Telangana High Court
Mohd Jahangir Pasha, Secunderabad vs J S Krishna Rao, Hyderabad And 9 Others on 3 June, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
SECOND APPEAL No.530 of 2014
JUDGMENT:
This Second Appeal is filed by the appellant - plaintiff aggrieved by the judgment and decree passed in A.S.No.235 of 2007 dated 30.01.2014 by the learned Special Judge for Trial of Offences under SCs / STs (POA) Act - cum - XX Additional Chief Judge, City Civil Court, Secunderabad confirming the judgment and decree passed in O.S.No.734 of 2001 dated 08.10.2007 by the learned Additional Rent Controller - cum - XVIII Junior Civil Judge (Fast Track Court), Secunderabad.
2. The plaintiff filed a suit to declare the judgment and decree dated 22.04.1959 passed by the learned II Assistant Judge, City Civil Court, Secunderabad in O.S.No.593 of 1958 as null and void as the same was obtained by the plaintiff therein in collusion with defendant No.1 therein by playing fraud.
3. The case of the plaintiff in brief was that the father of the plaintiff by name Mohd.Sharfuddin, Mohd.Kareemulla and one J.Narsimloo Mudiraj jointly purchased non-agricultural lands in Survey Nos.61 and 62 admeasuring 16 acres together with structures and a well at Trimulgherry (Tirumalagiri), 2 Dr.GRR, J sa_530_2014 Secunderabad Cantonment through a sale deed dated 05.05.1958. All the three joint owners made the land into plots by preparing a layout and jointly sold away number of plots to individuals. In or about 1959, when about 30 plots remained to be sold, the three owners by mutual understanding allotted one triangular piece covered by Plot No.79-A to the plaintiff's father Mohd.Sharfuddin, Md.Karimullah took cash and the rest of the unsold plots were allotted to J.Narsimloo towards their respective share of profits in the transaction and thereafter Narsimloo Mudiraj individually sold all the plots that fell to his share. But Mohd.Sharfuddin retained the plot in his possession since 1959 and he died in the year 1965. During his lifetime, he also gifted a piece of land to his nephew Gulam Mohiuddin and the remaining land was in possession and enjoyment of the plaintiff and his mother till she died in the year 1993. Thereafter, the plaintiff continued in possession of the property in his own right. The plaintiff protected his possession of plot No.78-A against encroachments. In 1986, when he observed that some of the boundary stones to the west of the plot No.78-A were missing, he approached the survey and settlement Department and got the plot surveyed and restored the missing stones under a panchanama. The plaintiff's neighbors filed two batches of injunction suits in O.S.Nos.1441 of 1988 to 1445 of 1988, O.S.No.1521 of 1988 to O.S.No.1530 of 1988 and O.S.No.1886 of 1986 alleging that the plaintiff encroached into their land. In those cases, neither Namsimloo Mudiraj nor his alleged heirs had 3 Dr.GRR, J sa_530_2014 taken any interest and no appeals were pending against the said suits. The plaintiff also filed O.S.No.545 of 1991 against one M.J.Swamy, who wrongfully laid a claim over a portion of land and the same was pending as A.S.No.110 of 2000. The plaintiff also filed O.S.No.934 of 1997 against one John Gernord and M/s.Sri Chakra Estate, which was pending on the file of the XI Junior Civil Judge, City Civil Court, Secunderabad. When the plaintiff and his mother intended to construct a residential house in their plot and applied for permission to the Cantonment Authorities in 1986, the Cantonment Authorities directed the plaintiff to produce connected documents in proof of their title. Since there was no document showing their exclusive title, the plaintiff and his mother filed a suit for declaration against the remaining co-owners Md.Kareemullah and J.Narsimloo Mudiraj vide O.S.No.1015 of 1987 on the file of the III Senior Civil Judge, Secunderabad. The suit schedule property was shown as 1281 square yards. The suit was decided ex-parte. When the plaintiff tried to serve the summon through the Court as well as register post, the same was returned un-served as "address not found". Thereafter, a paper publication was ordered for service of summons. After publication of the notice, the Court having found that the defendants did not appear in person or through counsel, set them ex- parte and passed a decree on 10.02.1988. Subsequently, the plaintiff and his mother filed O.S.No.1032 of 1988 for declaration regarding the deficit area of 3136 square yards not covered by the earlier suit. The same was also decreed 4 Dr.GRR, J sa_530_2014 ex-parte on 15.12.1988. The plaintiff defended his possession in several suits with regard to plot No.78-A. During the trial of one suit in O.S.No.600 of 1994, on the file of the I Junior Civil Judge, Secunderabad, one Sri J.N.Padmanabha Rao, S/o.J.Narsimloo Mudiraj, who was the third defendant herein stated as PW.2 on 06.04.1998 that his father died in 1977. Thereafter, the plaintiff's opponents started attacking the decrees obtained by the plaintiff and his mother against Narsimloo Mudiraj and another as void decrees as they were passed against a dead person. It was also claimed that plaintiff's father had no right in Plot No.78-A, as he was a party to the compromise decree in O.S.No.593/1 of 1958 on the file of the II Assistant Judge, City Civil Court, Secunderabad. The plaintiff was not a party to the compromise. He did not know how the said decree was procured by Narsimloo Mudiraj. When the said decree was set up to deprive him of his rights, the plaintiff applied and obtained copies of the plaint, the orders, written statement, compromise decree and proceedings of the Court and got the certified copies on 27.07.1999. At that time, he came to know that the compromise decree in O.S.No.593/1 of 1958 was a fraudulent manipulation by Narsimloo Mudiraj. The said suit was filed by one Kareemullah against the father of the plaintiff, Mohd.Sharfuddin, shown as defendant No.2 and Narsimloo Mudiraj, the father of defendants 2 and 3, who was figured as defendant No.1. The said suit was filed by Kareemullah for dissolution of partnership and settlement of accounts. As the defendant No.1 acting as a 5 Dr.GRR, J sa_530_2014 Managing Partner, sold large number of plots, but did not render proper accounts, the said suit was filed on 01.12.1958 on the file of the II Assistant Judge, City Civil Court, Secunderabad. As the II Assistant Judge was on leave, it was put up before the In-charge Officer on 10.12.1958. The same was registered and was put up for issuance of summons to the defendants on 24.12.1958 and ended in a compromise, which was recorded by the Court on 22.04.1959 and was decreed in terms of compromise. The said decree was vitiated by fraud played on the Court as well as on the defendant No.2 in that suit. The fraud consisted of purposely avoiding summons being served on the defendant No.2, i.e. the plaintiff's father herein. Lest, he would have contested the suit. The plaintiff did not furnish the correct residential address of defendant No.2, who resided at H.No.3-10-1985, Trimulgherry, Secunderabad and manipulated service on defendant No.2 through an accomplice. The original summons or notice forms were not available in the file when inspected by the plaintiff. There was a docket order dated 24.12.1958 that summons were served written by clerk, but there was no endorsement that the defendants were called on 24.12.1958 and whether they were present or absent. The said entry on the docket could have been managed in collusion with the clerk, who made the entry. There was a docket order on 25.02.1959 that Mr.Chandulal had filed vakalath. It does not say for whom, he filed the vakalath. At the time of plaintiff's inspection, the vakalath was not found in the record. There was 6 Dr.GRR, J sa_530_2014 nothing in the docket sheet or in the proceedings to show that defendant No.2 was served with summons or that he was present or that Mr.Chandulal filed vakalath for him. But the case proceeded, as if Mr.Chandulal, Advocate appeared for the defendants. On 16.04.1959, a compromise petition purporting to be signed by all the parties was filed before the In-charge Officer of the Court and was directed to put up on the date on which the suit was posted. There was no endorsement to show that Mr.Chandulal was present when the said compromise was filed. It seems to have been filed only by the advocate for the plaintiff with the connivance of defendant No.1 in that suit. The signature appearing on the compromise petition dated 16.04.1959 was not that of the plaintiff's father. It appeared to be a forged signature. Thus, a fraud was played on the Court as well as on defendant No.2 in that suit. A compromise between the parties to be effective must be read over to all the parties to the suit in the presence of the Presiding Officer and the contents should be admitted by them to be true. The parties should be identified by their advocates. No such endorsement was made on the same and the compromise was accepted without due formalities. The suit was decreed by In-charge Officer due to the continued absence of the II Assistant Judge. The In-charge Officer had not taken due caution to see that due formalities were observed in letter and spirit. Taking undue advantage of the same, the defendant No.1 Narsimloo Mudiraj acted in collusion with the plaintiff in that suit to get the suit disposed of in the way he 7 Dr.GRR, J sa_530_2014 wanted by playing fraud on the Court with the connivance of the ministerial staff. The said compromise was vitiated by fraud for the reason that plaintiff's father's signature might have been procured by defendant No.1 therein taking advantage of his not understanding English and taking advantage of his misplaced trust without explaining the contents of the document and the compromise was procured either by impersonating him through someone to suit the ends of defendant No.1, Narsimloo Mudiraj. A plain reading of the compromise would show that it was only for the benefit of Narsimloo Mudiraj that the compromise was made and got recorded. The plaintiff in the said suit got a share of only a small sum of Rs.1,000/-, out of which also a sum of Rs.300/- was said to have been paid and a money decree was passed in favor of the plaintiff for Rs.700/-, which was not satisfied by payment at any time as recorded in the suit or decree. It was also a fraud played on the Court in obtaining the above compromise decree. The suit was filed for dissolution of partnership and for setting aside one-third share of the plaintiff and to pass a decree in his favor. But no name of the firm was even mentioned in the suit. In the compromise petition, it was stated that there was a fourth partner, who also had an equal share. But he was not impleaded as a party in the suit and he had not signed the compromise. There was nothing in the compromise decree to show when the said partnership was dissolved or from what date it would stand dissolved. The decree granted to defendant No.1 would enumerate or describe 8 Dr.GRR, J sa_530_2014 the remaining unsold plots or structures. The said portion of the decree was beyond the prayer in the suit. The compromise decree was also required to be registered. Since, registration was not done, the decree was not valid in law. The decree declared that Mr.M.K.Shamlal was the fourth partner and he had no claim over the suit plot or any rights or share in it. The introduction of the said clause without signature of M.K.Shamlal would amount to playing fraud on Court. There were no accounts placed before the Court as to what amounts were paid to the parties especially the defendant No.2 and whether he was paid his due share in cash or by allotting property to him and no receipt was obtained from defendant No.2 at any time to show payment of any money to him. In case of an unregistered partnership firm, a partner would be having no right to file a suit for accounts except by asking for dissolution of the partnership and settlement of accounts. Since the compromise did not set out that the firm was dissolved, the decree did not say so, the relief was not granted by the Court. Under the said circumstances, the Court had no jurisdiction to pass a decree for specific amount in favor of the plaintiff. As no written statements were filed, the question of settlement of other partners' shares would not arise. So the decree passed relating to partners other than the plaintiff was one without jurisdiction of the Court. For the said reasons, the decree was void. The plaintiff got knowledge of the fraud played on his father only on inspecting the files, when he applied for certified copies, which were given to him on 9 Dr.GRR, J sa_530_2014 27.07.1999. The suit was within time. As the above decree was casting a cloud on the title of his property in plot No.78-A, which was in his enjoyment for over 35 years, for which the plaintiff also acquired title by adverse possession, the plaintiff was compelled to file the suit for setting aside the compromise decree in O.S.No.593/1 of 1958. He further submitted that to the best of his knowledge, information and belief Mohd.Kareemullah, the plaintiff in O.S.No.593/1 of 1958 died without leaving any heirs. Even if he left any heirs, the plaintiff had no knowledge of their whereabouts. The plaintiff was challenging the decree only so far as it would affect his father's rights, as such there was no need to implead any person as representing the estate of Mohd.Kareemullah.
4. Defendants 2 and 3 are the sons of J.Narsimloo Mudiraj and defendant No.1 is the grandson of Narsimloo Mudiraj representing his branch. Defendants 1 and 3 filed written statement and defendant No.2 filed a memo adopting the written statement of defendants 2 and 3. They admitted that late Mohd.Sharfuddin, late Mohd.Kareemullah and late J.Narsimloo Mudiraj jointly purchased non-agricultural land in Survey Nos.61 and 62 along with structures and a well at Trimulgherry Village, Secunderabad to an extent of 16 acres through a registered sale deed dated 05.05.1958 and that all the three owners converted that land into plots. But, they denied that by mutual understanding, a triangular piece of land covered by plot No.78-A was allotted to Mohd.Sharfuddin. They stated that they had no knowledge about the two 10 Dr.GRR, J sa_530_2014 batches of injunction suits filed by the neighbors against the plaintiff alleging encroachment into their land and about the plaintiff filing O.S.No.545 of 1991 and that the same was pending in A.S.No.110 of 2000 and also about filing of O.S.No.934 of 1997 by the plaintiff against others. They stated that it had come to the knowledge of the defendants much later about the filing of the suit by the plaintiff and his mother vide O.S.No.1015 of 1987 and O.S.No.1032 of 1988 for declaration against late Mohd.Kareemullah and late J.Narsimloo Mudiraj and stated that both the defendants in the said suits died long back. As the suits were filed against dead persons, both the suits should be treated as null and void and not binding on the defendants. Defendant No.3 deposed as PW.2 in O.S.No.600 of 1994 on the file of the Junior Civil Judge, Secunderabad and stated the fact that his father died in the year 1977 and the plaintiff's father had no right in plot No.78-A or any other unsold land or structures in Survey Nos.61 and 62 as he had relinquished all his rights in the partnership after dissolution of partnership through a compromise decree in O.S.No.593/1 of 1958 on the file of the II Assistant Judge, Secunderabad. They contended that the plaintiff was aware of the existence of the compromise decree in O.S.No.593/1 of 1958 much earlier to 27.07.1999, when the certified copies of the same were marked in the suit, in which the plaintiff was a party. They denied that the decree in O.S.No.593 of 1958 was vitiated by fraud laid on the Court as well as on the defendant No.2 therein and that the signature of defendant No.2 appearing 11 Dr.GRR, J sa_530_2014 therein was forged. They contended that neither the plaintiff nor the defendants in the present suit were parties to that suit. As such, doubting the integrity of the Court and its staff and casting baseless allegations was malicious. They contended that the plaintiff could not make baseless allegations against the Presiding Officer, as he had no personal knowledge about the Court proceedings. Basing on the docket, the plaintiff could not blame or cast aspersions on the Court proceedings after lapse of more than 40 years. The plaintiff could not question the said decree stating that the payments were not made, as the plaintiff was no way concerned with the said matter. The plaintiff had no locus-standi to question the same at a belated stage of more than 40 years. They contended that once the settlement of partnership of accounts was over and the claims and rights of all the partners were settled mutually as per the compromise decree, there need not be a separate mention of dissolution of firm in the compromise memo, because it was not a registered partnership firm and the plaintiff could not express doubts about the dissolution . They contended that the plaintiff had full knowledge about the said decree since long time more particularly when the proceedings had taken place in O.S.No.600 / 1994 on the file of the I Assistant Judge, Secunderabad and even in other batch cases when the certified copies of compromise decree in O.S.No.593/1 of 1958 were marked in the year 1995 itself. Now, the Plaintiff could not say that he got the knowledge of it only on 27.07.1999. Filing of the suit on 02.04.2001 by the plaintiff after the decree 12 Dr.GRR, J sa_530_2014 was passed in the year 1958 was hopelessly barred by limitation. The legal heirs of Mohd.Kareemullah were not impleaded. As such, the suit in the present form was not maintainable. The suit was liable to be dismissed for non-joinder of proper and necessary parties. The cause of action alleged was false, baseless and concocted only for the purpose of filing the suit. The compromise decree in O.S.No.593/1 of 1958 became final and binding on all the joint partners. By virtue of the said compromise decree, J.Narsimloo Mudiraj alone became as absolute owner of all the remaining unsold plots in Survey Nos.61 and 62. Subsequent to passing the compromise decree, J.Narsimloo Mudiraj sold and executed many sale deeds as absolute owner in respect of the remaining unsold plots and other areas in Survey Nos.61 and 62. The same was done during the life time of plaintiff's father and other parties in the suit. They never questioned or challenged the compromise decree or claimed any interest in Survey Nos.61 and 62. The said Narsimloo Mudiraj carved out few plots, which were not marked in the original layout and sold to other parties. All such plot owners had made construction in and over the said land. The plaintiff's father Mohd.Sharfuddin had no rights whatsoever in Survey Nos.61 and 62 subsequent to the compromise decree. He never questioned the validity of the same during his lifetime. All the suits in which the plaintiff was involved were lost after due trial. The Courts had thoroughly examined and gone through the compromise decree in O.S.No.593/1 of 1958 and held that the plaintiff's father 13 Dr.GRR, J sa_530_2014 Mohd.Sharfuddin had no rights in Survey Nos.61 and 62 and the plaintiff could not get any right whatsoever. The plaintiff ought to have impleaded all the original parties or their legal heirs including the plot owners, who purchased the plots from J.Narsimloo Mudiraj, who executed the sale deeds as absolute owner by virtue of the said compromise decree. As such, the suit was liable to be dismissed on the said grounds and prayed to dismiss the suit with costs.
5. Basing on the said pleadings, the trial court framed the issues as follows:
i) Whether the plaintiff is entitled to seek the declaration that the judgment and decree dated 22.04.1959 passed by the learned II Assistant Judge, City Civil Court, Secunderabad in O.S.No.593/1/1958 as null and void?
ii) Whether the suit is bad for non-joinder of necessary and proper parties?
iii) To what relief?
An additional issue was framed on 31.03.2004 as:
Whether the judgment and decree passed by the learned II Assistant Judge, City Civil Court, Secunderabad in O.S.No.593/1/1958 was obtained by playing fraud as alleged by the plaintiff herein?
Another issue was framed on 09.08.2007 as:
Whether the suit filed by the plaintiff for the relief of declaration as prayed for is barred by limitation?14
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6. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A32. The Power of Attorney holder of the defendants 1 to 3 was examined as DW.1 and got marked Exs.B1 to B20.
7. The trial court on considering the oral and documentary evidence on record, dismissed the suit.
8. Aggrieved by the said dismissal, the plaintiff preferred an appeal. The appeal was heard by the Special Judge for Trial of Offences under SCs / STs (POA) Act - cum - VI Additional Metropolitan Sessions Judge - cum - XX Additional Chief Judge, Secunderabad vide judgment and decree in A.S.No.235 of 2007 dated 30.01.2014 dismissed the appeal confirming the judgment of the trial court in dismissing the suit.
9. Aggrieved by the said dismissal, the plaintiff preferred this appeal raising the following substantial questions of law:
a) Whether the courts below were justified in dismissing the suit, by misreading the plaint, and the evidence on record?
b) Whether the findings of the courts below that the suit is barred by limitation, is correct, when it is the specific case of plaintiff that he came to know about the fraud in obtaining the decree in O.S.No.593/1 of 1958, only upon verification of the record in O.S.No.593/1 of 1958, and after obtaining of certified copies of the record on 27.07.1999, and the suit being filed on 03.04.2001, which is within 3 years from the date of knowledge?15
Dr.GRR, J sa_530_2014
c) Whether the courts below were justified in holding that the suit is bad for non joinder of the legal heirs of Mr.Kareemullah, when the plaintiff is not questioning any of the sales done and carried out by Mr.Nirsimloo Mudiraj and Mr.Kareemullah, except Plot No.78/A, which admittedly is not the case of the defendants that it is allotted to them, under the alleged compromise decree?
d) Whether a compromise decree can be passed in the absence of the parties and their consent and without the signature of the counsel on record?
10. Learned counsel for the appellant also filed additional grounds vide I.A.No.1 of 2023.
11. Heard Sri D.Madhava Rao, learned counsel for the appellant on the substantial questions of law.
12. Learned counsel for the appellant contended that both the courts below failed to appreciate the entire case in a proper perspective. The evidence and documents were not considered at all. The findings of the courts below were contrary to record, law and facts of the case. The reasoning given by the Judges was perverse. Both the courts below failed to appreciate that the judgment and decree in O.S.No.593 /1 of 1958 were obtained by practicing fraud and collusion between the plaintiff and defendant No.1 therein. Therefore, the said judgment should have been declared as null and void. Both the courts below failed to see that the suit of the nature that was filed in O.S.No.593/1 of 1958 could not have been filed when there was no registered partnership deed. No 16 Dr.GRR, J sa_530_2014 proper court fee was paid and both the plaintiff and defendant No.1 therein have practiced fraud on the Court by getting it numbered and later getting it compromised without following due process of law. Both the courts below failed to appreciate that O.S.No.593/1 of 1958 was a suit that was devised with intent to avoid payment of proper court fee and to avoid payment of revenue by way of stamp duty which otherwise would have been paid for a deed of partition in respect of a joint property and later a memorandum of compromise was filed which itself was a unlawful agreement and would contravene Section 23 of the Indian Contract Act, 1872. Both the courts below failed to see that the terms of compromise were not acted upon and that the amounts that were agreed to be paid upon were not paid, which were required to be paid within the stipulated time, which also would show that the said compromise itself was a fraudulent one. Both the courts below failed to consider over the patent errors on the face of decree and the manner and method in which the decree was brought into existence without there being signatures of the parties against whom the alleged decree would operate. The memorandum of compromise would indicate and show that there was another partner called M.K.Shamlal, who was not a party to the suit, but memo and compromise records his acceptance but without his signature. Both the courts failed to consider that the terms of compromise recorded does not contain the signature of the defendants' counsel although his name was mentioned in the Court proceedings, which would cast any amount of 17 Dr.GRR, J sa_530_2014 doubt or suspicion with regard to the identity of the parties who could have signed the said compromise. Both the courts below failed to see that the defendants had not appeared to prove their case by getting into the witness box and face the cross-examination. The evidence of DW.1 could not have been considered as he had no knowledge regarding the case. Therefore, the suit ought to have been decreed as prayed for. Both the courts below erred in holding that the suit was barred by time. Both the courts below failed to consider that the original records in O.S.No.593/1 of 1958 were not available and whatever documents were available, the certified copies of the same were obtained and filed. Both the courts below erred in holding that the alignees of defendant No.1 were necessary parties. The Courts time and again reiterated that whenever parties who obtained any judgment or decree by collusion to have undue advantage by playing fraud on the Court, the Court should recall its order and time would not come in its way, which was a settled position of law.
13. The Amendment Act of 1976 had introduced drastic changes in the scope and ambit of Section 100 of CPC. A Second Appeal under Section 100 of CPC is now confined to cases where a question of law is involved and such question must be a substantial one. Section 100 of CPC as amended reads as under: 18
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100. Second Appeal -
(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this Section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:19
Dr.GRR, J sa_530_2014 [Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]"
14. In Kshitish Chandra Purkait v. Santosh Kumar Purkait & Others 1, a 3-Judge Bench of the Hon'ble Apex Court held that:
a. The High Court should be satisfied that the case involved a substantial question of law and not mere question of law. b. The reasons for permitting the plea to be raised should also be recorded. c. It has the duty to formulate the substantial questions of law and to put the opposite party on notice and give a fair and proper opportunity to meet the point.
The Hon'ble Apex Court held that it is the duty cast upon the High Courts to formulate the substantial questions of law involved in the case at the initial stage. The High Court can exercise its jurisdiction under Section 100 of CPC only on the basis of substantial questions of law, which are to be framed at the time of admission of the Second Appeal and the Second Appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. 1 (1997) 5 SCC 438 20 Dr.GRR, J sa_530_2014
15. In Santosh Hazari v. Purushottam Tiwari (Dead) by LRs. [(2001) 3 SCC 179], a 3-Judge Bench of the Hon'ble Apex Court delineated the scope of Section 100 of CPC. The Hon'ble Apex Court observed that:
"An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. It was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court, the word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the Legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words of general importance."
16. In Thiagarajan & Others v. Sri Venugopalaswamy B.Koil & Others2 [], the Hon'ble Apex Court held that:
"The High Court in its jurisdiction under Section 100 of CPC was not justified in interfering with the findings of fact. The Court observed that to say the least the approach of the High Court was 2 (2004) 5 SCC 762 21 Dr.GRR, J sa_530_2014 not proper. It is the obligation of the Courts of law to further the clear intentment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence merely on the ground that another view was possible."
17. The Hon'ble Apex Court in several other cases like Commissioner, Hindu Religious & Charitable Endowments v. P.Shanmugama 3 and in State of Kerala v. Mohd.Kunhi 4, Madhavan Nair v. Bhaskar Pillai 5 reiterated the same principle that the High Court has no jurisdiction in the Second Appeal to interfere with the finding of facts.
18. On a perusal of the questions raised by appellant in the grounds of appeal, this Court does not find any substantial questions of law involved in the same, except a grievance on facts. All the questions raised by the appellant were answered by the courts below.
19. As the plaintiff filed the suit to set aside the compromise decree on the allegation of fraud played by the other parties against his father, both the courts below rightly placed the burden upon the plaintiff to prove the element of fraud played by the other parties against his father. Both the courts below had 3 (2005) 9 SCC 232 4 (2005) 10 SCC 139 5 (2005) 10 SCC 553 22 Dr.GRR, J sa_530_2014 observed that the plaintiff had taken two inconsistent stands one that the signature of his father on the compromise memo was forged and the other stand that the plaintiff's father's signature might have been procured by defendant No.1 taking advantage of his not understanding English and taking advantage of his misplaced trust without explaining the contents of the document and held that the plaintiff was not certain about his own case. At one place, he contended that Mohd.Sharfuddin never signed on the compromise memo and it was forged and at another place contended that by fraud and misrepresentation the signature of Mohd.Sharfuddin might have been obtained and Mohd.Sharfuddin might have signed on the compromise memo without knowing the contents and consequence of it. The stands taken by the plaintiff were contradictory and deviating.
20. Both the courts below observed that if the plaintiff had taken the stand that the document was forged, he ought to have taken steps to get the document sent to forensic expert to examine the genuineness of the signature of his father on the compromise memo, as there was an admitted document marked under Ex.A1 containing the signature of Mohd.Sharfuddin, which was admitted by both the parties and that both the parties also admitted that several sale deeds were executed by their father along with other joint owners, which would be available. But no steps were taken the plaintiff to substantiate his plea of fraud except his self-serving testimony. Both the courts below also observed that the 23 Dr.GRR, J sa_530_2014 compromise decree was passed during the year 1959. Mohd.Sharfuddin was alive till 1965 and during his life time he never questioned the compromise proceedings in O.S.No.593/1 of 1958 and he never objected when Narsimloo Mudiraj alone sold away the plots in terms of compromise. So the terms of compromise were acted upon. Md.Sharfuddin was the right person to question the compromise proceedings, but he never challenged it. Even he never objected when the property was sold by Narsimloo Mudiraj in terms of the compromise in O.S.No.593/1 of 1958. So the person who could challenge the same never raised his voice questioning the compromise decree or the action on the part of the Narsimloo Mudiraj, who sold some of the plots in terms of the compromise.
21. The Courts also observed that the plaintiff who was seeking to set aside the compromise decree was not questioning all the sale deeds executed by Narsimloo Mudiraj, but only questioning about plot No.78-A, which was his case that by mutual understanding plot No.78-A was allotted to his father, but the compromise decree would never indicate the same. The plaintiff was not sure about the extent of plot No.78-A, as such he filed two different suits mentioning two different extents vide O.S.No.1015 of 1987 to an extent of 1281 square yards and O.S.No.1032 of 1988 to an extent of 3136 square yards and not filed any single scrap of paper showing that his father was in possession of the property in plot No.78-A. 24 Dr.GRR, J sa_530_2014
22. Both the Courts below had also observed that the plaintiff had knowledge about O.S.No.593/1 of 1958 since long back and his depositions marked under Exs.B13 to B18 would prove the same and had not filed the suit within the period of limitation as per the Article 59 of the Limitation Act. Both the courts below also observed that the plaintiff was questioning the compromise decree among Mohd.Kareemulla, Mohd.Sharfuddin and Narsimloo Mudiraj passed in O.S.No.593/1 of 1958, but had not added the legal heirs of Mohd.Kareemulla as parties to the proceedings. It was not his case that Mohd.Kareemullah had no family, but he pleaded ignorance about the branch of Mohd.Kareemullah in his evidence. So, the suit in the present form was not maintainable and bad for non-joinder of necessary parties.
23. The other contention raised by the learned counsel for the appellant was that the advocate had not signed on the compromise decree. As per Rule 3 of Order XXIII of the Code of Civil Procedure, introduced by Act No.104 of 1976, the requirement of having a compromise in writing and signed by the parties has been introduced. But, there is no requirement of the presence of the counsel representing the parties. If the parties can prove their identity, there is no requirement of the presence of the counsel as per the provision under Order XXIII Rule 3 of CPC. As such, this Court does not find any merit in the contentions of the learned counsel for the appellant or any substantial questions of law arising from the facts of the present case or any perversity in the 25 Dr.GRR, J sa_530_2014 judgments of the courts below in the appreciation of evidence or coming to the conclusions arrived at. All the citations relied by the learned counsel for the appellant were also raised before the First Appellate Court and were answered by the said Court. Both the Courts below observed that the plaintiff was questioning the compromise decree after a lapse of more than 50 years, though he had knowledge about O.S.No.593/1 of 1958 three years prior to the date of filing of the suit and though he was in possession of the admitted signatures of his father Mohd.Sharfuddin, he never made an attempt to get them compared with the signatures of his father on compromise memo and had not availed the best channel available to him to prove that the compromise memo was forged. As such, he could not claim that the same was vitiated by fraud and null and void.
24. This Court does not find any perversity in the judgments of the courts below to interfere with the same or any substantial questions of law arising out of it.
25. In the result, the Second Appeal is dismissed with costs confirming the judgments of the courts below.
26
Dr.GRR, J sa_530_2014 As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 03.06.2024.
Nsk.