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High Court of Kerala
THE HONOURABLE MR. JUSTICE PIUS C. KURIAKOSE & THE
HONOURABLE MR. JUSTICE N.K. BALAKRISHNAN
K.P. Gopalakrishnan Nair
Versus
The Tahsildar & Executive Magistrate & Others
WA.No. 1959 of 2010
Decided on : 17-02-2011
FRAUD - PROPERTY DISPUTE - [FRAUD] - [Property Dispute] - [S.P.Chengalvaraya Naidu (Dead) by LRS. v. Jagannath (Dead) by LRS. and others [(1994) 1 SCC 1], N.Khosla v. Rajlakshmi (Dead) and others [(2006) 3 SCC 605], Hamza Haji v. State of Kerala and another [(2006) 7 SCC 416], Frank Reddaway and Co. Ltd. v. George Banham, 1896 Appeal Cases 199, Venture Global Engineering v. Satyam Computer Services Ltd. & Anr. [AIR 2010 SC 3371] - The court found that the judgment obtained by the respondent was vitiated by fraud, and the principle of finality of litigation cannot be used to perpetuate fraud. The court relied on various legal principles to establish that fraud avoids all judicial acts and that a decree obtained by playing fraud is a nullity and can be challenged in any court, even in collateral proceedings.
Fact of the Case:
The case involved a property dispute between the appellant and the respondents, which originated from a partition deed in 1975. The dispute centered around the alleged encroachment of a pathway and the demolition of a compound wall by the appellant. The legal representatives of the original property owner filed a suit seeking injunctions and restoration of the compound wall. The appellant contested the ownership and usage of the pathway, alleging fraud and misrepresentation by the respondents.
Finding of the Court:
The court found that the judgments in previous writ petitions and civil suits, as well as the orders of the executing court, operated as res judicata against the contentions raised by the appellant. The court also held that the appellant's actions, including the demolition of the compound wall and influencing survey records, were not justified and amounted to fraud. The court dismissed the appeals and directed the parties to bear their respective costs.
Issues: The main issues revolved around the ownership and usage of the pathway, the validity of the judgments and orders in previous proceedings, and the allegations of fraud and misrepresentation by the parties.
Ratio Decidendi: The court's decision was influenced by the legal principles related to fraud, res judicata, and the finality of litigation. The court emphasized that fraud avoids all judicial acts and that a decree obtained by playing fraud is a nullity and can be challenged in any court, even in collateral proceedings. The court also relied on the principle that judgments of courts of competent jurisdiction are binding until set aside in appeal, and attempted changes in the form of petitions or grounds cannot be allowed to defeat the plea of res judicata.
Final Decision: The court dismissed the appeals, upholding the findings that the judgments and orders in previous proceedings operated as res judicata, and that the appellant's actions amounted to fraud. The parties were directed to bear their respective costs.
Judgment :-
N.K. Balakrishnan, J.
Sri.K.P.Gopalakrishnan Nair, the petitioner in W.P.(C) No.14605/2010 is the appellant in W.A.No.1959 of 2010. The aforesaid Gopalakrishnan Nair and his wife Smt.Lalithakumari are the appellants in W.A.No.1990 of 2010. The litigation between the parties started in the year 1984. Sri.Sreedharan Nair, the father of Sri.Pratap S. Nair and husband of Smt.Ashadevi owned 78 cents of land in Survey No.10211, 1.14 Acre in Survey No.10212 and 85 cents in Survey No.10213 thus, making a total of 2 Acre 77 cents. It was alleged that in 1984, certain persons residing on the western side of the above 2 Acres 77 cents of land attempted to trespass upon a portion of that property in order to form a pathway to go to the public road on the eastern side of that property. Sreedharan Nair thus filed O.S.No.37/1984 before the Munsiff's Court, Kollam seeking a permanent prohibitory injunction restraining those persons from trespassing upon his land. In the aforesaid suit the plaint 'A' schedule property was shown as 85 cents in Survey No.10213. The pathway claimed by the defendants therein was shown as 'B' schedule. Besides, the compound wall on the eastern side was specifically shown as 'D' schedule. Though that suit was dismissed by the trial court, the appellate court in A.S.No.19/1986 reversed the decree and judgment of the trial court and granted a permanent prohibitory injunction as sought for in the plaint as evidenced by Ext.P1 judgment dated 10.7.1989. The Second Appeal No.939/1989 filed by the defendants in that suit was dismissed on 30.7.1998. Sreedharan Nair died. His legal representatives filed E.P.274/2006 to enforce the decree. The compound wall was got constructed on the eastern side of the plaint schedule property therein in terms of the decree passed pursuant to Ext.P1 judgment, under the supervision of the Advocate
Commissioner.
2. Sri.Gopalakrishnan Nair, the appellant herein and his brother owned an extent of 35 cents of land lying immediate to the south of the property held by late Sreedharan Nair shown as 'A' schedule in Ext.A1 suit. A partition was entered into between Gopalakrishnan and his brother in 1975 by which 18 cents of land being the western portion was allotted to Gopalakrishnan Nair. The property measuring 17 cents having road frontage on the east was allotted to the brother of Gopalakrishnan Nair. An attempt was made by Gopalakrishnan Nair to encroach upon a portion of his northern boundary property held by late Sreedharan Nair. For that purpose compound wall lying on the southern side of Sreedharan Nair's property was demolished. It is contended that the very same pathway claimed by the defendants in Ext.P1 judgment was tried to be created again by Gopalakrishnan Nair and it was for that purpose he demolished the southern compound wall of Sreedharan Nair's property and attempted to use a portion of Sreedharan Nair's property as a pathway to proceed to the road on the east. Gopalakrishnan Nair and his wife were not parties to Ext.P1 suit. Hence, Sreedharan Nair filed O.S.No.193/99 against Gopalakrishnan Nair for a prohibitory injunction restraining Gopalakrishnan Nair and his men from trespassing into the property held by Sreedharan Nair and also for a mandatory injunction to restore the compound wall to its original position. Gopalakrishnan Nair remained ex-parte in that suit and consequently Ext.P3, Ex-parte decree dated 9.1.1996 was passed. It is marked as Ext.P5 in W.P.(C)No.14605/2010.
3. The appellant contends that he and his wife have been residing in the building situated in 18 cents of land in Survey No.10214 and that the said property has compound walls on all sides and iron gate on northern boundary for passage to the way on the north. According to the appellant 2.50 Ares (6.178 cents) of government land in Re-Survey No.41 described as "Bhoosthithi way" is part of 84 cents of government land in old Survey No.10210 and it was reserved by the government for road in
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