Devaki and others v. Ganapathy Bhatt (P. N. Ganapathy Bhatt)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 20TH DAY OF JUNE 2013/30TH JYAISHTA 1935** **Ex.SA.No. 11 of 2013 () ------------------------** **AS 55/2011 of SUB COURT, KASARAGOD E.A.No.395/2010 IN E.P.No.104/2007 IN OS 289/1986 of PRINCIPAL MUNSIFF, KASARAGOD ----------------** **APPELLANT(S)/APPELLANTS/CLAIM PETITIONERS :-** ## **----------------------------------------------** ## **1. DEVAKI, AGED 72 YEARS** - **W/O LATE APPANNA NAIK, RESIDING AT BEDAGUDDE HOUSE NELLITHADKA, PO KURUDAPADAVU, BAYAR VILLAGE KASARAGOD TALUK AND DISTRICT.** **2. KRISHNAPPA NAIK, AGED 47 YEARS** - **S/O LATE APPANNA NAIK, RESIDING AT BEDAGUDDE HOUSE NELLITHADKA, PO KURUDAPADAVU, BAYAR VILLAGE KASARAGOD TALUK AND DISTRICT.** **3. JAYALAKSHMI @ JANAKI, AGED 43 YEARS** - **D/O LATE APPANNA NAIK AND W/O SUBBA NAIK RESIDING AT KAJAPPADY HOUSE, VITTAL PO, BANTWAL TALUK KARNATAKA STATE.** **4. SARASWATHI @ PARVATHI, AGED 42 YEARS** - **D/O LATE APANNA NAIK AND W/O NARAYANA NAIK RESIDING AT KALAYATHODY HOUSE, KUMBADAJE PO KASARAGOD TALUK AND DISTRICT.** **5. RAMA NAIK, AGED 40 YEARS** - **S/O LATE APPANNA NAIK, RESIDING AT BEDAGUDDE HOUSE NELLITHADKA, PO KURUDAPADAVU, BAYAR VILLAGE KASARAGOD TALUK AND DISTRICT.** **6. ANNU NAIK, AGED 36 YEARS** - **S/O LATE APPANNA NAIK, RESIDING AT BEDAGUDDE HOUSE NELLITHADKA, PO KURUDAPADAVU, BAYAR VILLAGE KASARAGOD TALUK AND DISTRICT.** **7. JANARDHANA NAIK, AGED 34 YEARS** - **S/O LATE APPANNA NAIK, RESIDING AT BEDAGUDDE HOUSE NELLITHADKA, PO KURUDAPADAVU, BAYAR VILLAGE KASARAGOD TALUK AND DISTRICT.** **8. SADHASIVA @ SADASIVA NAIK, AGED 33 YEARS S/O LATE APPANNA NAIK, RESIDING AT BEDAGUDDE HOUSE NELLITHADKA, PO KURUDAPADAVU, BAYAR VILLAGE KASARAGOD TALUK AND DISTRICT.** **(APPELLANTS 1 TO 4 AND 6 TO 8 ARE REPRESENTED BEFORE THIS HON'BLE COURT BY THEIR POWER OF ATTORNEY HOLDER THE 5TH APPELLANT SRI.RAMA NAIK).** **BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY MATHEWS** **Ex.SA.No. 11 of 2013** ## **RESPONDENT(S)/RESPONDENTS/RESPONDENTS :-** ## **-------------------------------------------** ## **1. P N GANAPATHY BHAT, AGED 56 YEARS** - **S/O P.NARAYANA BHAT, RESIDING AT ANUGRAHA, PO GOONADKA SULLIA (VIA), SMAPAJE VILLAGE, D.K. DISTRICT KARNATAKA STATE, PIN:573 103.** ## **2. ISMAIL, AGED 55 YEARS** - **S/O LATE ABDUL RAHIMAN @ ADRAMA, RESIDING AT BALLUR BAYAR VILLAGE, PO BARIPADAVU KASARAGOD TALUK AND DISTRICT. PIN:671 121.** **3. ABDULLA,, AGED 60 YEARS** - **RESIDING AT BALLUR, BAYAR VILLAGE, PO BARIPADAVU KASARAGOD TALUK AND DISTRICT. PIN:671 121.** **4. ABDULLA,, AGED 50 YEARS** - **S/O LATE ABDUL RAHIMAN @ ADRAMA, RESIDING AT BALLUR BAYAR VILLAGE, PO BARIPADAVU KASARAGOD TALUK AND DISTRICT. PIN:671 121.** **5. AYISHABI @ AYISHA,, AGED 47 YEARS D/O LAE ABDUL RAHIMAN @ ADRAMA, RESIDING AT LALBHAG PAIVALIKE VILLAGE AND POST KASARAGOD TALUK AND DISTRICT. PIN:671 348.** **6. SAFIYA,, AGED 45 YEARS** - **D/O LATE ABDUL RAHIMAN @ ADRAMA, RESIDING AT BALLUR BAYAR VILLAGE, PO BARIPADAVU KASARAGOD TALUK AND DISTRICT. PIN:671 121.** **7. RUKIYA,, AGED 43 YEARS D/O LATE ABDUL RAHIMAN @ ADRAMA AND W/O ABOOBACKER RESIDING AT LALBHAG, PAIVALIKE VILLAGE AND POST KASARAGOD TALUK AND DISTRICT, PIN:671 348.** **8. MAIMOONA,, AGED 42 YEARS D/O LATE ABDUL RAHIMAN @ ADRAMA AND W/O ABDUL RAHIMAN RESIDING AT BALLUR, BAYAR VILLAGE, PO BARIPADAVU KASARAGOD TALUK AND DISTRICT. PIN:671 121.** **R2,R3,R5 TO 8 BY ADV. SRI.T.M.ABDUL LATHEEF R1 BY ADV. SRI.KODOTH SREEDHARAN** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K. BALAKRISHNAN, J. ---------------------------------Ex.S.A. No. 11 of 2013 ------------------------------Dated this the day of June, 2013** ## **J U D G M E N T** This appeal is filed by the claim petitioners in E.A. 395/05 in E.P. 104/2007 of Munsiff's Court Kasargode. They claim to be the legal heirs of deceased Appana Naik. An extent of 1.90 acres of land in RS No.289/1 A 2 of Bayar Village was assigned in favour of Appana Naik S/o. Choma Naik, who was a resident of Bayar Village. Pattayam was issued to Appana Naik mentioned above. He was in possession of the same. While so, respondents 2 to 4 and deceased Abdu Rahiman trespassed into the said property and constructed two buildings thereon. Hence, Appana Naik filed a suit for recovery of possession on the strength of his title. A decree was passed in that suit in favour of Appana Naik. Appana Naik executed a Power of Attorney in favour of one Krishna Prasad on 24.5.1996. It was a registered general Power of Attorney. On the strength of the Power of Attorney Krishna Prasad was in possession of the property and later he Ex.S.A. No. 11 of 2013 -: 2 :- executed a sale deed dated 30.3.2005 in favour of the 1[st] respondent Ganapathi Bhatt. On the strength of that assignment deed, Ganapathi Bhatt filed execution petition. That execution petition was resisted by respondents 3, 4 and others. So many contentions were raised by them. All those contentions were negatived by the execution court. That order was challenged before this court by the 4[th] respondent Abdulla by filing C.R.P. No.155/2008. So many contentions including the validity of Power of Attorney were raised by the revision petitioner therein. All those contentions were found against by this court, after a detailed consideration of all the aspects. The objection as against the registered Power of Attorney and also the assignment deed executed by the Power of Attorney in favour of Ganapathy Bhatt was found to be unmerited and hence the C.R.P. was dismissed by this court on 26.7.2010. It was, thereafter, this E.A. 395/2010 filed by the appellants herein, claiming themselves to be the legal heirs of late Appana Naik . 2. The main contention that has been advanced by the appellants is that Appana Naik, to whom patta was issued in Ex.S.A. No. 11 of 2013 -: 3 :- respect of the suit property died on 18.7.1979 and as such it was not possible for Appana Naik to file a suit as O.S. 289/1986. Similarly it is also contended that it was not possible for Appana Naik to execute a Power of Attorney on 24.5.1996 and accordingly the assignment deed executed by that Power of Attorney is also illegal. Thus the learned counsel for the appellants contend that a fraud was played on the court by filing a suit by some other person impersonating himself as Appana Naik and also by executing the Power of Attorney and then a sale deed. 3. This submission made by the learned counsel for the appellants is strongly resisted by the learned counsel for the 1[st] respondent contending that the present E.A. 395/2010 was filed only at the behest of the judgment debtor in the suit who resisted the delivery proceedings by raising all sorts of untenable contentions and after they failed in their attempt to stall the execution of the decree a plea is raised that Appana Naik died in 1979 and that no Power of Attorney was executed by Appana Naik. 4. Ext.A1 is the certificate of death of Appana Naik Ex.S.A. No. 11 of 2013 -: 4 :- dated 7.11.1998. The credibility and acceptability of the certificate has been strongly assailed by the 1[st] respondent pointing out that though Appana Naik was stated to have died on 18.7.1979, the death was registered only on 7.11.1998; more than 19 years after the alleged death. The permanent address of the deceased was shown as Beda Gudda House, Karopadi Village. It is stated that a petition was filed before the Additional Civil Judge Junior Bantuwal and it was based on the order passed by that court, the registration was effected. But it was pointed out by the courts below that the specific case put forward by the petitioner therein, who claimed to be the wife of that Appana Naik, is that her husband Appana Naik was residing with her at Karopadi Village Bantuwal Taluk in Karnataka State and that the said Appana Naik died due to illness at his residence at Karopadi Village on 18.7.1979. But the 5[th] petitioner/appellant, who was examined as PW1 before the execution court has stated that Appana Naik was not residing at the house in Karopadi village as stated in the petition. Therefore, it is vehemently argued by the learned counsel for the 1[st] respondent that Ex.S.A. No. 11 of 2013 -: 5 :- Ext.A1- the certificate which is tried to be projected by the appellants to contend that Appana Naik died in 1979 has absolutely nothing to do with Appanna Naik the plaintiff in O.S.No.289/1986. It is a clear attempt to play fraud on the court, presumably, done at the instance of the 4[th] respondent Abdulla. As stated earlier though Appana Naik was stated to have died in 1979, the death was registered only on 7.11.1998. PW1 himself says that his father was not residing in Karopadi Village of Bantuwal Taluk. If so, how Ext.A1 can be made use of to contend that Appana Naik who obtained the decree in O.S. 289/1986 is the Appana Naik made mention of in Ext.A1. 5. The learned counsel for the 1[st] respondent would submit that it is only the handiwork of the 4[th] respondent who lost in the CRP filed by him. It is further submitted by the learned counsel that everything was master minded by an ingenious brain to get a certificate of death of one Appana Naik from somewhere else and then to contend that, that Appana Naik was the plaintiff in O.S. No. 289/1986 and that he had died in 1979. Strange indeed is the way the judgment Ex.S.A. No. 11 of 2013 -: 6 :- debtors had tried to manoeuvre and manipulate things under the erroneous impression that the court would be swayed by such dexterous devices. It is important to note that a registered Power of Attorney was executed by Appana Naik on 24.5.1996. There is a presumption regarding the legality and regularity of the proceedings relating to the execution of the Power of Attorney. 6. Section 85 of the Evidence Act says that the Court shall presume that every document purporting to be a Power of Attorney and to have been executed before and authenticated by a notary public, or any court, Judge, Magistrate, Indian Consul or Vice-Consul or representative of the Central Government, was so executed and authenticated. Here the Power of Attorney was registered before the Sub Registrar. Therefore, it has to be presumed that the Sub Registrar had ascertained the identity of the person who executed the Power of Attorney. It is easy to allege that there was impersonation. But there is absolutely no iota of truth in the allegation made by the appellants. The contention that the Power of Attorney was executed by impersonation is too Ex.S.A. No. 11 of 2013 -: 7 :- tenuous to be countenanced. There is absolutely nothing to doubt the validity and correctness of the registered Power of Attorney as stated above. It is also pertinent to note that Appana Naik, who was assigned the land in respect of which pattayam was issued, had filed the suit before the Munsiff's Court contending that defendants 1 to 4 therein trespassed into the property and constructed two buildings thereon. It is interesting to note that the appellants in the claim petition contended that they are in possession of the property but at the next breath they also contend that two such buildings are situated in the property. PW1 is not in a position to say when those buildings were constructed. At another stage PW1 says that the buildings are occupied by respondent 4 and others; namely, the judgment debtors and the legal heirs of deceased Abdu Rahiman who was one of the defendants in the suit. Therefore it is crystal clear that PW1 was set up by the judgment debtors who failed in resisting the execution for delivery. If as a matter of fact Appana Naik died in 1979, then naturally when the defendants in the suit admittedly trespassed into the said property and constructed the Ex.S.A. No. 11 of 2013 -: 8 :- building, suit would have been filed by them for recovery of possession or for other necessary reliefs. That itself would unfold the fallacy of the case now advanced by the appellants stating that Appana Naik died in 1979 and after the death of Appana Naik the appellants were in possession of the property. Since the defendants in the suit had trespassed into the property and constructed the building, a suit was filed for recovery of possession. It is not disputed that the defendants were in possession of the property and that was the reason why they resisted the execution for delivery but without getting the decree set aside by filing appeal. The contention that it was only an ex parte decree would not alter the position since the decree was not at all challenged in any of the modes known to law. 7. Ext.B2, the copy of which has been placed before me shows that it is the death certificate pertaining to Appanna Naik, son of Choma Naik who was a resident of Nellithadka, Bayar, Kasaragod Taluk, Post Chiripadavu. The place of death is shown as Goonadka, Sullya Taluk, Sambaje Registrar Office, Dakshina Kannada, Karnataka State. The death was Ex.S.A. No. 11 of 2013 -: 9 :- registered on 12.3.2007. There is no evidence to show that Ext.B2 does not pertain to Appanna Naik, the plaintiff in O.S. 289/1986. So much so, there can be no difficulty to hold that the death certificate Ext.A1 has absolutely nothing to do with the factum of death of Appanna Naik. The courts below were perfectly justified in relying upon Ext.B2 to hold that Appanna Naik died only on 04.3.2007. In view of what is stated above, it is clearly established that the Appanna Naik, who filed the suit and appeared before the court to give evidence was the real Appanna Naik to whom pattayam was issued and who was having title of the property. The contention to the contrary is nothing but a brazen lie. 8. PW1 who claims to be in possession of the property himself says that two houses were constructed in that property and at another stage he says that the defendants in O.S. 289/1986 are in possession of the property. The fact that the appellants did not file any suit against the trespassers for injunction or for recovery of possession would also speak volumes as to the total incredibility of the story put forward by the appellants. Suffice it to say, the whole case set up by the Ex.S.A. No. 11 of 2013 -: 10 :- appellants and the judgment debtors gets imbogged in the quagmire of irreconcilable contradictions. 9. It is vehemently argued by the learned counsel for the appellants that if the judgment is vitiated by fraud it is a nullity and the court cannot act upon such a judgment. It was held by the Apex court in **S.P.CHENGALVARAYA NAIDU** v. **JAGANNATH AND OTHERS [(** 1994) 1 SCC 1] : “Fraud avoids all judicial acts, ecclesiastical or emporal” 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.” It was also held by the Apex Court in **Meghmala and others** ## v. **G.Narasimha Reddy and others** [(2010) 8 SCC 383] ## thus :- “It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law. “Fraud avoids all judicial acts, ecclesiastical or temporal” (Vide S.P.Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1]). Ex.S.A. No. 11 of 2013 ## -: 11 :- In Lazarus Estates Ltd. v. Beasley [(1956) 1 QB 702] the Court observed without equivocation that : (QB p. 712) “No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” The learned counsel has also relied upon the decision in **Gram Panchayat of Village Naulakha** v. **Ujagar Singh and others** [(2000) 7 SCC 543] in support his submission that no independent suit need be filed to attack the judgment on the ground of fraud, if there are materials to hold that the judgment was obtained by practicing fraud on the court. No doubt, fraud vitiates even the most solemn proceedings in any civilised system of jurisprudence. But, so far as the case on hand is concerned, there is nothing to show that any fraud was practiced on court or that the judgment in O.S.No.289/1986 was obtained by impersonation or fraud. The 'pattayam' issued in favour of Appanna Naik was admittedly produced before the trial court and it was thus, a decree, though ex parte was passed in favour of Appanna Naik. The defendants therein did not choose to get the decree set aside in any mode known to law. It is quiet evident that these appellants were set up by the Judgment Debtors after Ex.S.A. No. 11 of 2013 -: 12 :- CRP No.155/2008 was dismissed by this Court on 26.7.2010. 10. It is submitted by the learned counsel for the first respondent that delivery has already been effected and it was recorded by the execution court. 11. The courts below have analysed the evidence correctly and rightly dismissed the application. I find no reason to interfere with the impugned order. No substantial question of law is involved. Hence, this Ex.S.A. is dismissed. **Sd/N.K.BALAKRISHNAN, JUDGE.** //True Copy// P.A. To Judge AniJJJ/Das/Jvt