SHANTHILAL BABULAL JAIN Vs. NARON ABUBACKER KASAM

JUDGEMENT

(1.) These writ petitions arise from the order passed by learned Principal Sub Judge, Thalassery in the final decree proceedings in OS.No.414 of 1982 of that court. For convenience parties before me are referred to as petitioner, plaintiff and defendants as in the court below. Plaintiff and defendant Nos.1 and 2 are children of the late Kassam Hussain and defendant No.3, his wife. Defendant No.4 is the wife of defendant No.2. Plaintiff sued defendant Nos. 1 to 4 for partition and separate possession of his 7/24 shares in three items of properties - item No.1 being a property situated at Karjat in Raigard district, Maharashtra and item Nos. 2 and 3 being properties situated within the jurisdictional limits of learned Principal Sub Judge, Thalassery. He claimed that the late Kassam Hussain acquired item No.1 from its jenmi, constructed a building thereon and started a hotel in the name and style "Islamic Hotel". The said Kassam Hussain, it is not disputed breathed his last on 27-03-1936. Plaintiff claimed that he was in the womb of his mother at the time of death of his father and defendant Nos.1 and 2 were minors, Hence the hotel business was continued on their behalf by their uncle. Assainar. When defendant Nos. 1 and 2 became major they took over management of the hotel and changed its name to 'Malabar Hotel'. According to the plaintiff, himself and defendant Nos.1 and 2 are co owners of item No.1 About 10 years before institution of the suit, plaintiff started business on the veranda of building in item No.1. As regards item Nos.2 and 3 plaintiff claimed that said properties were acquired by defendant Nos.1 and 2 from the profits derived from the hotel business in the building in item No.1 and hence those items are also partible. Before institution of the suit plaintiff had issued notice to defendant Nos.1 and 2 on 11-01-1982 demanding partition but the demand was refuted by them vide reply notice. Defendant Nos.1 to 3 contended that the late Kassam Hussain had no right over item No.1. He was doing business in a shed in the said property. That business was later taken over by Assainar, uncle of plaintiff and defendant Nos.1 and 2. Assainar stopped that business and surrendered the land to the jenmi. Later defendant Nos. 1 and 2 got entrustment of the said land from the Jenmi, constructed building and started 'Malabar hotel'. It is incorrect to say that plaintiff has any partible right over item No. 1. They contended that item Nos.2 and 3 were acquired by defendant Nos. and 4 and it belonged to them. They disputed territorial jurisdiction of the court to entertain a suit in respect of item No.1 situated at Karjat. Learned Principal Sub Judge passed a preliminary judgment and decree on 21-08-1987. As per that, the suit to the extent it concerned item Nos.2 and 3 was dismissed and in respect of item No.1 plaintiff was given a preliminary decree for partition allowing him to have separate possession of his 7/24 shares while the remaining shares in that item went to defendant Nos. 1 to 3. Plaintiff filed application for passing a final decree. In that proceeding, petitioner who is a pendents lite assignee of item No.1 from defendant Nos.1 and 2 was impleaded as additional respondent No.3 but, there was no direct service of notice on him. Instead notice was allegedly served by publication in an English daily. Petitioner remained absent in the final decree proceedings. The Advocate Commissioner inspected the property at Karjat and suggested division. In the final decree proceeding, as against the direction in the preliminary decree that plaintiff is entitled to have 7/24 shares and defendants Nos. 1 to 3 are to have the remaining shares, the latter agreed to be satisfied with owelty of Rs.4,11,480/-each for defendant Nos. 1 and 2 and the entire item No.1 was allotted to the share of plaintiff. Final decree was passed. As item No.1 is situate at Karjat, the decree certificate was transmitted for execution to the court of civil Judge, Junior Division, Karjat. At that stage petitioner, getting information about the preliminary and final decrees concerning item No.1 filed I.A.Nos.295 and 298 of 2001 in the court of learned Principal Sub Judge, Thalassory to set aside final decree and to condone the delay in filing that application. He claimed that he being a permanent resident of Karjat was not aware of the pendancy of the suit. He is not conversant with English language and the English daily in which notice was published had no circulation at his native place. He was served with notice on 22-11-2000 under Order 21 Rule 16 of the Code of Civil Procedure (for short, "the Code") on E.A.No.5 of 2000 from the court of learned Civil Judge (Junior Division), Karjat. Those applications were opposed by me plaintiff. Learned Principal Sub Judge dismissed the said applications. Petitioner challenged that common order in this court in F.A.O.No.1 of 2005. It was contended on behalf of petitioner that the whole proceeding which culminated in the preliminary and final decrees was vitiated by fraud and collusion between plaintiff and defendant Nos.1 to 4 and that petitioner never had information about the pendancy of the suit. He also contended that notwithstanding that item Nos.2 and 3 were not available for partition as found by the learned Sub Judge those items were fraudulently included in the plaint schedule with the sole object of conferring jurisdiction for the learned Principal Sub Judge, Thalassery to direct partition of item No.1 situated at Karjat. It was also contended by petitioner that Kassam Hussan, predecessor-in-interest of plaintiff and defendant Nos.1 to 3 under whom plaintiff claimed right, title and interest and possession aver item No.1 had expired on 27-03-1936 while, defendant Nos. 1 and 2 acquired item No.1 only as per assignment deed No. 1335 of 1964 dated 22-11-1964 of SRO, Karjat and that defendant Nos.1 and 2 had in turn assigned their right over item No.1 in favour of petitioner and one Himathlal Oswal as per sale deed Nos.417 of 1985 and 418 of 1985 dated 25-03-1985, both of SRO. Karjat. The said Himathlal Oswal released his right over item No.1 to the petitioner as per document No. 1726 of 1988 dated 07-07-1988 of the SRO, Karjat. Petitioner denied that Kassam Hussain had any conceivable right even over item No.1 to devolve on plaintiff and defendant Nos.1 to 3. This court while deciding F.A.O.No.1 of 2005 held that in so far as there is no challenge in that appeal against the preliminary decree, it was not necessary for this court to go into the question whether institution of the suit and passing of preliminary decree are vitiated by fraud and collusion but held that the final decree was obtained by fraud and collusion between plaintiff and defendant Nos.1 and 2 as indicated by the fact that notwithstanding that the major share of item No.1 was to go to defendant Nos.1 and 2 as per the preliminary decree, they were generous enough to be satisfied with owelty leaving the entire property to the plaintiff to whom the preliminary decree provided only 7/24 shares. Holding so, notwithstanding the length of delay in petitioner seeking to set aside the final decree this court allowed the appeal and I.A.Nos. 295 and 296 of 2001, set aside final decree and remitted the case to the learned Principal Sub Judge for fresh decision. After remand, parties adduced evidence. Petitioner concentrated on his contention regarding fraud and collusion between plaintiff and defendant Nos.1 and 2 in the institution of the suit and obtaining the preliminary and final decrees. He gave evidence as RW1 and produced Exts.B1 to B9. Plaintiff gave evidence as PW1, concentrating on the issue regarding passing of the final decree, of course denying the allegation regarding fraud and collusion. Exts.C1 to C5, reports. and plans of the Commissioner were also marked in evidence. Learned Principal Sub Judge held that though argument was advanced on behalf of petitioner that institution of the suit itself, and not to say about the preliminary decree are vitiated by fraud and collusion between plaintiff and defendant Nos.1 and 2, it was not permissible for the(c) learned Principal Sub Judge to go into that question since this court while deciding F.A.O.No.1 of 2005 had only set aside the final decree and directed enquiry into that matter. The contention raised by petitioner regarding fraud and collusion was therefore not considered. Learned Principal Sub Judge found that division made by Advocate Commissioner as per Exts.C1 to C5 was not just or equitable and directed fresh division by another Advocate Commissioner. Both sides are aggrieved though, in different ways. Petitioner still claiming that institution of the suit and obtaining preliminary decree are vitiated by fraud and collusion between plaintiff and defendant Nos.1 and 2 has filed W.P.C.No.566 of 2008 while order of learned Principal Sub Judge appointing Advocate Commissioner for fresh division of item No.1 is challenged by the plaintiff in W.P.C.No.36289 of 2007.

(2.) Learned Senior Advocate appearing for petitioner (W.P.C.No.566 of 2008) asserted that the very institution of suit is the result of fraud and collusion between plaintiff and defendant Nos.1 and 2 in that, item Nos.2 and 3 which were negligible in extent when compared to item No.1 and which were not available for partition as held by learned Principal Sub Judge also and which plaintiff did not challenge at any point of time. Item Nos.2 and 3 were fraudulently incorporated in the plaint with the only object of conferring jurisdiction for the learned Principal Sub Judge to entertain the suit for partition of item No.1 which is situated in Karjat, the intention being to avoid assignees getting information about pendencey of suit if filed at Karjat. It is also the contention of learned Senior Advocate that evidence and circumstances on record eloquently indicated fraud and collusion between plaintiff and defendant Nos.1 and 2 to defeat the interest of petitioner who purchased item No.1 for valid consideration from defendant Nos.1 and 2. Learned Senior Advocate contends that fraud vitiated anything and everything including the solemn proceedings of the court which led to passing of the preliminary decree and that once it is shown that proceeding is vitiated by fraud and collusion nothing should stand in the way of the court recalling preliminary judgment and decree and reopening the case even invoking its inherent power under Section 151 of the Code. Learned Senior Advocate has placed reliance on the decisions in Rama Chandra Singh Vs. Savitri Devi and Ors.,2003 8 SCC 3191 Haji Vs. State of Kerala, 2006 3 KerLT 941, Jai Narain Parampuria and Ors. Vs. Pushpa Devi Saraf and Ors., 2006 7 SCC 756 and A.V. Papayya Sastry and Ors. Vs. Govt, of A.P and Ors., 2007 4 SCC 221. Learned counsel for plaintiff (respondent in W.P.C.No.566 of 2008 and petitioner in W.P.C.No.36289 of 2007) contend that there is absolutely nothing on record to show fraud or collusion between plaintiff and defendant Nos.1 and 2 either in the institution of suit or in the matter of preliminary decree. On the other hand evidence and circumstances show that defendant Nos.1 and 2 had put up a vigorous fight against the suit and they had produced documentary evidence to support their contention that item Nos.1 to 3 are not partible. According to the learned counsel finding entered by this court in F. A.O.No.1 of 2005 is confined to the final decree alone which was set aside and remitted for fresh decision. So much so, learned Principal Sub Judge was only concerned with the issue of passing a proper final decree and hence learned Principal Sub Judge was right in not going into the allegation regarding fraud and collusion in the institution of suit and obtaining preliminary decree. It is also contended by learned counsel that learned Principal Sub Judge was not correct in directing appointment of fresh commission for division and Exts.C1 to C5 were sufficient to directed division of item No.1 among plaintiff and defendant Nos.1 to 3.

(3.) I have gone through the judgment of this court in F.A.O.No.1 of 2005 and the order under challenge. It is not as if this court had refused to accept the contention of petitioner regarding fraud and collusion in the institution of suit and obtaining of preliminary judgment and decree. This court while disposing of F.A.O.No.1 of 2005 did not go into the argument concerning fraud and collusion in the institution of the suit and obtaining preliminary decree since the prayer in the appeal was only against final decree and hence it was not necessary for this court to go into the preliminary decree and matters prior to that. Learned Principal Sub Judge has refused to go into the said question for the reason that there was no application to recall the preliminary decree or, to pass any order with respect to the said decree and since this court also did not go into the question of fraud and collusion (in F.A.O.No.1 of 2005) in the institution of the suit and passing of preliminary decree and the remand judgment of this court only concerned the final decree. Therefore it is not correct to contend that this court had found against the plea of fraud and collusion in the matter of institution of the suit and obtaining the preliminary decree. That is still a matter relevant for consideration.