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2010 Supreme(Raj) 450
[Citation : RLW 2010(2) RJ 1100 (SC)]
(Supreme Court)
S.B.V. Patel & Ors. Vs. N.J. Tiwari & Ors. (Dr. Sharma, J.)
HON'BLE DR. MUKUNDAKAM SHARMA, J.
HON'BLE R.M. LODHA, J.
Shanti Budhiya Vesta Patel & Ors.
Versus
Nirmala Jayprakash Tiwari & Ors.
Civil Appeal Nos. of 2010 (Arising out of SLP (C) Nos. 21108-21110 and D33349 of 2007), decided on 21.04.2010
Headnote:C.P.C., Order 23 Rule 3 — Consent decree — Challenged on the ground that it was obtained by fraud — Burden to prove that a compromise arrived at under Order 23 Rule 3 was tainted by coercion or fraud lies upon the party who alleges the same — Held — If coercion or fraud is alleged, it must be set out with full particulars — Appellants failed to furnish the full and precise particulars with regard the alleged fraud.
(Paras 31, 33, 42)
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2. In the present appeals, the appellants have challenged the legality and validity of the order dated 12.10.2007 passed by the High Court of Judicature at Bombay whereby the High Court dismissed all the three Civil Applications preferred by the appellants herein seeking recall of an earlier order dated 13.06.2006 passed by the High Court which was based on the consent terms duly signed by all the parties.
3. In order to properly appreciate the precise nature and scope of the controversy arising in the present appeals, it would be appropriate as well as expedient to set out a brief statement of pertinent facts. The original appellant, Budhiya Vesta Patel, was the predecessor–in-interest of the present appellants. Budhiya Vesta Patel was appointed as a watchman by one R.K. Tiwari, who was cultivating grass on the suit property since 1954-55, to take care of the suit property and for this a Kachcha shed on the suit property was provided to him. In due course of time, Budhiya Vesta Patel extended the shed to construct a chawl known as Budhiya Patel Chawl consisting of 38 rooms, which were let-out by him.
4. After the death of the real owner of the suit property, Mr. Anant Mahadeo Tambe, husband of Leela Anant Tambe, respondent No. 7 herein, the suit property stood recorded in the name of respondent No. 7. By means of a consent decree passed in Suit No. 1230 of 1992 between respondent No. 7 and M/s. Hitesh Enterprises, respondent No. 8 herein, the latter became the owner of the suit property.
5. In the year 1999, Budhiya Vesta Patel filed a suit against respondent No. 7 and said R.K. Tiwari, the predecessor-in-title of Respondent nos. 1 to 6 herein, before the Bombay City Civil Court, Bombay being Suit No. 5163 of 1999 seeking a declaration that he is the owner of the suit property by adverse possession. Since said R.K. Tiwari also claimed title to the suit property, he also filed a suit.
6. Against this, a counter-claim being Counter Claim No. 11 of 2002 seeking eviction of Budhiya Vesta Patel and his tenants from the suit property was filed by respondent No. 7 and respondent No. 8. The aforesaid suits were contested and on the basis of the pleadings of the parties, issues were framed and evidence was led.
7. The trial Court by its judgment and order dated 10.02.2003 and 11.02.2003 dismissed the suit filed by Budhiya Vesta Patel and allowed the counter claim filed by respondent Nos. 7 and 8. The trial Court negatived Budhiya Vesta Patel’s claim of ownership of the suit property by adverse possession since his initial possession of the suit property was a permissive possession.
8. Aggrieved by the said judgment and order, several appeals came to be filed before the High Court of Bombay. Budhiya Vesta Patel had filed two appeals, being F.A. No. 1388 of 2003 and F.A. No. 1389 of 2003; the former against the dismissal of the suit filed by him and the latter against the decree passed against him in the counter claim. The third appeal being, F.A. No. 1390 of 2003, was preferred by one Yusuf Vali Mohd. Bilikhiya (respondent No. 9 herein), who was the Power of Attorney holder of Budhiya Vesta Patel. Respondent Nos. 1 to 6 also filed an appeal against the judgment and order of the trial Court which was registered as F.A. No. 1523 of 2003. However, subsequently, the same was withdrawn.
9. During the pendency of the aforesaid appeals, Budhiya Vesta Patel died on 05.12.2004. On 07.01.2005, each of the present appellants executed an irrevocable Power of Attorney in favour of respondent No. 9. On the basis of the said Powers of Attorney, respondent No. 9 filed three separate applications being Civil Application Nos. 3180 of 2005, 3181 of 2005 and 992 of 2005 in the aforesaid three appeals wherein he prayed that the legal representatives of Budhiya Vesta Patel, i.e., the appellants be brought on record in all the three appeals in place of Budhiya Vesta Patel.
10. On 26.04.2006, the appellants executed a Power of At
