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In the High Court of Judicature at Hyderabad
RAMESH RANGANATHAN & S. RAVI KUMAR, JJ.
Kothakapu Muthyam Reddy & Others – Appellants
Versus
Bhargavi Constructions, rep., by its Managing partner V. Ramachandra Rao & Others – Respondents
Appeal Suit No. 968 of 2013
Decided On : 25-06-2015
Constitution of India, 1950 – Article 226 – Civil Procedure Code, 1908 – Order 23 – Rule 3 – CPC – Section 9 – Permanent injunction – Sought a decree and against defendants, to declare compromise recorded in before in so far as it related to land admeasuring shown to have created rights of defendant Constructions represented by Sri V in law for having been obtained by fraud and collusion, by playing fraud upon plaintiffs and for grant of a permanent injunction restraining the defendants, especially defendant their agents, servants, employees etc., from interfering with the peaceful possession and enjoyment of the plaintiffs in respect of the suit schedule A, B and C properties – Plaint filed in appellants stated that the 1st plaintiff had purchased land admeasuring under registered sale deed dated others; the first plaintiff also purchased from was confirmed by a deed of confirmation dated had obtained a loan from Sri Reddy, and had mortgaged the land admeasuring in by executing the mortgage deed; in addition thereto, land admeasuring was also in possession of plaintiffs since between themselves, the plaintiffs were in peaceful possession and enjoyment of a total extent of land in interfering plaintiff filed the injunction suit in was decreed in as was not mutated in his name .plaintiff filed against and others for declaration of his title and for perpetual injunction; on being dismissed the 1st plaintiff filed during the pendency of the said appeal defendant filed O.S. for specific performance of the agreement of sale dated 28.12.1995 in respect of agricultural land admeasuring Reddy – Held, Learned Counsel for t respondent, would submit that the allegations in the plaint do not make out a case of fraud. The Court below had rejected the plaint solely on the ground that a civil suit cannot be filed, and the plaintiff’s remedy is only to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. Whether or not the appellant is justified in his claim, that the award of is vitiated by fraud, are matters to be examined by the Court below. As the power to reject a plaint under Order 7 Rule 11 to be exercised by the civil court only if the suit appears, from the statement in the plaint, to be barred by law, the court below erred in rejecting the plaint on the ground that a civil suit is not maintainable order under appeal is set aside. We make it clear that we have not expressed any opinion on the truth or otherwise of the appellant’s claim that the award of is vitiated by fraud. The Court below shall adjudicate the suit on its merits, and in accordance with law – Civil Court if it is vitiated by fraud, it must be borne in mind that allegations of fraud are easier made than established. Fraud can either be proved by established facts or an inference can be drawn from admitted and/or undisputed facts Tribes Employees Association v. Fraud is essentially a question of fact, the burden to prove which is upon him who alleges it – Mere allegations or averments of facts do not make a strong prima facie case of fraud material and evidence has to show it. A finding as to fraud cannot be based on suspicion and conjecture and must be established beyond reasonable doubt Charge Chrome Ordinarily burden to prove fraud would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given if no further evidence were to be adduced by either side –Application stand disposed.
Ramesh Ranganathan, J.
1. The appellants herein are the plaintiffs in O.S. No.107 of 2010. They sought a decree in their favour, and against the defendants, to declare para 18 of the compromise recorded in O.S. No.481 of 2007 before the Lok Adalat dated 22.08.2007, in so far as it related to land admeasuring Ac.9.29 gts of land in Sy. Nos.271, 272 and 273 shown to have created rights in favour of defendant No.31 i.e., M/s. Bhargavi Constructions represented by Sri V. Ramachandra Rao, as nonest in law for having been obtained by fraud and collusion, by playing fraud upon the plaintiffs; and for grant of a permanent injunction restraining the defendants, especially defendant No.31, their agents, servants, employees etc., from interfering with the peaceful possession and enjoyment of the plaintiffs in respect of the suit schedule A, B and C properties.
In this plaint filed in O.S. No.107 of 2010, the appellants stated that the 1st plaintiff had purchased land admeasuring Ac.25.00 cts in Sy. Nos.262, 274 under registered sale deed dated 06.07.1974 from Sri Jamaluddin and others; the first plaintiff also purchased Ac.6.10 gts from Sri Jamaluddin in the year 1975, which was confirmed by a deed of confirmation dated 24.04.1985; Sri Mohd. Kareemuddin had obtained a loan from Sri K. Mutyam Reddy, and had mortgaged the land admeasuring Ac.6.10 guntas, in the year 1982, by executing the mortgage deed; in addition thereto, land admeasuring Ac.12.20 gts was also in possession of the plaintiffs since June, 1993; between themselves, the plaintiffs were in peaceful possession and enjoyment of a total extent of Ac.50.00 gts of land in Sy. Nos.262 to 274 in Poppulaguda village, Rajendranagar Mandal, Ranga Reddy District; as Sri Md. Khairuddin, Ajeemuddin and Kareemuddin, were interfering, the 1st plaintiff filed the injunction suit in O.S. No.333 of 1992 which was decreed in his favour; as the patta was not mutated in his name, the 1st plaintiff filed O.S. No.259 of 1994 against Sri Jamaladdin and others for declaration of his title and for perpetual injunction; on O.S. No.259 of 1994 being dismissed on 05.04.2004, the 1st plaintiff filed A.S. No.2323 of 2005; during the pendency of the said appeal, the 1st defendant filed O.S. No.481 of 2007 for specific performance of the agreement of sale dated 28.12.1995 in respect of agricultural land admeasuring Ac.51.29 gts in Sy. No.262 to 274 of Poppulaguda village, Rajendranagar Mandal, Ranga Reddy District; the plaintiffs, in the present Suit, were arrayed as defendants 22 to 25 therein; however, on the intervention of mediators, a compromise was arrived at; under the terms of the settlement, the plaintiffs were to relinquish Ac.41.34 gts, and the 1st plaintiff would be left with Ac.9.29 gts; from out of the total extent of Ac.41.34 gts, it was agreed that Ac.10.20 gts of land would be transferred in the name of Sri Ratangapani Reddy i.e., the son-in-law of the first plaintiff; the remaining land was to be given to the 1st plaintiff; an area of land, admeasuring Ac.6.25 gts, had been acquired for the outer ring road; the schedule of payment of money was also incorporated, in the compromise, only to the extent of Ac.25.00 gts; the defendants surreptitiously added therein that the plaintiffs had given up their rights in respect of land admeasuring Ac.9.29 gts in favour of M/s. Bhargavi Constructions, represented by Sri V. Ramachandra Rao, who were not parties to O.S. No.481 of 2007; no compromise could be recorded with persons who were not parties to the suit; immediately after the compromise was recorded in the Lok Adalat, a sale deed was executed on the same day in favour of M/s. Grandbay Estate Developers Ltd and Venezia Estate Developers Ltd., vide document No.8379 of 2007 dated 22.08.2007 in respect of land admeasuring Ac.14.02 gts in Sy. Nos.263 to 270; another agreement of sale with irrevocable GPA dated 22.08.2007 was entered into with Sri K. Ratangapani Reddy in respect of land admea
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