal.
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2] The learned Senior Counsel appearing
for the applicant submits that the applicant
was not aware about the filing of Second
Appeal by respondent nos.2 and 3, and
respondent no.1 also did not inform the
applicant about the pendency of Second
Appeal. Respondent nos. 2 and 3 therein filed
Regular Civil Appeal No.183/1995 before the
District Court, Aurangabad. Being aggrieved
by the judgment and order dated 29.06.1995
passed in Regular Civil Suit No.475/1994, the
said Appeal was allowed and the judgment and
decree dated 29.06.1995 passed in Regular
Civil Suit No.475/1994 was set aside. Being
aggrieved by the said judgment and order by
the First Appellate Court, the appellant
preferred Second Appeal. The Appeal was
admitted.
3] It is submitted that though
respondent nos.2 and 3 in Appeal were
restrained from alienating the suit property,
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still respondent no.3 herein executed a sale
th
deed dated 18 August, 2006 in faovur of
respondent nos.9 and 10 and sold 20 R. land
from Gat No.88 for consideration of Rs.5
lacs. It is submitted that since respondent
nos.9 and 10 were well aware about the
pendency of the Second Appeal and the stay
order dated 20.12.2001, still respondent nos.
8 and 9 in collusion with respondent no.3 got
executed the sale deed in respect of suit
land bearing Gat No.88. Therefore, respondent
no.1 filed Contempt Petition No.34/2007 and
prayed for taking necessary action against
the concerned respondents including
respondent nos.3, 9 and 10. The said Contempt
Petition came up for hearing before the High
Court, and the Court observed that the sale
deed executed by respondent no.3 in favour of
respondent nos.9 and 10 is contrary to and in
violation of the order dated 20.12.2001
passed in Civil Application No.5439/2001 in
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Second Appeal No.356/2001. Accordingly, by
order dated 02.07.2007, the High Court
appointed the Court Receiver in respect of
the entire suit property, including the
portion sold to respondent nos. 9 and 10. The
Contempt Court has also restrained respondent
nos.3, 9 and 10 from alienating the suit
properties including Gat No.88. The learned
Senior Counsel invited my attention to the
order dated 02.07.2007 passed in Contempt
Petition No.34/2007.
4] It is submitted that in spite of
stay order dated 20.12.2001 passed in Civil
Application No.5439/2001 in Second Appeal No.
356/2001 and in Contempt Petition No.34/2007,
the public proclamation for selling the suit
property bearing Gat No.88 was published in
daily news paper dated 25.06.2009. It was
stated in the said proclamation that there is
agreement to sell in respect of the said suit
land and if anybody has objection, he should
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submit the said objections to the concerned
Advocate. Since there was again violation of
the interim orders passed by the High Court,
therefore, respondent no.1 again filed
Contempt Petition No.251/2009 in Contempt
Petition No.34/2007. On 28.08.2009, the High
Court issued notices in Contempt Petition No.
251/2009. It is submitted that though the
various proceedings were pending before the
Court, still respondent no.1 did not inform
the applicant anything about the said
proceeding. The applicant was not joined as a
party respondent to the said proceedings.
The applicant was not aware about the said
proceedings. Respondent no.1 as well as
respondent Nos.2A to 2F and 3 were very much
aware about the execution of sale deeds dated
26.02.1998 and 29.09.1998 in favour of the
present applicant. Still the said respondents
tried to compromise the matter by overlooking
the right of the present applicant. The
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applicant came to know about the said fact in
the month of November 2011, and thereafter,
immediately i.e. on 07.12.2011, the applicant
filed Civil Application No.15083/2011 for
intervention in Second Appeal No.356/2001.
However, the said Civil Application was not
considered by the High Court.
5] It is submitted that in spite of
knowledge to the respondent nos.1, 2A to 2F
and 3 about the sale deeds executed in favour
of applicant on 26.02.1998 and 29.09.1998,
they proceeded to compromise the matter by
filing compromise pursis. Neither the present
applicant, nor the purchasers i.e. respondent
nos.9 and 10 were made as party to the said
compromise pursis. It is submitted that Civil
Application No.13220/2011 came up for hearing
on 04.11.2011 before this Court and
accordingly the order was passed accepting
the compromise. The record shows that the
said Civil Application was filed on
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03.11.2011. On 04.11.2011, the compromise was
recorded by the learned Registrar (Judicial).
On perusal of the record, it would reveal
that the compromise was recorded in Civil
Application No.13219/2011 filed in Contempt
Petition No.34/2007. The learned Registrar
(Judicial) observed in his order dated
04.11.2011 that respondent nos.9 and 10 (i.e.
respondent nos.8 and 9 of Contempt Petition
No.34/2007) were not parties to the
compromise pursis. The Registrar further
observed that respondent nos.2A to 2F (i.e.
respondent nos.1 to 6 of Contempt Petition
No.34/2007) were discharged from the Contempt
proceedings. Therefore, it is crystal clear
that the Registrar (Judicial) has recorded
the compromise in Contempt Petition
No.37/2007. The record shows that the
compromise filed vide Civil Application No.
13220/2011 in Second Appeal No.356/2001 was
not recorded.
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6] It is submitted that while disposing
of the Second Appeal in terms of compromise
pursis, this Court has specifically observed
that the compromise entered into between the
parties is at their own risk and
responsibility. It is submitted that the
compromise pursis filed vide Civil
Application No.13220/2011 in Second Appeal
No.356/2001 was not at all verified by the
learned Registrar (Judicial). The record
shows that the compromise filed vide Civil
Application No.13219/2011 in Contempt
Petition No.34/2007 was verified by the
Registrar (Judicial) On 04.11.2011. It is
submitted that as soon as the Second Appeal
came to be disposed of by order dated
23.12.2011, respondent no.3 has executed the
registered sale deed dated 26.12.2011 in
favour of respondent nos.4 to 8 and sold 66
R. land from Gat No.88 for Rs.2,06,85,000/.
Respondent nos.1 and 2A to 2F are
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consenting parties to the said sale deed.
That apart, some other persons are also
consenting party to the said sale deed. On
perusal of the recitals of the sale deed
dated 26.12.2011, it would reveal that the
sale deed was drafted in the month of
November, 2011, itself. That apart, the
record shows that before that the parties
have entered into agreement for selling the
suit property and the amount was also paid by
cheques. The recitals of the sale deeds shows
that the amount of consideration was paid in
the month of October and November 2011 by
issuing cheques. Thus, though there was stay,
still respondent Nos.1, 2A to 2F, 3 and 4 to
8 have entered into an agreement and
completed all the formalities for execution
of the sale deed. The said fact itself shows
that the respondent nos.1, 2A to 2F, 3 and
respondent nos.4 to 8 have played the fraud
and got executed the sale deed. It is
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submitted that the evidence on record clearly
shows that the respondents have obtained the
decree by playing fraud and thereafter got
executed the sale deed by overlooking the
right of the present applicant. Therefore,
the said sale deeds deserves to be declared
as null and void.
7] It is further submitted that
respondent no.1 executed the registered sale
deeds dated 26.02.1998 and 29.09.1998 in
pursuance of the agreement to sell dated
16.12.1995 and sold 94 R. land from Gat No.88
to the present applicant. Respondent nos.2
A, 2C and 2F, being Legal representatives
of deceased respondent no.2 have also given
consent to the said sale deeds. Respondent
nos.1, 2A to 2F and 3 to 10 were very well
aware about the right of the applicant.
Still respondent no.3 executed the sale deed
dated 18.08.2006 in favour of respondent nos.
9 and 10 and sold 20 R. land from Gat No.88
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though there was injunction order passed by
this Court. Thereafter, respondent nos.1, 2
A to 2F and 3 again sold 66 R. land to
respondent nos.4 to 8 by executing sale deed
dated 26.12.2011. The record shows that
before compromising the matter and in spite
of injunction order, the said respondents
entered into the transaction regarding
selling of the land. By suppressing all
these facts, the respondents herein have got
compromise the matter. The record shows that
by playing fraud the respondents have
obtained the decree of compromise. Therefore,
the order dated 23.12.2011 deserves to be
recalled.
8] It is submitted that the applicant
is having substantive right in the suit
property bearing agricultural land Gat No.88.
The Civil Application filed by the applicant
bearing Civil Application No.15083/2011 came
to be disposed of without any speaking order.
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When the matter was heard on 23.12.2011, the
advocate of the applicant as well as the
applicant was not present, and therefore,
Civil Application No.15083/2011 filed by the
applicant was not brought to the notice of
this Court. It is submitted that by way of
filing compromise pursis, the other parties
have accepted the share of the respondent no.
1 in the property. Respondent no.1 had sold
the suit property to the applicant by
executing two sale deeds dated 26.02.1998 and
29.09.1998. However, the said aspect has not
been considered at all while disposing of the
Second Appeal. It is submitted that when the
sale deeds were executed in favour of
applicant and the applicant was put in
possession of the property from Gat No.88 by
respondent no.1, the question of accepting
compromise without the applicant is party to
the said proceedings does not arise.
Therefore, the order disposing of the Second
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Appeal deserves to be recalled.
9] It is submitted that since the
applicant is a aggrieved person, the
application for recalling/review is
maintainable. The learned Senior Counsel
invited my attention to the reported judgment
in the case of Shapoorji Data Processing Ltd.
1
Vs. Ameer Trading Corporation Ltd. and
submits that in the said judgment, the High
Court has taken a view that for filing review
application party must be ‘aggrieved party’
and must file petition within time limit.
Though the person is not party to proceedings
but is aggrieved person, can file the review
petition. Learned Senior Counsel also invited
my attention to the judgment of the High
Court in the case of Dinkar Indrabhan
Kadaskar & Ors. Vs. Grampanchayat Bhagwatipur
2
& Ors. and submits that, in that case also
the High Court held that the applicants
1 AIR 2003 Bombay 228
2 2009 (1) Bom.C.R. 39
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therein are aggrieved persons being
interested in affairs of trust, therefore,
review application is maintainable though
they were not parties to proceedings.
Relying upon the judgment of the Supreme
Court in the case of A.Nawab John and others
3
Vs. V.N.Subramaniyam and in particular para
22 thereof, it is submitted that a pendente
lite purchaser’s application for impleadment
should normally be allowed or ‘considered
liberally’. The learned Senior Counsel
further pressed into service exposition of
law in the case of Dhanlakshmi and others Vs.
4
P. Mohan and others and in particular para 5
thereof and submits that in that case also
the Court has taken a view that the
appellants therein were necessary parties to
the suit. He also invited my attention to the
reported judgment in the case of T.G.Ashok
5
Kumar Vs. Govindammal and another . He
3 [2012] 7 SCC 738
4 [2007] 10 SCC 719
5 [2010] 14 SCC 370
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further placed reliance in the case of
A.V.Papayya Sastry and others Vs. Govt. of
6
A.P. and others and submits that fraud
vitiates all judicial acts whether in rem or
in personam hence judgment, decree or order
obtained by fraud has to be treated as non
est and nullity, whether by court of first
instance or by the final court. It can be
challenged in any court, at any time, in
appeal, revision, writ or even in collateral
proceedings. For the said preposition, he
further pressed into service exposition of
law in the case of T.Vijendradas & Anr. Vs.
7
M. Subramanian & Ors. . Therefore, relying
upon the averments in the application,
grounds taken therein, annexures thereto,
relevant documents and the aforesaid
judgments cited during the course of hearing,
the learned Senior Counsel appearing for the
applicant submits that the application
6 [2007] 4 SCC 221
7 2008 [1] All MR 446
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deserves to be allowed.
10] The learned counsel appearing for
respondent no.1 relying upon the averments in
the affidavitinreply and also additional
affidavitinreply made following
submissions:
11] The present controversy is flowing
from Regular Civil Suit No.475/1994 filed by
the original plaintiffappellant Asaram for
effecting the partition and possession of the
property belong to HUF. The controversy about
the right of intervenerapplicant under the
alleged sale deeds to the extent of the
property mentioned therein, therefore, the
dispute sought to be raised by him is outside
the scope of the suit for partition. The
character of a suit for partition cannot be
converted into a suit by a stranger like the
applicant herein, based on title for the
recovery of possession as – (i) The cause of
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action for such a subsequent proceeding would
be different; (ii) The pleadings of the two
proceedings would not go hand in hand; (iii)
The reliefs claimed by the parties would be
altogether different; (iv) The points in
issue, the evidence, both oral as well as
documentary in the two proceedings would be
at variance with each other; (v) All the
issues or matters referred to above involve
disputed questions of fact which cannot be
gone into in a Second Appeal by the High
Court at the behest of a stranger to a
proceeding and (vi) so also the source of
rights claimed by the parties would be
totally different. The learned counsel
appearing for respondent no.1 pressed into
service exposition of law in the case of
8
Kasturi Vs. Iyyamperumal and others and
submits that in the facts of that case the
Supreme Court has taken a view that a party
who is approaching the Court by invoking
8 [2005] 6 SCC 733
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Order 1 Rule 10 for becoming a party to the
proceedings must satisfy two tests firstly ,
there must be a right to some relief against
such party in respect of controversies
involved in the proceedings, or, secondly , no
effective decree can be passed in his
absence. It is submitted that the review
applicant has alleged that the original
plaintiff in Regular Civil Suit No.475/1994 –
the appellant in the Second Appeal and
respondent in the application for review had
executed two sale deeds dated 26.02.1998 and
29.09.1998 in his favour in respect of two
portions, admeasuring 63 and 32 R.
respectively, in the suit property bearing
Gat No.88. The alleged sale deeds under
consideration are executed after the decree
of the trial Court in Regular Civil Suit No.
475/1994 was stayed by the Appellate Court,
Aurangabad. in a substantive appeal i.e.
Regular Civil Appeal No.183/1995 filed by
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Shankar and Babasaheb original defendants.
The learned District Judge, Aurnagabad, was
pleased to pass an order below Exhibit5 i.e.
the Stay Petition in Regular Civil Appeal No.
183/1995 on 20.07.1995, by which the stay was
granted to the execution of the decree in
Regular Civil Suit No.475/1994 until further
order. Therefore, the original plaintiff –
appellant gets no right of disposition to the
suit property and had no authority in the
eyes of law to execute the alleged sale deeds
dated 26.02.1998 and 29.09.1998, thus, the
alleged sale deeds are executed by
incompetent person, who had no right over the
suit property, thus no right divested to the
applicant under the alleged sale deeds,
therefore, the applicant has no right,
interest, title, ownership and possession
over the suit property. Further, the suit
property was then owned and possessed by
Babasaheb i.e. the respondent no.2, who is
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the brother of the original plaintiff,
Asaramappellant. Therefore, the appellant
had no right to execute the alleged sale
deeds in favour of the applicant.
12] It is submitted that Regular Civil
Appeal No.183/1995, which was filed by the
original defendant nos.1 and 2 i.e.
respondent no.2 in this application, was
allowed by the Appellate Court on 20.06.2001
and the suit was dismissed. It is submitted
that the entire litigation is about the
partition in the joint family which consisted
the plaintiff and the defendants in the suit
and the suit property had fallen in the share
of the original defendant no.2. The applicant
was never put in possession of the subject
matter of the alleged two sale deeds,
therefore, the recitals are contrary to the
fact and record. It is the contention of the
applicant that there was rise in the share of
Asaram by virtue of the alleged
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relinquishment of their share by the sisters
of Asaram is imaginary and amounts to
superseding and modifying the decree passed
by the District Court, Aurangabad, that too,
without suffering any adjudication in that
behalf. The learned counsel appearing for
respondent no.1 invited my attention to the
averments in the affidavitinreply and
submits that it is stated that respondent no.
1–Asaram had been addicted to liquor. He was,
therefore, always in dire need of money
almost every day. The applicant has taken
undue advantage of the vices of the appellant
and has obtained his signatures on the blank
papers and converted the same into the
alleged sale deeds in his own favour. It is
submitted that both these documents are
forged and bogus. The alleged agreement of
sale deed dated 16.12.1995 regarding an area
of 62 R. out of Gat No.88, the alleged sale
deed dated 26.02.1998 in that behalf and the
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alleged sale deed dated 29.09.1998 in respect
of an area of 32 R. are void for want of
certainty and identity of the subject matter
of transactions because admittedly the decree
for partition and separate possession passed
by the trial Court was stayed by the District
Court and the said decree was a preliminary
decree and the final decree was not then
drawn. Assuming for the sake of argument that
the appellant was entitled to sell an area of
62 R. out of Gat No.88 to the extent of his
rd
alleged 1/3 share therein, as it then stood,
he was prohibited from exercising his right
to do so by virtue of the stay order of the
District Court in Regular Civil Appeal No.
183/1995, operating against the decree of the
trial Court. Further, the alleged second
saledeed is equally illegal for one more
reason that the same was executed by the
appellant over and above his alleged and
rd
presumed entitlement to the extent of 1/3
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share in the suit property. The socalled
sale deeds dated 26.02.1998 and 29.09.1998
which are being relied on by the intervener
have seen light of the day for the first time
in the year 2012. The said documents were not
acted upon for over a period of 13 years. In
the natural course of things, a bona fide
purchaser for a valuable consideration would
have and ought to have exhibited and asserted
his title by some manifestation, one way or
the other, however, the applicant has not
acted bona fide , which proves beyond doubt
that the alleged sale deeds are false and
never meant to be executed.
13] The very fact that the appellant –
original plaintiff had filed the original
suit for partition and separate possession of
his alleged share in the suit property, shows
that he was never in possession of the suit
property. As a sequel to it, he could not
deliver possession of the same to the
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applicant. It, therefore, negatives not only
the veracity of the recitals regarding
delivery of possession of the properties
under the sale deeds to the applicant, but
also of the legality and validity of alleged
sale deeds. It further proves appellant’s
version that the two alleged transactions
were not genuine. It can be said with a very
high degree of certainty that whenever any
saledeed is without delivery of possession
of the property it becomes unconscionable and
gives rise to a presumption against its
veracity and genuineness. The applicant was
not an agriculturist on the date of the
alleged transactions and the same are void on
that count also. The applicant has never made
attempt to file application for impleading
him party in Regular Civil Appeal No.
183/1995. In fact, the recital of the alleged
sale deed clearly makes mentioned about
Regular Civil Suit No.475/1994, and
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therefore, the contention of the applicant
cannot be accepted that he was not aware
about pendency of Regular Civil Appeal. It is
submitted that the claim of the applicant is
barred by limitation. The Civil Application,
which was filed by the applicant in the year
2011 in the Second Appeal, was never
prosecuted and the applicant was never made
party in the Second Appeal. It is submitted
that the validity of the compromise cannot be
challenged by the applicant, who was not
party either to the suit/Regular Civil Appeal
or in the Second Appeal. No stranger can be
allowed to foist a compulsion on the estwhile
parties to any proceeding, who have arrived
at an amicable settlement, to once again
litigate amongst themselves at the behest of
a nonparty to the proceeding. It is
submitted that all parties to the Second
Appeal entered into compromise, and
therefore, it cannot be said that the parties
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28
to the Second Appeal have played fraud on the
Court. The compromise was verified and also
the Court ascertained that the said
compromise is without any coercion or with
free will. None of the parties to the
compromise has ever raised any doubt about
the genuineness of the compromise. The
applicant has no locus standi to raise any
question mark on the veracity of the
compromise, its endorsement and the location
of the endorsement. In support of the
aforesaid contention, the learned counsel
appearing for the respondent no.1 pressed
into service exposition of law in the cases
of Khalil Haji Bholumiya Salar & Anr. Vs.
9
Parveen w/o. Sayyeduddin Razak & Ors. ,
Ramkrishna Shridhar & Ors. Vs. The Court
10
Receiver & Ors. , Shyam Lal and another Vs.
11
Sohan Lal and others , Amarnath and others
9 2012 (12) LJSOFT 417
10 2011 (1) All MR 623
11 AIR 1928 Allahabad 3
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Vs. Deputy Director of Consolidation, Kanpur
12
and another , Siddalingeshwar and others Vs.
13
Virupaxgouda and others , Horil Vs. Keshav
14
and Another and Hussainbhai Allarakhbhai
Dariaya and others Vs. State of Gujarat and
15
others . It is submitted that the applicant
is raising disputed questions of facts
inasmuch as he wishes to prove the sale deed
executed in his favour in Review Application
filed in the Second Appeal. Such controversy,
which is beyond scope and purview of the
Second Appeal, cannot be gone into by this
Court.
14] The learned counsel appearing for
the other non applicants/respondents in the
Second Appeal submits that they adopt the
argument of the learned counsel appearing for
respondent no.1. The learned Senior Counsel
appearing for respondent nos.4 and 8 also
12 AIR 1985 Allahabad 163
13 AIR 2003 Karnataka 407
14 (2012) 5 SCC 525
15 (2010) 8 SCC 759
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invited my attention to the various documents
and also to the various judgments and submits
that the review application is not
maintainable since the same raises disputed
questions of fact, and such consideration
would fall outside the purview of the
controversy involved in the Second Appeal.
15] I have given careful consideration
to the submissions of the learned Senior
Counsel appearing for the applicant, the
learned counsel appearing for the respondent
nos.1 and 2 and the learned Senior Counsel
appearing for the respondent Nos.4 and 8.
With their able assistance, perused the
averments in the application, annexures
thereto and the entire original record
pertains to the Second Appeal No.356/2001.
Upon careful perusal of the averments in the
application for review, it is abundantly
clear that the applicant was not party to the
suit/Regular Civil Appeal or in Second
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Appeal. The contention of the learned senior
counsel appearing for the applicant that the
applicant filed Civil Application for
intervention / for impleading him as party in
the Second Appeal came to be disposed of
without any adjudication, and therefore, the
present application for review, deserves to
be entertained, has no force. Merely because
the applicant filed application for
impleading him party in the Second Appeal in
the year 2011, and same was kept pending
without prosecuting the same, would not
entitle the applicant to file review
application when he was not impleaded as
party respondent in Second Appeal. Upon
perusal of record it appears that, the
Advocate, who filed such application on
behalf of the applicant, was not present on
the date of disposal of the Second Appeal, or
even on earlier dates whenever Second Appeal
was listed before the Court for hearing. The
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said Civil Application came to be disposed of
in view of disposal of Second Appeal without
passing any specific orders and as a result
the applicant was not made party to the
Second Appeal till disposal of the appeal.
There is two fold contention of the
applicant; firstly, the review application
can be entertained at his instance since he
is a ‘aggrieved person’ and secondly, two
sale deeds dated 26.02.1998 and 29.09.1998
executed in his favour by the appellant
Asaram, are genuine transactions, and
therefore, he has right over the suit
property in Gat No.88 to the extent of the
share of appellant – Asaram sold in his
favour. In the first place, as already
observed, the review applicant was not party
to the suit / Regular Civil Appeal or Second
Appeal, and therefore, he is a stranger to
the said proceedings, which ultimately
culminated into the disposal of the Second
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Appeal in terms of settlement arrived between
the parties to the Second Appeal. Secondly,
even to hold that the review applicant is a
aggrieved person, the Court of competent
jurisdiction was not approached by the
applicant to adjudicate his contention that,
two sale deeds dated 26.02.1998 and
29.09.1998 executed by the appellant Asaram
in favour of applicant is a result of lawful
and valid transaction and by virtue of it, he
became owner and came in possession of the
said property . The appellant in Second
Appeal Shri Asaram not only has disputed said
sale transactions, but even by way of filing
additional affidavit, the stand is taken by
him that, he has never executed the alleged
sale deeds in favour of the applicant. It is
further stated in the additional affidavit
that, even if assuming that Asaram has
executed such alleged sale deeds, he was not
competent to execute the said sale deeds in
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view of the stay granted by the Appellate
Court to the decree passed by the trial
Court, and also decree passed by the trial
Court was never sent to the Collector for
effecting partition by metes and bounds. It
is not necessary for this Court to go into
the greater details, suffice it to say that
the review application at the instance of the
applicant cannot be entertained. The issue
raised by the applicant that two sale deeds
dated 26.02.1998 and 29.09.1998 is genuine
transaction and by virtue of it, he became
owner and is in lawful possession of suit
property, would fall beyond the purview of
controversy which was raised in the Second
Appeal. Such adjudication at the instance of
the applicant would lead to the adjudication
of the disputed questions of fact and also
would be beyond the controversy, which was
involved in the Second Appeal arising out of
the proceedings in Regular Civil Suit No.
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475/1994 filed by Asaram.
16] In that view of the matter, this
Court is of the opinion that the review
application deserves no consideration. This
Court is bound by the ratio laid down in two
judgments delivered at Principal Seat, cited
across the bar by the learned counsel
appearing for the respondents in the case of
Khalil Haji Bholumiya Salar (cited supra) and
also in the case of Ramkrishna Shridhar & Ors
(cited supra) wherein the view is taken that
stranger to the suit is a stranger to the
agreement of compromise and he cannot file an
application either in the suit or in the
appeal proceedings to challenge a compromise
decree as he is not a party to the suit, bar
under Rule 3A of Order 23 of CPC cannot be
extended to him, said provision must confine
only to the parties to the suit who are
parties to the compromise agreement, stranger
to a compromise decree cannot file an
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application in a suit or an appeal to
challenge a compromise as not being lawful,
but must file a separate suit for the
purpose.
17] In that view of the matter, this
Court is of the considered view that the
review application deserves no consideration,
the same is devoid of any merits and stands
rejected. Civil Application No.5417/2012 for
adding as party respondents also stands
disposed of.
Sd/
[S.S.SHINDE]
JUDGE
At this stage, the learned counsel
appearing for the review applicant prays for
continuation of interim order, which was in
force during pendency of the Review
Application. The prayer is vehemently opposed
by the learned counsel appearing for the non
applicants/Respondents.
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However, in the interest of justice,
the interim order, which was in force during
pendency of this application, shall remain in
force for further six weeks.
Sd/
[S.S.SHINDE]
JUDGE
DDC
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO. 5416 OF 2012
IN
SECOND APPEAL NO. 356 OF 2001
WITH
CIVIL APPLICATION NO. 5417 OF 2012
Gaurishankar s/o.Rukhmeshchandra Mishra,
Age – 38 years, Occu. Medical Practitioner,
R/o. Flat No.7, Chinar Arcade,
Jaisingpura, Padhegaon, Nashik Road,
Aurangabad. .. APPLICANT
VERSUS
1. Asaram s/o. Shankar Jagdale,
Age – 65 Years, Occu. Agril.
R/o. Vitkheda, Paithan Road,
Tq. & District Aurangabad.
2. Shankar s/o. Dhondiba Jagdale,
Deceased through L.Rs.
2A. Malanbai w/o. Jagannath Mote,
Age: Major, Ocu. Household,
R/o. Nagina Nagar, Vitkheda,
Tq. & District – Aurangabad
2B. Rahibai w/o. Kacharu Kadaskar,
Age : Major, Occu. Agril.
R/o. Gunjalwadi, Near Daulatabad,
Tq. & District – Aurangabad
2C. Subabai w/o. Jaiwantrao Thorat,
Age : Major, Occu. Household,
R/o. Ambegaon, Tq. Gangapur,
District – Aurangabad.
2D. Logabai w/o. Mohan Teke,
Age: Major, Occu. Household,
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R/o. Shivpur, Tq. Gangapur,
District – Aurangabad.
2E. Rukhminibai w/o. Rambhau Pawar,
Age: Major, Occu. Household,
R/o. Solegaon, Tq.Gangapur,
District – Aurangabad.
2F. Laxmibai w/o. Radhabapu Mule,
Age : Major, Occu. Household,
R/o. Erandi Jagalgaon
@ Chauryahattar Jalgaon,
Tq. Paithan, Dist. Aurangabad.
3. Babasaheb s/o. Shankarrao Jagdale,
Age : 45 years, Occu. Agril.
R/o. Vitkheda, Paithan Road,
Tq. & District – Aurangabad.
4. Navin s/o. Shantilal Jain,
Age : 28 years, Occu. Business,
R/o. Vedant Nagar, Aurangabad.
5. Manoj s/o. Zumbarlal Pagariya,
Age : 38 Years, Occu. Business,
R/o. Vedant Nagar, Aurangabad.
6. Madanlal s/o. Kanhaiyalal Pagariya,
Age : 50 Years, Occu. Business,
R/o. Vedant Nagar, Aurangabad.
7. Lalit s/o. Prakash Vaidya,
Age : 33 Years, Occu. Pleader & Agri.,
R/o. Vedant Nagar, Aurangabad.
8. Dinanath s/o. Eknath Morwal,
Age : 62 years, Occu. Business,
R/o. Bansilal Nagar, Gandhi Nagar,
Aurangabad.
9. Vivek s/o. Vyankatram Peddi,
Age : 37 years, Occu. Business,
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R/o. Plot No.11, Vidya Niwas,
New Osmanpura, Aurangabad.
10. Sau. Shirisha w/o. Vivek Peddi,
Age : 28 Years, Occu. Household,
R/o. Plot No.11, Vidya Niwas,
New Osmanpura, Aurangabad. RESPONDENTS
...
Mr.V.J.Dixit, Senior Counsel, instructed by
Mr.A.N.Nagargoje, Advocate for the Applicant
Mr. C.V.Korhalkar, Advocate for Respondent
No.1
Mr.S.R.Choukidar, Advocate for Respondent
Nos.2A to 2F and 3.
Mr.P.M.Shah, Senior Counsel, instructed by
Mr.S.V.Savant, Advocate for respondent Nos.4
and 8
Mr.R.V.Gore, Advocate for Respondent Nos.9
and 10.
...
CORAM: S.S.SHINDE, J.
Reserved on : 20.08.2016
Pronounced on : 30.08.2016
JUDGMENT: (Per S.S.Shinde, J.):
1] This Civil Application is filed for
recalling the order dated 23.12.2011 passed
in Second Appeal No.356/2001, thereby
disposing of the Second Appeal in terms of
compromise arrived between the parties to the
Second Appeal.
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2] The learned Senior Counsel appearing
for the applicant submits that the applicant
was not aware about the filing of Second
Appeal by respondent nos.2 and 3, and
respondent no.1 also did not inform the
applicant about the pendency of Second
Appeal. Respondent nos. 2 and 3 therein filed
Regular Civil Appeal No.183/1995 before the
District Court, Aurangabad. Being aggrieved
by the judgment and order dated 29.06.1995
passed in Regular Civil Suit No.475/1994, the
said Appeal was allowed and the judgment and
decree dated 29.06.1995 passed in Regular
Civil Suit No.475/1994 was set aside. Being
aggrieved by the said judgment and order by
the First Appellate Court, the appellant
preferred Second Appeal. The Appeal was
admitted.
3] It is submitted that though
respondent nos.2 and 3 in Appeal were
restrained from alienating the suit property,
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still respondent no.3 herein executed a sale
th
deed dated 18 August, 2006 in faovur of
respondent nos.9 and 10 and sold 20 R. land
from Gat No.88 for consideration of Rs.5
lacs. It is submitted that since respondent
nos.9 and 10 were well aware about the
pendency of the Second Appeal and the stay
order dated 20.12.2001, still respondent nos.
8 and 9 in collusion with respondent no.3 got
executed the sale deed in respect of suit
land bearing Gat No.88. Therefore, respondent
no.1 filed Contempt Petition No.34/2007 and
prayed for taking necessary action against
the concerned respondents including
respondent nos.3, 9 and 10. The said Contempt
Petition came up for hearing before the High
Court, and the Court observed that the sale
deed executed by respondent no.3 in favour of
respondent nos.9 and 10 is contrary to and in
violation of the order dated 20.12.2001
passed in Civil Application No.5439/2001 in
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Second Appeal No.356/2001. Accordingly, by
order dated 02.07.2007, the High Court
appointed the Court Receiver in respect of
the entire suit property, including the
portion sold to respondent nos. 9 and 10. The
Contempt Court has also restrained respondent
nos.3, 9 and 10 from alienating the suit
properties including Gat No.88. The learned
Senior Counsel invited my attention to the
order dated 02.07.2007 passed in Contempt
Petition No.34/2007.
4] It is submitted that in spite of
stay order dated 20.12.2001 passed in Civil
Application No.5439/2001 in Second Appeal No.
356/2001 and in Contempt Petition No.34/2007,
the public proclamation for selling the suit
property bearing Gat No.88 was published in
daily news paper dated 25.06.2009. It was
stated in the said proclamation that there is
agreement to sell in respect of the said suit
land and if anybody has objection, he should
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submit the said objections to the concerned
Advocate. Since there was again violation of
the interim orders passed by the High Court,
therefore, respondent no.1 again filed
Contempt Petition No.251/2009 in Contempt
Petition No.34/2007. On 28.08.2009, the High
Court issued notices in Contempt Petition No.
251/2009. It is submitted that though the
various proceedings were pending before the
Court, still respondent no.1 did not inform
the applicant anything about the said
proceeding. The applicant was not joined as a
party respondent to the said proceedings.
The applicant was not aware about the said
proceedings. Respondent no.1 as well as
respondent Nos.2A to 2F and 3 were very much
aware about the execution of sale deeds dated
26.02.1998 and 29.09.1998 in favour of the
present applicant. Still the said respondents
tried to compromise the matter by overlooking
the right of the present applicant. The
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applicant came to know about the said fact in
the month of November 2011, and thereafter,
immediately i.e. on 07.12.2011, the applicant
filed Civil Application No.15083/2011 for
intervention in Second Appeal No.356/2001.
However, the said Civil Application was not
considered by the High Court.
5] It is submitted that in spite of
knowledge to the respondent nos.1, 2A to 2F
and 3 about the sale deeds executed in favour
of applicant on 26.02.1998 and 29.09.1998,
they proceeded to compromise the matter by
filing compromise pursis. Neither the present
applicant, nor the purchasers i.e. respondent
nos.9 and 10 were made as party to the said
compromise pursis. It is submitted that Civil
Application No.13220/2011 came up for hearing
on 04.11.2011 before this Court and
accordingly the order was passed accepting
the compromise. The record shows that the
said Civil Application was filed on
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03.11.2011. On 04.11.2011, the compromise was
recorded by the learned Registrar (Judicial).
On perusal of the record, it would reveal
that the compromise was recorded in Civil
Application No.13219/2011 filed in Contempt
Petition No.34/2007. The learned Registrar
(Judicial) observed in his order dated
04.11.2011 that respondent nos.9 and 10 (i.e.
respondent nos.8 and 9 of Contempt Petition
No.34/2007) were not parties to the
compromise pursis. The Registrar further
observed that respondent nos.2A to 2F (i.e.
respondent nos.1 to 6 of Contempt Petition
No.34/2007) were discharged from the Contempt
proceedings. Therefore, it is crystal clear
that the Registrar (Judicial) has recorded
the compromise in Contempt Petition
No.37/2007. The record shows that the
compromise filed vide Civil Application No.
13220/2011 in Second Appeal No.356/2001 was
not recorded.
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6] It is submitted that while disposing
of the Second Appeal in terms of compromise
pursis, this Court has specifically observed
that the compromise entered into between the
parties is at their own risk and
responsibility. It is submitted that the
compromise pursis filed vide Civil
Application No.13220/2011 in Second Appeal
No.356/2001 was not at all verified by the
learned Registrar (Judicial). The record
shows that the compromise filed vide Civil
Application No.13219/2011 in Contempt
Petition No.34/2007 was verified by the
Registrar (Judicial) On 04.11.2011. It is
submitted that as soon as the Second Appeal
came to be disposed of by order dated
23.12.2011, respondent no.3 has executed the
registered sale deed dated 26.12.2011 in
favour of respondent nos.4 to 8 and sold 66
R. land from Gat No.88 for Rs.2,06,85,000/.
Respondent nos.1 and 2A to 2F are
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consenting parties to the said sale deed.
That apart, some other persons are also
consenting party to the said sale deed. On
perusal of the recitals of the sale deed
dated 26.12.2011, it would reveal that the
sale deed was drafted in the month of
November, 2011, itself. That apart, the
record shows that before that the parties
have entered into agreement for selling the
suit property and the amount was also paid by
cheques. The recitals of the sale deeds shows
that the amount of consideration was paid in
the month of October and November 2011 by
issuing cheques. Thus, though there was stay,
still respondent Nos.1, 2A to 2F, 3 and 4 to
8 have entered into an agreement and
completed all the formalities for execution
of the sale deed. The said fact itself shows
that the respondent nos.1, 2A to 2F, 3 and
respondent nos.4 to 8 have played the fraud
and got executed the sale deed. It is
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submitted that the evidence on record clearly
shows that the respondents have obtained the
decree by playing fraud and thereafter got
executed the sale deed by overlooking the
right of the present applicant. Therefore,
the said sale deeds deserves to be declared
as null and void.
7] It is further submitted that
respondent no.1 executed the registered sale
deeds dated 26.02.1998 and 29.09.1998 in
pursuance of the agreement to sell dated
16.12.1995 and sold 94 R. land from Gat No.88
to the present applicant. Respondent nos.2
A, 2C and 2F, being Legal representatives
of deceased respondent no.2 have also given
consent to the said sale deeds. Respondent
nos.1, 2A to 2F and 3 to 10 were very well
aware about the right of the applicant.
Still respondent no.3 executed the sale deed
dated 18.08.2006 in favour of respondent nos.
9 and 10 and sold 20 R. land from Gat No.88
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though there was injunction order passed by
this Court. Thereafter, respondent nos.1, 2
A to 2F and 3 again sold 66 R. land to
respondent nos.4 to 8 by executing sale deed
dated 26.12.2011. The record shows that
before compromising the matter and in spite
of injunction order, the said respondents
entered into the transaction regarding
selling of the land. By suppressing all
these facts, the respondents herein have got
compromise the matter. The record shows that
by playing fraud the respondents have
obtained the decree of compromise. Therefore,
the order dated 23.12.2011 deserves to be
recalled.
8] It is submitted that the applicant
is having substantive right in the suit
property bearing agricultural land Gat No.88.
The Civil Application filed by the applicant
bearing Civil Application No.15083/2011 came
to be disposed of without any speaking order.
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When the matter was heard on 23.12.2011, the
advocate of the applicant as well as the
applicant was not present, and therefore,
Civil Application No.15083/2011 filed by the
applicant was not brought to the notice of
this Court. It is submitted that by way of
filing compromise pursis, the other parties
have accepted the share of the respondent no.
1 in the property. Respondent no.1 had sold
the suit property to the applicant by
executing two sale deeds dated 26.02.1998 and
29.09.1998. However, the said aspect has not
been considered at all while disposing of the
Second Appeal. It is submitted that when the
sale deeds were executed in favour of
applicant and the applicant was put in
possession of the property from Gat No.88 by
respondent no.1, the question of accepting
compromise without the applicant is party to
the said proceedings does not arise.
Therefore, the order disposing of the Second
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Appeal deserves to be recalled.
9] It is submitted that since the
applicant is a aggrieved person, the
application for recalling/review is
maintainable. The learned Senior Counsel
invited my attention to the reported judgment
in the case of Shapoorji Data Processing Ltd.
1
Vs. Ameer Trading Corporation Ltd. and
submits that in the said judgment, the High
Court has taken a view that for filing review
application party must be ‘aggrieved party’
and must file petition within time limit.
Though the person is not party to proceedings
but is aggrieved person, can file the review
petition. Learned Senior Counsel also invited
my attention to the judgment of the High
Court in the case of Dinkar Indrabhan
Kadaskar & Ors. Vs. Grampanchayat Bhagwatipur
2
& Ors. and submits that, in that case also
the High Court held that the applicants
1 AIR 2003 Bombay 228
2 2009 (1) Bom.C.R. 39
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therein are aggrieved persons being
interested in affairs of trust, therefore,
review application is maintainable though
they were not parties to proceedings.
Relying upon the judgment of the Supreme
Court in the case of A.Nawab John and others
3
Vs. V.N.Subramaniyam and in particular para
22 thereof, it is submitted that a pendente
lite purchaser’s application for impleadment
should normally be allowed or ‘considered
liberally’. The learned Senior Counsel
further pressed into service exposition of
law in the case of Dhanlakshmi and others Vs.
4
P. Mohan and others and in particular para 5
thereof and submits that in that case also
the Court has taken a view that the
appellants therein were necessary parties to
the suit. He also invited my attention to the
reported judgment in the case of T.G.Ashok
5
Kumar Vs. Govindammal and another . He
3 [2012] 7 SCC 738
4 [2007] 10 SCC 719
5 [2010] 14 SCC 370
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further placed reliance in the case of
A.V.Papayya Sastry and others Vs. Govt. of
6
A.P. and others and submits that fraud
vitiates all judicial acts whether in rem or
in personam hence judgment, decree or order
obtained by fraud has to be treated as non
est and nullity, whether by court of first
instance or by the final court. It can be
challenged in any court, at any time, in
appeal, revision, writ or even in collateral
proceedings. For the said preposition, he
further pressed into service exposition of
law in the case of T.Vijendradas & Anr. Vs.
7
M. Subramanian & Ors. . Therefore, relying
upon the averments in the application,
grounds taken therein, annexures thereto,
relevant documents and the aforesaid
judgments cited during the course of hearing,
the learned Senior Counsel appearing for the
applicant submits that the application
6 [2007] 4 SCC 221
7 2008 [1] All MR 446
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deserves to be allowed.
10] The learned counsel appearing for
respondent no.1 relying upon the averments in
the affidavitinreply and also additional
affidavitinreply made following
submissions:
11] The present controversy is flowing
from Regular Civil Suit No.475/1994 filed by
the original plaintiffappellant Asaram for
effecting the partition and possession of the
property belong to HUF. The controversy about
the right of intervenerapplicant under the
alleged sale deeds to the extent of the
property mentioned therein, therefore, the
dispute sought to be raised by him is outside
the scope of the suit for partition. The
character of a suit for partition cannot be
converted into a suit by a stranger like the
applicant herein, based on title for the
recovery of possession as – (i) The cause of
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action for such a subsequent proceeding would
be different; (ii) The pleadings of the two
proceedings would not go hand in hand; (iii)
The reliefs claimed by the parties would be
altogether different; (iv) The points in
issue, the evidence, both oral as well as
documentary in the two proceedings would be
at variance with each other; (v) All the
issues or matters referred to above involve
disputed questions of fact which cannot be
gone into in a Second Appeal by the High
Court at the behest of a stranger to a
proceeding and (vi) so also the source of
rights claimed by the parties would be
totally different. The learned counsel
appearing for respondent no.1 pressed into
service exposition of law in the case of
8
Kasturi Vs. Iyyamperumal and others and
submits that in the facts of that case the
Supreme Court has taken a view that a party
who is approaching the Court by invoking
8 [2005] 6 SCC 733
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Order 1 Rule 10 for becoming a party to the
proceedings must satisfy two tests firstly ,
there must be a right to some relief against
such party in respect of controversies
involved in the proceedings, or, secondly , no
effective decree can be passed in his
absence. It is submitted that the review
applicant has alleged that the original
plaintiff in Regular Civil Suit No.475/1994 –
the appellant in the Second Appeal and
respondent in the application for review had
executed two sale deeds dated 26.02.1998 and
29.09.1998 in his favour in respect of two
portions, admeasuring 63 and 32 R.
respectively, in the suit property bearing
Gat No.88. The alleged sale deeds under
consideration are executed after the decree
of the trial Court in Regular Civil Suit No.
475/1994 was stayed by the Appellate Court,
Aurangabad. in a substantive appeal i.e.
Regular Civil Appeal No.183/1995 filed by
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Shankar and Babasaheb original defendants.
The learned District Judge, Aurnagabad, was
pleased to pass an order below Exhibit5 i.e.
the Stay Petition in Regular Civil Appeal No.
183/1995 on 20.07.1995, by which the stay was
granted to the execution of the decree in
Regular Civil Suit No.475/1994 until further
order. Therefore, the original plaintiff –
appellant gets no right of disposition to the
suit property and had no authority in the
eyes of law to execute the alleged sale deeds
dated 26.02.1998 and 29.09.1998, thus, the
alleged sale deeds are executed by
incompetent person, who had no right over the
suit property, thus no right divested to the
applicant under the alleged sale deeds,
therefore, the applicant has no right,
interest, title, ownership and possession
over the suit property. Further, the suit
property was then owned and possessed by
Babasaheb i.e. the respondent no.2, who is
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the brother of the original plaintiff,
Asaramappellant. Therefore, the appellant
had no right to execute the alleged sale
deeds in favour of the applicant.
12] It is submitted that Regular Civil
Appeal No.183/1995, which was filed by the
original defendant nos.1 and 2 i.e.
respondent no.2 in this application, was
allowed by the Appellate Court on 20.06.2001
and the suit was dismissed. It is submitted
that the entire litigation is about the
partition in the joint family which consisted
the plaintiff and the defendants in the suit
and the suit property had fallen in the share
of the original defendant no.2. The applicant
was never put in possession of the subject
matter of the alleged two sale deeds,
therefore, the recitals are contrary to the
fact and record. It is the contention of the
applicant that there was rise in the share of
Asaram by virtue of the alleged
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relinquishment of their share by the sisters
of Asaram is imaginary and amounts to
superseding and modifying the decree passed
by the District Court, Aurangabad, that too,
without suffering any adjudication in that
behalf. The learned counsel appearing for
respondent no.1 invited my attention to the
averments in the affidavitinreply and
submits that it is stated that respondent no.
1–Asaram had been addicted to liquor. He was,
therefore, always in dire need of money
almost every day. The applicant has taken
undue advantage of the vices of the appellant
and has obtained his signatures on the blank
papers and converted the same into the
alleged sale deeds in his own favour. It is
submitted that both these documents are
forged and bogus. The alleged agreement of
sale deed dated 16.12.1995 regarding an area
of 62 R. out of Gat No.88, the alleged sale
deed dated 26.02.1998 in that behalf and the
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alleged sale deed dated 29.09.1998 in respect
of an area of 32 R. are void for want of
certainty and identity of the subject matter
of transactions because admittedly the decree
for partition and separate possession passed
by the trial Court was stayed by the District
Court and the said decree was a preliminary
decree and the final decree was not then
drawn. Assuming for the sake of argument that
the appellant was entitled to sell an area of
62 R. out of Gat No.88 to the extent of his
rd
alleged 1/3 share therein, as it then stood,
he was prohibited from exercising his right
to do so by virtue of the stay order of the
District Court in Regular Civil Appeal No.
183/1995, operating against the decree of the
trial Court. Further, the alleged second
saledeed is equally illegal for one more
reason that the same was executed by the
appellant over and above his alleged and
rd
presumed entitlement to the extent of 1/3
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share in the suit property. The socalled
sale deeds dated 26.02.1998 and 29.09.1998
which are being relied on by the intervener
have seen light of the day for the first time
in the year 2012. The said documents were not
acted upon for over a period of 13 years. In
the natural course of things, a bona fide
purchaser for a valuable consideration would
have and ought to have exhibited and asserted
his title by some manifestation, one way or
the other, however, the applicant has not
acted bona fide , which proves beyond doubt
that the alleged sale deeds are false and
never meant to be executed.
13] The very fact that the appellant –
original plaintiff had filed the original
suit for partition and separate possession of
his alleged share in the suit property, shows
that he was never in possession of the suit
property. As a sequel to it, he could not
deliver possession of the same to the
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applicant. It, therefore, negatives not only
the veracity of the recitals regarding
delivery of possession of the properties
under the sale deeds to the applicant, but
also of the legality and validity of alleged
sale deeds. It further proves appellant’s
version that the two alleged transactions
were not genuine. It can be said with a very
high degree of certainty that whenever any
saledeed is without delivery of possession
of the property it becomes unconscionable and
gives rise to a presumption against its
veracity and genuineness. The applicant was
not an agriculturist on the date of the
alleged transactions and the same are void on
that count also. The applicant has never made
attempt to file application for impleading
him party in Regular Civil Appeal No.
183/1995. In fact, the recital of the alleged
sale deed clearly makes mentioned about
Regular Civil Suit No.475/1994, and
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therefore, the contention of the applicant
cannot be accepted that he was not aware
about pendency of Regular Civil Appeal. It is
submitted that the claim of the applicant is
barred by limitation. The Civil Application,
which was filed by the applicant in the year
2011 in the Second Appeal, was never
prosecuted and the applicant was never made
party in the Second Appeal. It is submitted
that the validity of the compromise cannot be
challenged by the applicant, who was not
party either to the suit/Regular Civil Appeal
or in the Second Appeal. No stranger can be
allowed to foist a compulsion on the estwhile
parties to any proceeding, who have arrived
at an amicable settlement, to once again
litigate amongst themselves at the behest of
a nonparty to the proceeding. It is
submitted that all parties to the Second
Appeal entered into compromise, and
therefore, it cannot be said that the parties
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to the Second Appeal have played fraud on the
Court. The compromise was verified and also
the Court ascertained that the said
compromise is without any coercion or with
free will. None of the parties to the
compromise has ever raised any doubt about
the genuineness of the compromise. The
applicant has no locus standi to raise any
question mark on the veracity of the
compromise, its endorsement and the location
of the endorsement. In support of the
aforesaid contention, the learned counsel
appearing for the respondent no.1 pressed
into service exposition of law in the cases
of Khalil Haji Bholumiya Salar & Anr. Vs.
9
Parveen w/o. Sayyeduddin Razak & Ors. ,
Ramkrishna Shridhar & Ors. Vs. The Court
10
Receiver & Ors. , Shyam Lal and another Vs.
11
Sohan Lal and others , Amarnath and others
9 2012 (12) LJSOFT 417
10 2011 (1) All MR 623
11 AIR 1928 Allahabad 3
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Vs. Deputy Director of Consolidation, Kanpur
12
and another , Siddalingeshwar and others Vs.
13
Virupaxgouda and others , Horil Vs. Keshav
14
and Another and Hussainbhai Allarakhbhai
Dariaya and others Vs. State of Gujarat and
15
others . It is submitted that the applicant
is raising disputed questions of facts
inasmuch as he wishes to prove the sale deed
executed in his favour in Review Application
filed in the Second Appeal. Such controversy,
which is beyond scope and purview of the
Second Appeal, cannot be gone into by this
Court.
14] The learned counsel appearing for
the other non applicants/respondents in the
Second Appeal submits that they adopt the
argument of the learned counsel appearing for
respondent no.1. The learned Senior Counsel
appearing for respondent nos.4 and 8 also
12 AIR 1985 Allahabad 163
13 AIR 2003 Karnataka 407
14 (2012) 5 SCC 525
15 (2010) 8 SCC 759
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invited my attention to the various documents
and also to the various judgments and submits
that the review application is not
maintainable since the same raises disputed
questions of fact, and such consideration
would fall outside the purview of the
controversy involved in the Second Appeal.
15] I have given careful consideration
to the submissions of the learned Senior
Counsel appearing for the applicant, the
learned counsel appearing for the respondent
nos.1 and 2 and the learned Senior Counsel
appearing for the respondent Nos.4 and 8.
With their able assistance, perused the
averments in the application, annexures
thereto and the entire original record
pertains to the Second Appeal No.356/2001.
Upon careful perusal of the averments in the
application for review, it is abundantly
clear that the applicant was not party to the
suit/Regular Civil Appeal or in Second
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Appeal. The contention of the learned senior
counsel appearing for the applicant that the
applicant filed Civil Application for
intervention / for impleading him as party in
the Second Appeal came to be disposed of
without any adjudication, and therefore, the
present application for review, deserves to
be entertained, has no force. Merely because
the applicant filed application for
impleading him party in the Second Appeal in
the year 2011, and same was kept pending
without prosecuting the same, would not
entitle the applicant to file review
application when he was not impleaded as
party respondent in Second Appeal. Upon
perusal of record it appears that, the
Advocate, who filed such application on
behalf of the applicant, was not present on
the date of disposal of the Second Appeal, or
even on earlier dates whenever Second Appeal
was listed before the Court for hearing. The
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said Civil Application came to be disposed of
in view of disposal of Second Appeal without
passing any specific orders and as a result
the applicant was not made party to the
Second Appeal till disposal of the appeal.
There is two fold contention of the
applicant; firstly, the review application
can be entertained at his instance since he
is a ‘aggrieved person’ and secondly, two
sale deeds dated 26.02.1998 and 29.09.1998
executed in his favour by the appellant
Asaram, are genuine transactions, and
therefore, he has right over the suit
property in Gat No.88 to the extent of the
share of appellant – Asaram sold in his
favour. In the first place, as already
observed, the review applicant was not party
to the suit / Regular Civil Appeal or Second
Appeal, and therefore, he is a stranger to
the said proceedings, which ultimately
culminated into the disposal of the Second
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Appeal in terms of settlement arrived between
the parties to the Second Appeal. Secondly,
even to hold that the review applicant is a
aggrieved person, the Court of competent
jurisdiction was not approached by the
applicant to adjudicate his contention that,
two sale deeds dated 26.02.1998 and
29.09.1998 executed by the appellant Asaram
in favour of applicant is a result of lawful
and valid transaction and by virtue of it, he
became owner and came in possession of the
said property . The appellant in Second
Appeal Shri Asaram not only has disputed said
sale transactions, but even by way of filing
additional affidavit, the stand is taken by
him that, he has never executed the alleged
sale deeds in favour of the applicant. It is
further stated in the additional affidavit
that, even if assuming that Asaram has
executed such alleged sale deeds, he was not
competent to execute the said sale deeds in
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view of the stay granted by the Appellate
Court to the decree passed by the trial
Court, and also decree passed by the trial
Court was never sent to the Collector for
effecting partition by metes and bounds. It
is not necessary for this Court to go into
the greater details, suffice it to say that
the review application at the instance of the
applicant cannot be entertained. The issue
raised by the applicant that two sale deeds
dated 26.02.1998 and 29.09.1998 is genuine
transaction and by virtue of it, he became
owner and is in lawful possession of suit
property, would fall beyond the purview of
controversy which was raised in the Second
Appeal. Such adjudication at the instance of
the applicant would lead to the adjudication
of the disputed questions of fact and also
would be beyond the controversy, which was
involved in the Second Appeal arising out of
the proceedings in Regular Civil Suit No.
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475/1994 filed by Asaram.
16] In that view of the matter, this
Court is of the opinion that the review
application deserves no consideration. This
Court is bound by the ratio laid down in two
judgments delivered at Principal Seat, cited
across the bar by the learned counsel
appearing for the respondents in the case of
Khalil Haji Bholumiya Salar (cited supra) and
also in the case of Ramkrishna Shridhar & Ors
(cited supra) wherein the view is taken that
stranger to the suit is a stranger to the
agreement of compromise and he cannot file an
application either in the suit or in the
appeal proceedings to challenge a compromise
decree as he is not a party to the suit, bar
under Rule 3A of Order 23 of CPC cannot be
extended to him, said provision must confine
only to the parties to the suit who are
parties to the compromise agreement, stranger
to a compromise decree cannot file an
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application in a suit or an appeal to
challenge a compromise as not being lawful,
but must file a separate suit for the
purpose.
17] In that view of the matter, this
Court is of the considered view that the
review application deserves no consideration,
the same is devoid of any merits and stands
rejected. Civil Application No.5417/2012 for
adding as party respondents also stands
disposed of.
Sd/
[S.S.SHINDE]
JUDGE
At this stage, the learned counsel
appearing for the review applicant prays for
continuation of interim order, which was in
force during pendency of the Review
Application. The prayer is vehemently opposed
by the learned counsel appearing for the non
applicants/Respondents.
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However, in the interest of justice,
the interim order, which was in force during
pendency of this application, shall remain in
force for further six weeks.
Sd/
[S.S.SHINDE]
JUDGE
DDC
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