High Court · 2012

Heard Mr. H. Das, learned counsel for the appellant and Mr. D.A. Kaiyum, learned counsel appearing for the respondent No.1. The plaintiff in Title Suit No.21/2004 has preferred this appeal against the judgment and decree dated 23.12.2009 passed by the learned Civil Judge, Goa lpara, in Title Appeal No.14/2008 dismissing the appeal preferred by the present appellant and affirming the judgment and decree dated 20.12.2007 passed by the learned Munsiff No.1, Goalpara, in Title Suit No.21/2004, whereby and whereunder the suit of the plaintiff has been dismissed. The present appellant as plaintiff instituted the Title Suit No.21/2004 claiming the decree declaring his right, title and interest over the suit land, for confirmation of possession and also for declaring that the decree passed in Title Suit No.55/1997 is null and void being obtained fraudulently and also for permanent injunction, contending inter alia that the proforma defendant No.2, wh o was the owner and possessor of the suit land transferred the same to the plain tiff/appellant by a registered deed of sale No.217 dated 01.03.1997 (Ext.-1) for valuable consideration of Rs.5,000/- and handed over the possession, by virtue of which he has acquired the right, title and interest. It has also been contend ed that the defendant No.1/ respondent No.1 obtained a decree in the suit being Title Suit No.55/1997 instituted by him against the present appellant/plaintiff as well as the present proforma defendant for specific performance of contract b y playing fraud. The defendant No.1 on receipt of summons entered appearance and conteste d the suit by filing written statement contending inter alia that the suit is no t maintainable being barred by the law of resjudicata and that the sale deed dat ed 01.03.1997(Ext.-1) was executed in favour of the appellant/plaintiff fraudule ntly and in collusion with the proforma defendant No.2 just to defeat his right created by the agreement of sale. The allegation of commission of fraud in obtai ning the decree in Title Suit No.55/1997 contending that in the said suit the pr esent appellant was the defendant No.1, who contested the suit and even filed th e Title Appeal as well as the second appeal, which were dismissed. The defendant No.1/respondent No.1 has also filed the counter claim for declaring that the sa le deed dated 01.03.1997(Ext.-1) is void, inoperative having obtained by fraud. The learned Trial Court on the basis of the pleadings of the parties fra med the following issues for consideration and decision:- Whether the suit is barred by law of resjudicata? 1. Whether the suit is barred by Law of Limitation? 2. Whether the plaintiff is the bonafide purchaser of the suit land? 3. Whether the plaintiff has right, title, interest and possession over the 4. suit land? Whether the plaintiff is entitled to the relief(s) as prayed for? Whether the decree of T.S. 55/97 is binding upon the plaintiff and profo Whether the sale deed No.217 dtd. 01.03.1997 is fraudulent, void ab init

5. Issues on counter claim 1. rma defendant No.2? 2. io and inoperative in law? 3. Whether the defendant is entitled to any relief(s) as prayed for? The learned Trial Court upon appreciation of the evidences on record has dismissed the suit of the plaintiff by holding that in view of the decree passe d in Title Suit No.55/1997 for specific performance of the contract, the plainti ff cannot acquire any right, title and interest on the basis of the sale deed da ted 01.0301997 (Ext.-1), the same having obtained and executed after the agreeme nt of sale executed by the proforma defendant No.2 in favour of the plaintiff in Title Suit No.55/1997, who is the defendant No.1 in the present suit and the pl ea taken by the present appellant relating to the sale deed was not accepted by the learned Court below in the said suit. The learned Trial Court further held t hat the burden to prove that the decree obtained in Title Suit No.55/1997 was ob tained by playing fraud being on the plaintiff/appellant, he could not discharge the burden in that regard. Being aggrieved, the present appellant preferred Title Appeal No.14/2008 in the Court of the learned Civil Judge, Goalpara, which has also been dismisse d by the First Appellate, as noticed above and hence the present appeal. It has been contended by Mr. Das, learned counsel for the appellant that the plea taken in the written statement filed in Title Suit No.55/1997 that the proforma defendant No.2 had already executed the sale deed dated 01.03.1997 (Ex t.-1) having not been considered by any of the Courts i.e. the learned Trial Cou rt in Title Suit No.55/1997, the First Appellate Court as well as the second app ellate Court where the appeals were preferred against the decree passed in the s aid suit, it amounts to fraud in obtaining the decree passed in Title Suit No.55 /1997. It is not in dispute that the present appellate was one of the defendant s in Title Suit No.55/1997, who contested the suit by filing written statement. The said suit for specific performance of the contract was decreed by the learne d Trial Court against which though the appellant preferred Title Appeal before t he learned First Appellate Court and the second appeal before the High Court, wh ich were also dismissed by affirming the judgment and decree passed in Title Sui t No.55/1997. The plea taken by the appellant in the said suit relating to execu tion of the sale deed dated 01.03.1997 did not find favour with any of the afore said Courts. The appellant having contested the suit by filing written statement and having unsuccessfully preferred the appeals cannot be allowed to plead that the decree passed in the earlier suit is fraudulent on the ground that the plea taken in the said suit was not considered. Admittedly the agreement of sale bet ween the proforma defendant No.2 and the present respondent No.1 was prior in ti me than the sale deed dated 01.03.1997 (Ext.-1). In view of the decree passed in Title Suit No.55/1997, the plaintiff/appellant cannot, therefore, have the righ t, title and interest over the suit property by virtue of the subsequent sale de ed dated 01.03.1997. Both the learned Courts below have also found that the plai ntiff/appellant could not discharge his burden of demonstrating that the decree in Title Suit No.55/1997 was obtained by playing fraud. Nothing could be placed before this Court to demonstrate that such finding is perverse. In view of the above, I do not find involvement of any substantial quest ion of law in the present appeal and hence the same is dismissed. No cost.