JUDGMENT:

1. Heard Mr. P. A. Kamat for the Appellants, Mr. J. P. Mulgaonkar, learned Senior Advocate who appears along with Ms. Rupa Banaulikar for Respondents No.1 and 2, Ms. Susan Linhares, learned Additional Government Advocate for Respondent No.15 and Mr. A. R. Kantak who appears along with Mr. R. Kantak for Respondent No.18.

2. This appeal is directed against the Judgement and Decree dated 05.03.2007 dismissing the Civil Suit No.100/2004, instituted by the appellants-plaintiffs seeking decree to declare the sale deed dated 20.11.1996 and the rectification deed dated 08.08.1997 as illegal, null and void and also seeking decree to declare the consent decree dated 14.07.1997 made in Inventory proceedings No.2/1995 as illegal, null and void. Further reliefs concerning deletion of entries in survey records and for permanent injunction were also claimed in the suit.

3. Based on the pleadings in the suit, the Trial Court, was pleased to frame only the following issue:-

“Whether the Plaintiff proves that Sale Deed dated 20/11/96 deed of rectification dated 8/8/97, order in inventory proceedings and mutation in survey records were obtained by exercise of fraud?”

4. By the impugned Judgment and Decree, the Trial Court has answered the aforesaid issue against the appellants herein and dismissed the suit. Hence the present appeal.

5. Mr. P. A. Kamat learned counsel for the appellants submitted that several grounds were raised in the suit to challenge the sale deed, the rectification deed, and the consent decree. However, the learned Trial Judge has only addressed the ground of fraud, thereby, ignoring the other grounds raised in the plaint. He submits that even on the issue of fraud, the learned Trial Judge has misconstrued the evidence on record and failed to draw the correct inferences. Mr. Kamat further submitted that the evidence on record, in this case, had very clearly established that no consideration whatsoever was paid to the plaintiffs and this aspect has been completely glossed over by the Trial Court. He submits that the circumstances borne out from the evidence on record have not at all been cumulatively considered by the Trial Court and this is an error that warrants interference with the impugned Judgment and Decree. He submits that the position in law about the role of the Cabesa de Casal has been completely ignored by the Trial Court. He submits that the incorrect principle of devolution of the property has been applied by the Trial Court. He submits that the provisions of the Portuguese Civil Code have been completely ignored by the Trial Court. He submits that the learned Trial Court has simply refused to look into the allegation of fraud committed by the advocate and its impact on the challenged documents by observing that these are matters which are to be looked into by the Bar Council of India. He submitted that the Bar Council of India can at the highest punish the advocate for the misconduct but it is only the Civil Court, that was empowered to go into the issue as to whether fraud was committed by the advocate, which resulted in the purchase of properties by him, vitiated such purchase or rather the sale deed dated 20.11.1996 and rectification deed dated

08.08.1997.

6. For all these reasons Mr. Kamat submits that the impugned Judgment and Decree be set aside and the suit be decreed. In the alternate, Mr. Kamat submits that the impugned Judgment and Decree be set aside and the matter be remanded to the Trial court for fresh consideration of all the issues that arise in the suit.

7. Mr. Mulgaonkar learned counsel for respondents no.1 and 2 defended the impugned Judgment and Decree based on the reasoning reflected therein. He submits that the pleadings in the suit were not in accord with the provisions of Order 6 Rule 4 of the Code of Civil Procedure and therefore, even the issue of fraud was not required to be gone into in the suit. He submits that in any case the fraud, even in a civil suit, is required to be establi