Karnataka High Court

H Muni Reddy vs K N Muniyappa Reddy on 29 May, 2025

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                                                        RFA No. 1762/2012


              HC-KAR

                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 29TH DAY OF MAY, 2025
                                         PRESENT
                       THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                           AND
                       THE HON'BLE MR JUSTICE K. V. ARAVIND
                    REGULAR FIRST APPEAL NO.1762/2012 (DEC)
             BETWEEN:

             H MUNI REDDY
             S/O LATE MUNIVENKATAPPA
             AGED ABOUT 57 YEARS
             R/AT #376, 15TH CROSS
             17TH C MAIN ROAD
             4TH SECTOR, H.S.R. LAYOUT
             BANGALORE - 560 102                               ...APPELLANT

             (BY SRI C.M NAGABHUSHANA, ADVOCATE FOR
                 SRI B RAMESH, ADVOCATE)

             AND:

             1.    K N MUNIYAPPA REDDY
                   S/O LATE HOSA REDDIGARA NANJAPPA
                   AGED ABOUT 64 YEARS
Digitally          R/AT OUT HOUSE CONSTRUCTED
                   AT SY.NO.200/2, KUDLU VILLAGE
signed by
                   BANGALORE - 560 068
ROOPA R U
Location:    2.    SRI. M.PRAKASH REDDY
High Court         S/O K.N.MUNIYAPPA REDDY
of Karnataka       AGED ABOUT 45 YEARS
                   R/AT BUNGALOW CONSTRUCTED
                   AT SY.NO.200/2, KUDLU VILLAGE
                   BANGALORE - 560 068

             3.    SRI.M.SRINIVASA REDDY
                   S/O K.N.MUNIYAPPA REDDY
                   AGED ABOUT 41 YEARS
                   R/AT NO.42/P(3)
                   MUNESHWARA LAYOUT
                   HARALAKUNTE, BANGALORE - 560 068
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                                            NC: 2025:KHC:18408-DB
                                              RFA No. 1762/2012


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4.   SMT.K.M.DHANALAKSHMI
     W/O S.M.SRINIVASA REDDY
     MAJOR
     R/AT NO.5, 8TH CROSS
     1ST MAIN, S.G.PALLYA
     BANGALORE - 560 029                           ...RESPONDENTS

(BY SRI MURUGESH V CHARATI, ADVOCATE FOR R1 (ABSENT);
   SRI SANKET M YENAGI, ADVOCATE FOR R2;
   SRI GANAPATHI C.V., ADVOCATE FOR R3; R4 SERVED)

      THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
30.08.2011 PASSED IN O.S.NO.1103/2009 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-IV, BANGALORE RURAL
DISTRICT, BANGALORE, DECREEING THE SUIT FOR DECLARATION
AND INJUNCTION.

      THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED FOR
JUDGMENT ON 22.03.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, K.S.MUDAGAL. J., DELIVERED THE FOLLOWING:

CORAM:      HON'BLE MRS JUSTICE K.S.MUDAGAL
            AND
            HON'BLE MR JUSTICE K. V. ARAVIND

                       CAV JUDGMENT

(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

This appeal is preferred challenging the judgment and

decree dated 30.08.2011 in O.S.No.1103/2009 passed by the

Fast Track Court-IV, Bengaluru Rural District, Bengaluru.

2. Respondent Nos.2 and 3 are the sons and

respondent No.4 is the daughter-in-law of respondent No.1.

Respondent Nos.2 to 4 were plaintiff Nos.1 to 3 and respondent

No.1 was the sole defendant in O.S.No.1103/2009 before the

Trial Court. Appellant was not a party in the suit.

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3. The facts leading to this appeal are as follows:

The appellant and respondents are blood relatives. Their

admitted pedigree is as follows:

Venkatappa _____________________________________________

Hosa Reddigara Hosa Reddigara Hosa Reddigara Nanjappa Nagappa Muniyappa

Wife 1. Obamma ____________________________

2. Lakshmamma Venkatappa Veerappa

______________________________________________

Muninarasamma Muniyappa Reddy Obala Reddy 3 daughters (Husband: (Resp No.1) (Akkayamma Munivenkatappa) ____________ Jayamma, Rathnamma) Prakash Reddy Srinivasa Reddy (Resp No.2) (Resp No.3) H.Muni Reddy (Adopted son) Muni Reddy (Present Appellant) (K.M.Dhanalakshmi (Given in adoption to W/o Srinivasa Reddy) Muniarasamma and (Resp No.4) Munivenkatappa)

4. Survey No.200/2 measuring 2 acres 14 guntas

originally belonged to one Venkatachala Iyengar. One

Geddekanna Muniya @ Muniyappa purchased the same from

Venkatachala Iyengar under the registered sale deed dated

12.07.1913. He in turn sold the same to Muniarasamma and

Munivenkatappa the sister and brother-in-law of

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K.N.Obalareddy and K.N.Muniyappa Reddy under the registered

sale deed dated 06.05.1932.

5. Property bearing Survey No.129/3 was owned by

Munivenkatappa. As Munivenkatappa and Muniarasamma had

no issues they adopted the appellant under the registered

adoption deed dated 10.05.1965 with the consent of the

biological parents of the appellant. Appellant and his biological

father/K.N.Obala Reddy claimed that Munivenkatappa

bequeathed 1 acres 14 guntas in Survey Nos.200/2 and 9 and

half guntas in Sy.No.129/3 along with other properties in

favour of the appellant and the balance extent of 1 acre in

Sy.No.200/2 in favour of respondent No.1 under the registered

Will dated 19.07.1972.

6. It was contended that during the lifetime of

Munivenkatappa, respondent No.1 forged his statement and got

his name entered to the properties bequeathed under the Will

dated 19.07.1972. Munivenkatappa challenged those revenue

entries in R.A.No.70/93-94 before the Assistant Commissioner.

The said appeal was allowed on 22.08.1984. Further under the

registered deed dated 14.07.1993 Munivenkatappa revoked the

bequeath made by him in favour of the present respondent

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under the Will dated 19.07.1972 and bequeathed the entire 2

acres 14 guntas in Sy.No.200/2 in favour of the appellant.

7. On 25.06.1994, respondent No.1 filed

O.S.No.3582/1994 against K.N.Obala Reddy and his brother in

law Munivenkatappa before the City Civil Court, Bengaluru

Rural District, Bengaluru for partition and separate possession

of his alleged share in the plaint schedule 'A' to 'D' properties

namely land bearing Survey No.200/2, Sy.No.129/3 and Sy.No.

3 which are stated above. The said suit was transferred to the

Court of Principal Civil Judge (Senior Division), Bangalore Rural

District, Bangalore renumbered as O.S.No.214/1994.

8. Further respondent No.1 filed O.S.No.329/1996

against the present appellant and K.N.Obala Reddy seeking

declaration that the Will dated 14.07.1993 executed by

Munivenkatappa in favour of present appellant is null and void.

Subject matter of the said suits were again land bearing Survey

No.200/2 measuring 1 acre, Survey No.129/3 measuring 4 ¾

guntas, Survey No.3 measuring 23 guntas and site bearing

Khaneshmari No.51, Khata No.135.

9. Those two suits were contested by the present

appellant and K.N.Obala Reddy. Pending the said suit

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Munivenkatappa died. His LRs were not brought on record. In

O.S.No.214/1994, respondent No.1 contended that those

properties were ancestral joint family properties and he has

share in them, whereas defendants therein denied the same

and contended that already partition was effected in 1972 and

those properties belonged to Munivenkatappa and his wife

Muniarasamma. As they were issueless they adopted the

present appellant. It was further contended that

Munivenkatappa has executed registered Will dated 24.07.1972

in favour of the present appellant and respondent No.1

bequeathing those properties.

10. The Principal Civil Judge (Senior Division),

Bengaluru Rural District, Bengaluru consolidated

O.S.No.214/1994 and O.S.No.329/1996 and recorded common

evidence in those cases. The said Court on hearing the parties

on 19.01.2000 dismissed those suits of the present respondent

No.1. In those cases the Court held that land bearing Survey

No.200/2 measuring 2 acres 14 guntas originally belonged to

one Venkatachala Iyenger. Geddekanna Muniya @ Muniyappa

purchased the said properties under registered sale deed dated

12.07.1913. He inturn sold the said lands to Munivenkatappa

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and Muniarasamma under registered sale deed dated

06.05.1932. Though the sale deed was in their favour, khata of

the properties stood in the name of Nanjappa Reddy, biological

father of K.N.Obala Reddy and respondent No.1. After death of

Nanjappa Reddy, khata continued in the name of K.N.Obala

Reddy. But owner Munivenkatappa was in possession and

enjoyment of the properties by paying taxes. The Court also

accepted the contention that the land bearing Survey No.129/3

was exclusive property of Munivenkatappa. Munivenkatappa

and his wife Muniarasamma had adopted the present appellant

under registered adoption deed dated 10.05.1965. The Court

also accepted the contention of the defendant in the aforesaid

suit that Munivenkatappa was absolute owner of Survey

No.200/2 measuring 2 acres 14 guntas and Survey No.129/3

measuring 9 ½ guntas. He executed registered Will dated

24.07.1972 bequeathing 1 acre 14 guntas in Survey No.200/2,

9 ½ guntas in Survey No.129/3 along with other properties in

favour of the present appellant and bequeathing 1 acre in

Survey No.200/2 in favour of respondent No.1.

11. The Court also accepted the contention that

respondent No.1 on the basis of forged statement allegedly

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given by Munivenkatappa, got his name entered in Survey

No.200/2, therefore Munivenkatappa was forced to file

R.A.No.70/1993 before Assistant Commissioner, Bengaluru

Sub-Division for cancellation of the said khata and ultimately

succeeded in that. Further having regard to such conduct of

respondent No.1, Munivenkatappa under the registered

document dated 14.07.1993 revoked the Will made in favour of

respondent No.1 and bequeathed that property also to the

present appellant. The Court also accepted the contention of

the defendants therein that the suit was barred by limitation.

12. Challenging the said judgment and decree,

respondent No.1 preferred R.F.A.No.408/2000 and

R.F.A.No.370/2000. This Court on hearing the parties in those

appeals by judgment dated 06.04.2009 dismissed those

appeals on merits.

13. Such being the things, respondent Nos.1 to 4

suppressing the proceedings in O.S.No.214/1994 and

O.S.No.329/1996 purportedly entered into a partition under

registered partition deed dated 04.08.2003 including the

properties which were the subject matter of the said suits.

Based on such partition deed, respondent Nos.2 to 4 filed

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O.S.No.1103/2009 against respondent No.1 on 03.09.2009

seeking declaration of their title under registered partition deed

dated 04.08.2003 and for permanent injunction. In those

proceedings, neither respondent No.1 nor respondent Nos.2 to

4 disclosed the earlier proceedings in O.S.No.214/1994 and

O.S.No.329/1996 and pendency of R.F.A.No.408/2000 and

R.F.A.No.370/2000. The said appeals came to be dismissed on

06.04.2009. But still respondent Nos.1 to 4 proceeded in

O.S.No.1103/2009. In those proceedings respondent No.1

admitted the alleged partition deed dated 04.08.2003. But the

only contention of respondent No.1 was that respondent Nos.2

to 4 have obtained said partition deed under mistake and that

does not bind him. The suit came to be decreed on 30.08.2011.

14. Subject matter of the suit were set out in schedule

A to D of the plaint. Out of the said properties, this appeal is

concerned with land bearing Survey No.200/2 measuring 1 acre

14 guntas which was plaint schedule A item No.2 property,

Survey No.129/3 measuring 9 ½ guntas which was plaint

schedule A item No.3 property. Respondent Nos.2 to 4 did not

even implead the appellant as party in O.S.No.1103/2009

though he had interest in the aforesaid properties. Therefore,

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challenging the judgment and decree in O.S.No.1103/2009,

appellant has preferred the above appeal. It is also material to

note that against the judgment and decree in

O.S.No.1103/2009, respondent No.1 herein preferred

R.F.A.No.1986/2011 which came to be dismissed on

23.11.2011.

15. Sri C.M.Nagabhushana, learned Counsel for the

appellant submitted that respondent Nos.1 to 4 in collusion

with each other to subvert the judgment and decree in

O.S.No.214/1994 connected with O.S.No.329/1996 have

played apparent fraud on the Courts in securing the judgment

in O.S.No.1103/2009 and R.F.A.No.1986/2011 which is nothing

short of contempt of Court and glaring abuse of the process of

the Court. Therefore same shall be seriously dealt with. He

submits that fraud vitiates everything and if fraud is found, the

Court can set aside its opinion and order in appeal.

16. In support of his submissions, he relies on the

following judgments:

(i) S.P.Chengalvaraya Naidu v. Jagannath1

(ii) State of A.P. v. T.Suryachandra Rao2

(1994) 1 SCC 1

(2005) 6 SCC 149

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(iii) Hamza Haji v. State of Kerala3

(iv) Yashoda v. Sukhwinder Singh4

17. To bring all those facts on record, the appellant has

filed I.A.No.4/2012 to produce the following documents:

1. Certified copy of the plaint in O.S.No.214/1994

2. Certified copy of the written statement in

3. Certified copy of the plaint in O.S.No.329/1996

4. Certified copy of the written statement in

5. Certified copy of the judgment passed in O.S.No.214/1994 C/w O.S.No.329/1996

6. Certified copy of the decrees in O.S.No.214/1994

7. Copy of the judgment passed in R.F.A.No.408/2000

8. Certified copy of the vakalat in SC/ST/(A) No.15/2011-12 before the Assistant Commissioner, Bangalore South Division on behalf of 1st respondent.

9. Certified copy of the appeal filed in SC/ST/A:No.34/2012-13 before Deputy Commissioner.

10. Certified copy of the partition deed dated 04.08.2003

(2006) 7 SCC 416

(2022) 17 SCC 307

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18. Sri Sanket M.Yenagi, learned Counsel for

respondent No.2 and Sri Ganapathi C.V, learned Counsel for

respondent No.3, more particularly learned Counsel for

respondent No.2 though did not dispute the earlier proceedings

in O.S.No.214/1994 and O.S.No.329/1996 and the appeals

arising out of the same submitted that the judgment in

O.S.No.1103/2009 has attained finality by virtue of the

judgment in R.F.A.No.1986/2011. He submits that the

judgment of the coordinate Bench cannot be nullified and

judicial discipline has to be maintained. In support of his

submission, he relies on the following judgments:

(i) Mary Pushpam v. Telvi Curusumary & Ors.5

(ii) A.C.Ananthaswamy v. Boraiah6

19. Sri Murugesh V.Charati, learned Counsel for

respondent No.1 did not turn up to address arguments.

However, respondent No.1 has filed I.A.No.1/2015 seeking to

produce the following documents as additional evidence:

1. Sale deed dated 16.08.1909

2. Khethavar Pallirike-No.15 dated 29.11.1927

3. Palupatti in the year 1939-40

4. Partition deed dated 18.07.1972

(2024) 1 SCR 11

(2004) 8 SCC 588

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5. Partition deed dated 19.07.1972

6. Partition deed dated 04.08.2003

7. Survey Hissa Dhakle Sy.No-200, 200/1 and 200/2

8. Akarband Sy.No-200/1 and 200/2

9. Atlas Sy.No.200/1 and 200/2

10. RTC in respect of Sy.No-200, 200/1 and 200/2 for the year 1961-62.

11. RTC in respect of Sy.No-200, 200/1 and 200/2 for the year 1965-66.

12. RTC in respect of Sy.No-200, 200/1 and 200/2 for the year 1966-67.

13. RTC in respect of Sy.No-200, 200/1 and 200/2 for the year 1967-68.

14. RTC in respect of Sy.No-200/2 for the year 1969-70 to 1983-84 and 1994-95 to 2009

15. RTC in respect of Sy.No-129/3 and 129/4 for the year 1961-62, 1965-66 to 1993-94

16. Certified copy of the compromise petition filed in

17. Certified copy of the written statement and affidavit filed by the defendant No-1, 3 and 4 in

18. Certified copy of the written statement and affidavit filed by the defendant No-2 in O.S.No.3691/2009

19. Examination in chief and deposition deposed in O.S.No.1103/2009.

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20. RTC in respect of Sy.No.129/3 for the year 1969-

70.

20. On considering the submissions of both side and on

examining the material on record the questions that arise for

consideration are:

(i) Whether I.A.No.4/2012 filed by the appellant

under Order XLI Rule 27 of CPC deserves to be

allowed?

(ii) Whether I.A.No.1/2015 filed by respondent No.1

under Order XLI Rule 27 of CPC deserves to be

allowed?

(iii) Whether impugned judgment and decree is

sustainable in law?

Analysis

21. The relationship between the parties and the

proceedings and judgment in O.S.No.214/1994 C/w

O.S.No.329/1996 and R.F.A.No.408/2000 C/w

R.F.A.No.370/2000, O.S.No.1103/2009 & R.F.A.No.1986/2011

are not in dispute. Appellant has filed I.A.No.4/2012 to produce

the pleadings, judgment and decree in those cases and appeal

memo and copy of vakalat filed on behalf of respondent No.1 in

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SC & ST (A.No.15/2011-12) and copy of the partition deed

dated 04.08.2003.

22. All the above said documents are admitted

documents. Further as the proceedings in O.S.No.214/1994 c/w

O.S.No.329/1996 and the appeal arising out of the same are

the judgments between the parties and they are not disputed,

they are relevant and admissible. In view of Section 57 of the

Indian Evidence Act, 1872, the Court can take judicial notice of

the judgments in O.S.No.214/1994 c/w O.S.No.329/1996,

R.F.A.No.408/2000 and R.F.A.No.370/2000. Therefore, Section

56 of the Evidence Act dispenses with the proof of those

documents. Since those documents are admitted documents,

Section 58 of the Evidence Act,1872 dispenses with proof of the

same. Even the proceedings in K.SC.ST.(A) 15/2011-12 and

the partition deed dated 04.08.2003 are also admitted.

Therefore, even those documents can be looked into. Thus,

I.A.No.4/2012 is allowed.

23. Under I.A.No.1/2015 the documents produced and

marked as Ex.P1 to Ex.P61 in O.S.No.1103/2009 are sought to

be produced. However, the contentions raised based on the

very same partition deed dated 19.07.1972 and sale deed were

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rejected by the Court in O.S.No.214/1994 c/w

O.S.No.329/1996 and the appeals arising out of the said

judgment and decree. Therefore those documents can have no

bearing in the present appeal. Therefore, I.A.No.1/2015 is

rejected.

24. Admittedly, in the partition deed dated 04.08.2003,

the subject matter of the decree in O.S.No.214/1994 C/w

O.S.No.329/1996 were included suppressing the said judgment

and decree and the pendency of R.F.A.No.408/2000 and

R.F.A.No.370/2000. It is also material to note that though

present respondent Nos.2 to 4 were not the parties in

O.S.No.214/1994 c/w O.S.No.329/1996, present respondent

No.3 M.Srinivasa Reddy tendered evidence in those suits as

Power of Attorney holder of his father/respondent No.1 and he

was examined in those cases as PW.1. But still the records

show that none of them whispered about the earlier

proceedings in O.S.No.214/1994 c/w O.S.No.329/1996 and the

appeals arising out of the said suits and suppressing the said

fact proceeded further in O.S.No.1103/2009. Since the partition

deed dated 04.08.2003 was registered one and was not

seriously contested, except alleging that the document was

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executed under mistake, O.S.No.1103/2009 came to be

decreed on 30.08.2011. Respondent No.1 preferred

R.F.A.No.1986/2011 before this Court against the judgment

and decree in O.S.No.1103/2009 pending before Fast Track

Court-IV, Bengaluru Rural District, Bengaluru. Even before this

Court in R.F.A.No.1986/2011 the earlier proceedings were

suppressed. This Court at the admission stage itself by

judgment and order dated 06.08.2012 dismissed

R.F.A.No.1986/2011.

25. This Court while answering the contention of

respondent No.1 herein, who was the appellant in

R.F.A.No.408/2000 and R.F.A.No.370/2000, in para 9 of the

said judgment with regard to Survey No.200/2 rejected the

contention that same was still joint family property and that

still he was entitled to 10 guntas in the land. Similarly in paras

10 & 11 of the said judgment his contention with regard to

Survey No.129/3 and Survey No.3 being joint family properties

and his claim for share in those properties were rejected.

26. In para 12 of the judgment, it was held that land

bearing Survey No.200/2 measuring 2 acres 14 guntas

belonged to Munivenkatappa and his wife Muniarasamma and

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upheld the contention that the present appellant was adopted

son of Munivenkatappa and Muniarasamma and except 1 acre

of land in Survey No.200/2, rest of the properties were

bequeathed in favour of the present appellant. It was further

held that Munivenkatappa was the absolute owner of the

properties and the present appellant acquired title to those

properties being an adopted son and by virtue of bequest made

by Munivenkatappa. Despite those findings attaining finality,

suppressing the said proceedings and pending those

proceedings, without leave of the Court, respondent Nos.1 to 4

entered into registered partition deed dated 04.08.2003.

Further based on such document, suppressing the earlier

judgments in O.S.No.214/1994 c/w O.S.No.329/1996,

respondent No.1 to 4 in collusion with each other have played

fraud on the Court in obtaining judgment in O.S.No.1103/2009

and R.F.A.No.1986/2011.

27. It is painful that apart from the parties, even the

Counsel who represents respondent No.2 in the present case

conducted the case in an unprofessional manner. He himself

representing present respondent Nos.2 to 4 as plaintiffs has

filed O.S.No.1103/2009 against respondent No.1 (defendant).

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But pending the said suit he filed vakalat for the present

respondent No.1 (who was his adversary in O.S.No.1103/2009)

in the proceedings before the Assistant Commissioner, South

Sub Division, Bangalore in K.SC/ST/(P)(A).No.15/2011-12 and

filed appeal on his behalf. Again in R.F.A.No.1986/2011 he

represents present respondent Nos.2 to 4 who were the

adversaries of the present respondent No.1 in the said appeal

which is totally unethical.

28. The present appeal is preferred mainly on the

ground that the proceedings in O.S.No.1103/2009 were

collusive one to subvert the judgments in O.S.No.214/1994 c/w

O.S.No.329/1996 and the appeals arising out of the same.

Consequently, the proceedings in O.S.No.1103/2009 and the

appeal arising out of the same i.e. R.F.A.No.1986/2011 were

fraudulent one and those judgments were obtained by playing

fraud on the Court. Thus they are liable to be set aside.

29. To explore how fraud was played on the Court, it is

necessary to look into the dates and events narrated below in

the tabular form:

25.06.1994 Filing of OS No.214/1994 (Original OS No.3582/1994) 18.04.1996 Filing of OS No.329/1996 19.01.2000 DD of OS No.214/1994 C/w OS No.329/1996

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22.05.2000 Filing of RFA No.370/2000 23.05.2000 Filing of RFA No.408/2000 04.08.2003 Registered Partition Deed 06.04.2009 DD of RFA Nos.408/2000 & 370/2000 03.09.2009 Filing of OS No.1103/2009- Declaration of title under partition deed dated 04.08.2003 and Permanent Injunction 30.08.2011 DD of O.S No.1103/2009 23.11.2011 Filing of RFA No.1986/2011 (Against OS No.1103/2009) 06.08.2012 DD of RFA No.1986/2011 - dismissal 11.10.2012 RFA No.1762/2012 (Present appeal filed) 11.10.2012 IA 4/2012 by appellant under order 41 Rule 27 04.03.2015 IA 1/2015 under Order 41 Rule 27- by respondent No.1- relevancy of documents not stated on affidavit

30. The above discussed evidence shows that

respondent Nos.1 to 4 have no scope at all to say that they

were not aware of the proceedings in O.S.No.214/1994 c/w

O.S.No.326/1996 and the appeals arising out of the same,

since present respondent No.3 deposed before the trial Court

as Power of Attorney Holder of present respondent No.1 in

those proceedings. Thus the judgment in O.S.No.1103/2009

and R.F.A.No.1986/2011 were outcome of the fraud played by

respondent Nos.1 to 4 and their Counsel on the trial Court as

well as this Court for the purpose of subverting the earlier

judgments of the competent Court in O.S.No.214/1994 c/w

O.S.No.326/1996 and the appeals arising out of the same.

Thereby they have attempted to interfere with the course of

justice which is nothing short of criminal contempt of Court as

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per Section 2(c)(ii)(iii) of the Contempt of Courts Act, 1971 and

clear abuse of process of the Court. Such acts of unscrupulous

litigants and others involved should be dealt with firm hands,

otherwise the same pollutes the judicial dispensation system.

31. The judgment in Mary Pushpam's case referred to

supra was relied by learned Counsel for respondent No.2 to

contend that, when a decision of a Coordinate Bench of the

same High Court is brought to the notice of the bench, it is to

be respected and is binding, subject to right of the bench of

such co-equal quorum to take a different view and refer the

question to a larger bench. In saying so learned Counsel for

respondent No.2 wants to adopt double standard, one for

himself and another for the appellant. Respondent Nos.1 to 4

and their counsel were aware of the judgment dated

06.04.2009 in R.F.A.No.408/2000 and R.F.A.No.370/2000. But

they do not say why this enlightenment of judicial discipline did

not strike them while filing and inviting the judgment in

O.S.No.1103/2009 suppressing the judgment in

O.S.No.214/1994 c/w O.S.No.329/1996 and the pendency of

the appeals against the said judgment. There is no explanation

as to why they suppressed in R.F.A.No.1986/2011 about the

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judgment dated 06.04.2009 in RFA Nos.370 and 408 of 2000.

They did not follow the said judicial discipline while conducting

RFA No.1986/2011. One who seeks fairness and equity should

be fair and equitable to his adversaries also. Moreover the

Hon'ble Supreme Court in para 25 of its judgment in Yashoda's

case referred to supra referring to several other judgments

held as follows:

"25. Again in the case of A.V. Papayya Sastry and Others v. State of A.P. and Others (2007) 4 SCC 221 , this Court observed thus:

"21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:

"Fraud avoids all judicial acts, ecclesiastical or temporal."

22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order--by the first court or by the final court--has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.

23. In the leading case of Lazarus Estates Ltd. v. Beasley [(1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502 (CA)] Lord Denning observed : (All ER p. 345 C) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud."

24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was "mistaken", it might be shown that it was "misled". There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an

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action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of "finality of litigation" cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants."

(Emphasis supplied)

32. Reading of the above paragraph shows that the

judgment/decree/order obtained by fraud from the first Court

or final Court has to be treated as nullity by any Court superior

or inferior leave alone the coordinate bench. The said judgment

is aptly applicable to the facts of the present case. Therefore

the contention that in view of judgment in R.F.A.No.1986/2011

this appeal cannot be considered is unsustainable.

33. In all other judgments relied on by learned Counsel

for the appellant it was held that fraud vitiates even a solemn

act, fraud and justice neither dwell together. It was further held

that the act of fraud on Court is always viewed seriously. In

this case also, the proceedings in O.S.No.1103/2009 and

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R.F.A.No.1986/2011 are the trickery played on the Court by

respondent Nos.1 to 4 suppressing the material facts and

playing fraud on the Court to overreach or subvert the

judgments in O.S.No.214/1994 c/w O.S.No.329/1996 and

R.F.A.No.408/2000 and R.F.A.No.370/2000. In view of the

aforesaid facts, circumstances and legal position, the judgment

in O.S.No.1103/2009 and consequential proceedings in

R.F.A.No.1986/2011 have no legs to stand.

34. Further this Court by order dated 05.02.2018 on

hearing both side has granted leave to the appellant to prefer

this appeal. Respondents have not challenged the said order

and that has attained finality. On that ground also the

contention that allowing this appeal is not permitted in view of

the judgment in R.F.A.No.1986/2011 deserves no merit.

Hence, the judgments in O.S.No.1103/2009 are obtained by

playing fraud even in the Courts. Once if it is held that the

judgment in O.S.No.1103/2009 is null, the judgment in

R.F.A.No.1986/2011 does not sustain. By such unscrupulous

acts, respondent Nos.1 to 4 have dragged the appellant to the

Courts for over 31 years. Therefore, the case warrants

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imposition of heavy costs and stringent action to bring such

unscrupulous litigants to book. Hence the following:

ORDER

I.A.No.4/2012 is allowed.

I.A.No.1/2015 is rejected.

The appeal is allowed on payment of costs of

Rs.1,00,000/- payable by respondent Nos.1 to 4 to the

appellant within four weeks from the date of receipt of copy of

this judgment.

The impugned judgment and decree in O.S.No.1103/2009

passed by the Fast Track Court-IV, Bengaluru Rural District,

Bengaluru and the judgment in R.F.A.No.1986/2011 are hereby

declared as null and void and consequently set aside.

The suit in O.S.No.1103/2009 is dismissed with costs.

Place this matter before Hon'ble the Chief Justice for

initiating contempt proceedings against respondents.