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),
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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?
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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?
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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
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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
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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:
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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:
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[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.
(1997) 5 SCC 438
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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
(2004) 5 SCC 762
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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
(2005) 9 SCC 232
(2005) 10 SCC 139
(2005) 10 SCC 553
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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
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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.
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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
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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.
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As a sequel, miscellaneous applications pending in this appeal, if any
shall stand closed.
_____________________
Dr. G. RADHA RANI, J
Date: 03.06.2024.
Nsk.
