GEMMA MARTINS Vs. GANESH BHIKU HARMALKAR

JUDGEMENT

(1.) AT the request of Shri Rohit Bras De Sa on behalf of the petitioner, the name of respondent no. 2 is deleted, at his own risk.

(2.) HEARD learned Counsel on behalf of both the parties. By this Writ Petition, the petitioner challenges the ex-parte judgment of the Mamlatdar dated 28/11/2000 and certificate of purchase in respect of some of the property. It appears that the proceedings before the Mamalatdar were filed against unknown legal representatives of late Ms. Maria Botelho Oliveira, who according to the petitioner was dead when the said proceedings were filed, and Shri Armando F. Botelho De Oliveira, as regards whom, the petitioner is unable to make any statement whether he was living or dead when the said proceedings were filed. The petitioner claims that she has acquired the properties, the subject matter of the said proceedings, by virtue of inventory proceedings bearing no. 119/1995 held upon the death of the said Ms. Maria Botelho Oliveira. The petitioner claims that the said Ms. Maria Botelho Oliveira is her paternal aunt but there is not even a single statement in the petition as to when the said Ms. Maria Botelho Oliveira died and whether upon her death the petitioner had acquired any share in the subject properties. This petition has also been filed against the said Armando f. Botelho De Oliveira showing him as deceased, following the same vice which was followed before the Mamlatdar, without showing his legal representatives, and, after this defect was pointed out today to the petitioner, his name has been deleted by the petitioner.

(3.) THE ex-parte judgment dated 28/11/2000 has been challenged by the petitioner based on the judgment of this Court i. e. Donald Gonsalves V/s. Penha de Franca Youth Club (2002 (3) All MR 815 ). It is also submitted that it was obtained by fraud and further submission is made, relying on A. V. Papayya Sastry and Ors. V/s. Govt. of A. P. and Ors. (2007 (4) SCC 221) that fraud could be challenged even in a writ petition.