SANDHYA ROY Vs. BISWANATH MONDAL

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India has been filed by the plaintiff of Title Suit No.17 of 2012 challenging order No.2 dated 27th March, 2012 passed by learned Civil Judge (Senior Division) at Suri District - Birbhum in Title Suit No.17 of 2012.

(2.) The petitioner's case, in short, is that Jyogendranath Jyotish Sastri, the father of the petitioner and O. P. No.2 to 10 was the original owner of the suit property. He died on 21st September, 1994 leaving behind the petitioner and O. P. No.2 to 10 as his heirs and legal representatives.

(3.) After his death the petitioner and the O. P. No.2 to 10 had 1/10th share each in the suit property. The petitioner came to learn sometime in the month of February, 2012 that a partition suit being Title Suit No.3 of 1976 was filed and the suit property was partitioned keeping the petitioner in dark. It is a specific case that though she had 1/10th share in the suit property being one of the legal heirs of Jyogendranath Jyotish Sastri but she was not made a party in the partition suit and accordingly said decree of partition suit dated 24.08.1982 and all subsequent proceedings were illegal being vitiated by fraud. She accordingly filed a suit being Title Suit No.17 of 2012 praying for setting aside the judgment and decree of the Title Suit No.3 of 1976, for permanent injunction restraining the defendants from executing said decree through Title Execution Case No. 9 of 1998 and for other consequential reliefs. The petitioner plaintiff filed an application for stay of execution of the decree passed in said Title Suit No. 3 of 1976 being Title Execution Case No.9 of 1998. By the order impugned learned Trial Court rejected said application for stay. Hence is this application. Mr. Sabyasachi Bhattacharyya appearing for the petitioner plaintiff submits that the petitioner had admittedly 1/10th share in the suit property being one of the heirs of Jyogendranath Jyotish Sastri, the original owner of the suit property. According to him, without impleading the petitioner plaintiff said partition suit being 3 of 1976 was filed. According to him, said judgment and decree were vitiated by fraud and accordingly the petitioner plaintiff filed said suit for declaration and injunction. In this connection he refers a case law reported in A V PAPAYYA SASTRY V. GOVERNMENT OF A P AND ORS, 2007 4 SCC 221 wherein it was held that a fraud goes to the root of the matter and vitiates everything arising from said fraudulent act. According to Mr. Bhattacharyya unless the Title Execution Case being No.9 of 1998 arising out of said fraudulent decree passed in Title Suit No.3 of 1976 is stayed till disposal of the suit, the plaintiff petitioner will suffer irreparable loss and injury as she being in possession in part of the suit property will be dispossessed therefrom on the strength of a decree obtained by fraud.