SYED YUSUFF Vs. FATIMABI

JUDGEMENT

(1.) THIS second appeal is against the judgment and Decree dated 16. 11. 1996 passed by Principal Munsiff, Kolar in O. S. No. 523/90 which was affirmed by Additional Civil Judge (Senior division), Kolar in R. A. No. 1/97 dated 3. 2. 2003.

(2.) APPELLANT is the original defendant. Respondent is the original plaintiff. For the sake of convenience, the parties will be referred hereinafter with reference to their rank in the suit.

(3.) FACTS which have given rise to this appeal are as follows: plaintiff and defendant are the wife and husband. Defendant was the owner of plaint schedule property. He had executed in favour of plaintiff, a Mahar deed, dated 30. 12. 1987, which was registered. Plaintiff and defendant have amongst them three children. Disharmony having come into existence, plaintiff and defendant are living separately. Defendant had instituted O. S. No. 584/89 on the file of Munsiff, Kolar, against plaintiff for decree of declaration of title and for permanent injunction in respect of suit property. According to the plaintiff, defendant by playing fraud and by resorting to acts of impersonation, has got filed a compromise petition in the said suit, based on which, the suit was decreed on 6. 9. 1989. Contending that, defendant is guilty of playing fraud and misrepresentation on the Court in O. S. No. 584/89 and alleging that she was not served with summon of the said suit and she had not engaged any advocate and did not appear in the proceedings nor was a party to the compromise petition and that the decree passed therein is unlawful and seeking declaration to the effect that the decree passed in O. S. No. 584/89 is void, illegal and not binding on the interest of the plaintiff and for cancellation of the decree and also for decree of permanent injunction restraining the defendant from entering into any contract by way of sale, gift, mortgage or any encumbrance in respect of the suit property, present suit was instituted. Defendant by appearing through Counsel, has filed written statement inter alia contending that, O. S. No. 584/89 filed by him against plaintiff herein was lawfully prosecuted and due to the intervention of well wishers, the matter was compromised and a consent decree based on the compromise petition was passed and that he is in possession and enjoyment of the property. He has denied the allegations that fraud was practised on the Court by resorting to act of misrepresentation. According to him, the decree passed in O. S. No. 584/89 is lawful. He contended that, the subsequent suit is not maintainable, since the decree passed in O. S. No. 584/89 is binding on plaintiff.