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1. : ® IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE4H DAY OF JUNE2021BEFORE THE HON’BLE MR.JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.67072/2011 (GM-CPC) BETWEEN SMT. PADMAVATI W/O SRINIVASRAO KULKARNI, AGE:
76. YEARS, OCC: HOUSEWIFE AND AGRICULTURE, R/O HOOLAGERI, TQ. KUSTAGI, DIST. KOPPAL NOW R/AT C/O DR. SHRIKANT S. KULKARNI, SHIVMINAKSHI NILAY, NEAR KARIYAMMA TEMPLE, YALAKKISHETTAR COLONY, VIDYAGIRI, DHARWAD. SINCE DECEASED BY HER LRS. 1(A) SMT.MANJUSHREE W/O SHRIDHAR PATIL AGE:
55. YEARS, R/O HOUSE NO.374, S.S.CHOUDARI WADA, KARNIK ROAD, SOLAPUR413006 1(B) DR.SHRIKANT S/O SRINIVASRAO KULKARNI AGE:
53. YEARS, R/O SHIVAMEENAKSHI NILAY NEAR KARIYAMMA TEMPLE YALAKKI SHETTAR COLONY, VIDYAGIRI, DHARWAD580004 1(C) SMT.ANJANA W/O ARVIND PUJAR, AGE:
50. YEARS, R/O NO.12, RAILWAY LINE, SOLAPUR NORTH, SOLAPUR413001 :
2. :
1. D) DATTATRAYA S/O SRINIVASRAO KULKARNI AGE:
42. YEARS, R/O HOUSE NO.1513-2 HEGGENAHALLI MAIN ROAD, GAJANANANAGAR, NILAGIRITOPU BANGALORE560091 …PETITIONERS (BY SRI.K L PATIL AND SRI.S S BETURMATH, ADVOCATES) AND1 TIRUMALARAO S/O SANJEEVRAO KULKARNI, AGE:
42. YEARS, OCC: AGRICULTURE, R/O HOOLAGERI, TQ. KUSTAGI, DIST. KOPPAL2 MURALIDHAR S/O SRINIVASRAO KULKARNI, AGE:
42. YEARS, R/O HOOLAGERI, TQ. KUSTAGI, DIST. KOPPAL.
3. SMT.SAVITA W/O SURESHRAO KULKARNI, AGE:
52. YEARS, 4. SHRUTI D/O SURESHRAO KULKARNI AGE:
26. YEARS, 5. CHAITRA D/O SURESHRAO KULKARNI, AGE:
24. YEARS, 6. CHETAN S/O SURESHRAO KULKARNI, AGE:
20. YEARS, ALL ARE R/O C/O S.MOHAN HOUSE NO.148A, 2ND BLOCK29H CROSS, RAJAJINAGAR, BANGALORE560010 …RESPONDENTS (R1, R2 AND PROPOSED R3 TO R6 ARE SERVED, UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED COMPROMISE DECREE DATED:27/09/2010 IN O.S. NO.243 OF2010ON THE FILE OF CIVIL JUDGE AND JMFC, KUSHTAGI VIDE ANNEXURE- F. :
3. : THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP ALONG WITH I.A.NO.4/2018, THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER
This petition lays a challenge to the compromise decree dated 27.09.2010 entered in O.S.No.243 of 2010 in terms of compromise petition presented before the Lok-Adalath; the challenge is founded on the ground of fraud, fabrication & duplicity. Despite service of notice, the first respondent/plaintiff and the second respondent/defendant to the subject suit have chosen to remain unrepresented; however that will not relieve this Court from the duty of deciding the cause in accordance with law.
2. Brief facts: i) The first respondent-Shri. Tirumalrao Kulkarni had filed a civil suit in O.S. No.243 of 2010 against the second respondent- Shri. Muralidhar Kulkarni; it is for a decree of declaration of title to the agricultural land admeasuring 08 A–16 G of Hulagera village in Kushtagi Taluka; in the Trial Court the respondent/defendant entered appearance after service of :
4. : notice; both the plaintiff and the sole defendant entered into a compromise and got the impugned Decree in terms thereof. ii) Petitioner, who happens to be mother of the second respondent herein, after coming to know of mutation of entries in respect of the suit land in favour of the first respondent herein in terms of the decree, is putting the decree in challenge on the ground that fraudulently she was kept out of knowledge & suit fray; both the respondents have remained unrepresented though Court notice is duly served on them.
3. During the pendency of this petition, original petitioner Smt. Padmavati breathed her last and therefore, the application in I.A. No.4 of 2018 has been moved seeking impleadment of her daughter-in-law (son having pre-deceased her), grandchildren and other sons; two more applications are moved for setting aside abatement and for condoning the delay in filing the L.R. application; there is no reason to doubt the version emerging from a collective reading of all these applications that are supported by the affidavits; therefore, all the applications are favoured and L.Rs. of the deceased :
5. : petitioner are permitted to come on record to represent her estate.
4. Having heard the learned counsel for the L.Rs. of the deceased petitioner and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: (a) The first respondent had filed the suit for declaration of title in respect of a huge agricultural land admeasuring 08A– 16G; the records reveal that the petitioner became one of the owners of this land along with her sons on the demise of her husband; the entries in the Revenue Records came to be mutated on 12.11.2003 loading only her name; however, she was only one of the L.Rs. of the deceased husband and these L.Rs. are now on record; it is pertinent to mention that the second respondent herein being one of her sons is also an L.R; petitioner was a traditional widow in the late evening of her life when she knocked at the doors of Writ Court. (b) The subject suit has been filed on 22.09.2010; the suit was valued at Rs.1,000/- & a court fee of Rs.25/- was paid; the :
6. : Trial Court issued summons on 24.09.2010; the suit was got advanced to 27.09.2010 by moving the application; matter was mindlessly referred to Lok Adalath on a Joint Memo filed by the respondents No.1 and 2 herein on the same day; strangely, in no time, a compromise petition under XXIII Rule 3 of Civil Procedure Code, 1908, was moved before the Lok Adalath and stunningly, the suit culminated into the impugned decree on the very day i.e. 27.09.2010; the things moved with the rocket-speed as if the heavens were falling down. (c) In the plaint of the first respondent, at Annexure-C, it is specifically admitted by him (at para
1) that the petitioner herein Smt.Padmavathi was owner of the subject land; it is also averred that her whereabouts were not known for about eight years or so and therefore, he doubts she being alive; the second respondent herein who happens to be one of several sons of the petitioner herein has supported the case of first respondent; he does not whisper about there being other co-owners namely his own brothers and the widow & children of a pre-deceased brother, though all they are necessary parties to this title suit arguably having interest in :
7. : the suit land; mindlessly, the learned Judge of the Court below has directed issuance of notice, then has advanced the suit immediately and at once referred it for settlement before the Lok Adalath and that the suit is instantaneously decreed in terms of compromise; all this can happen only in “Alice in Wonderland”; fact is stranger than the fiction. (d) The paragraphs 1 & 2 of the plaint on which the relief sought for is founded read as under: “1. ªÁ¢AiÀÄÄ PÀĵÀÖV vÁ®ÆQ£ Àº£ÀªÀ ÀĸÁUgÀ ÀºÉÆç½AiÀÄ ºÀÆ®UÃÉj UÁªæ ÀÄz À ¹ÃªÀiÁz°À è§gÀĪ ÀzÁªÁ d«Ää£ À¸ªÀ ðÉ £AÀ.113/2 »¸Áì C PÉëÃv Àæ8 JPgÀ É 16 UÀÄAm É d«Ää£ À ªÀiÁ°ÃP£ÀÀÄ ªÀÄvÀÄÛ P¨À ÁÓzÁg£ÀÀÄ JAzÀÄ ¸ÀĪÀiÁgÀÄ 25 ªµÀ ðÀU¼À À »Az É AiÀiÁg À vAÀm É vPÀgÀÁgÀÄ E®èzÃÉ ªÁ¢AiÀÄ vAÀz É fêAÀv À PÁ®¢Az®À Æ ±Á±ÀévªÀ ÁV C£ÀĨÉÆÃUzÀ °À è EgÀÄvÁÛ£.É F «µAÀiÀĪÀÅ ¥wÀæªÁ¢U É UÉÆwÛzÀÄÝ EgÀÄvÀÛz.É zÁªÁ d«ÄãÀÄ ¥wÀæªÁ¢AiÀÄ vÁ¬Ä AiÀiÁz À¥zÀ ÁäªwÀ UAÀ: ²Ã椪Á¸ïgÁª À PÀÄ®PtÀ ð ¸Á: ºÀÆ®UÃÉj EªgÀÀ ºÉ¸jÀ£À°è EgÀÄvÀÛz.É DzgÀ É ¸zÀ jÀ ¥zÀ ÁäªwÀ EªgÀÀÄ ¸ÀĪÀiÁgÀÄ 8 ªµÀ ðÀU½ÀAz À PÁtAÂiÀiÁVgÀÄvÁÛ¼.É ¸zÀ jÀ ¥wÀæªÁ¢AiÀÄ vÁ¬ÄAiÀÄÄ fêAÀv ÀEgÀĪ À§UÉÎ ¸AÀ±AÀiÀÄ EgÀÄvÀÛz.É 2. ¸zÀ jÀ zÁªÁ d«ÄãÀÄ £ªÀ ÀÄä vÁ¬Ä º¸ÉÀj£°À ègÀÄvÀÛz.É JAzÀÄ ¥wÀæªÁ¢ ªÁ¢AiÀÄ P¨À ÁÓ ª»À ªÁnU É ¢£ÁAP À 18.09.2010 gAÀzÀÄ vPÀgÀÁgÀÄ ªÀiÁrgÀÄvÁÛ£.É DzgÀÉ ªÁ¢AiÀÄÄ Hj£À »jAiÀÄ ¸ªÀ ÀÄPÀëªÀÄ ¥wÀæªÁ¢AiÀÄ£ÀÄß PgÀ¬É Ĺ §Ä¢ÝªÁz Àw½¹ ºÃɽzgÀÀÆ ¥wÀæªÁ¢ PÃɽgÀĪ¢À ¯Áè.” It is un-understandable, how these averments constitute any ground for decreeing the suit for declaration of title to a huge land admeasuring more than 8 Acres; neither the learned Trial Judge nor the Lok Adalath adverted to plaint averments at least to ascertain who were all the co-owners :
8. : of the property and whether declaration of title could be granted in their absence as parties to the suit; things have been accomplished in an abnormal haste and with culpable negligence; if title to a property can be so casually & carelessly declared in favour of plaintiff consequently divesting it from others i.e. non-parties, nothing less than the Institution of Property will be at stake; this is not a happy thing to happen in Judicial Process, to say the least. (e) A perusal of the papers makes it irresistible to reproduce what the Apex Court of the country in Krishan Yadav Vs. State of Haryana (1994)4 SCC165stated, at para 16: “16. Having regard to all the above, the irresistible conclusion is "fraud has reached its crescendo". Deeds as foul as these are inconceivable much less could be perpetrated. We are reminded of the words of Shakespeare:
"Thus much of this, will make Black, white; foul, fair; wrong, right; Base, noble; Ha, you gods! why this?." (Timon of Athens, Act IV, Sc. 3)” The Hon’ble Supreme Court in S.P.Chengalvaraya Naidu Vs. Jagananth (1994) 1 SCC1observed as to what should :
9. : happen to the Court Orders obtained by fraud; at para 1, it stated. "Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” The facts of this petition make it a classic case of fraud of first order for the invocation of the law declared in the above decision. (f) There is yet another aspect which needs to be a bit deliberated upon; the first respondent did not aver in the plaint that the petitioner Padmavati was dead & gone; nor did he claim that her whereabouts were not known to those who naturally would have heard of them; the provisions of Sections 107 & 108 read with Section 114 of the Indian Evidence Act, 1872, deal with presumption of death of a person; Section 107 provides that if a person is shown to have been alive within thirty years of the date on which the question whether he is alive or dead arises; there is a :
10. : presumption of his being alive and the burden of proving the contrary lies on the asserter; Section 108 is in the nature of a proviso to Section 107 and it provides that when a person is continuously absent for seven years or more and not heard by the near & dear who would naturally have heard of him had he been alive, that person may be presumed to have died, unless the contrary is shown by the contender; (g) A presumption of death of a person cannot be raised for an askance since death, apart from bringing a train of problems, has serious legal consequences, as well; firstly, the death of a person puts his legal personality to an end; ordinarily then opens succession to his estate; several other things too fall apart affecting the rights & liabilities of his survivors; Court need to be more vigilant in cases that are principally founded on the presumption of death; in the instant case, nothing is stated in the pleadings as to when the petitioner is said to have disappeared from the scene or that when her whereabouts were last heard of and by whom; similarly, what reasonable efforts were made to ascertain her whereabouts are also conspicuously absent in the pleadings; the very lady has knocked at the doors of :
11. : Writ Court; after her death pendente lite, the L.Rs. too have come on record and they are none other than sons & grandchildren of a pre-deceased son; added to all this, the respondents have chosen to remain absent and unrepresented, despite service of notice. (h) The second respondent is none other than a son of deceased petitioner and he has conspired against his own mother & brethren and defrauded them too hand in glove with respondent No.1; this can not be permitted to go with impunity; both the respondents are liable to be saddled with exemplary and penal costs; justice of the case warrants that the second respondent should not be permitted to take any share in the suit land, which he otherwise would have had; mercy & leniency in matters like this are misplacements. In the above circumstances, this writ petition succeeds: (i) a Writ of Certiorari issues quashing the impugned compromise decree and, that the suit of the first respondent is dismissed; the first respondent being liable is directed to pay a cost of Rs.2,00,000/- (Rupees Two lakh) only to the estate of the deceased petitioner within six weeks; :
12. : (ii) The entries in the Revenue Records concerning the suit land shall be mutated by the jurisdictional Tahasildar, in favour of the L.Rs. of the deceased petitioner jointly and to the exclusion of the second respondent herein, within eight weeks to be reckoned from the production of this Order, and report compliance to the Additional Registrar General of this Court within next two weeks failing which the official runs the risk of contempt proceedings apart from the possible levy of heavy costs. (iii) It is open to the L.Rs. of the deceased to lodge police complaint against the respondents; the jurisdictional Police or the Court concerned may give due consideration to the pendency of this Writ Petition whilst viewing the delay brooked in lodging the complaint. SD/- JUDGE sh/Kms