The

captioned

second

appeal

is

filed

by

unsuccessful

plaintiff

who

has

questioned

the

concurrent judgments of the Courts below wherein the

suit filed by the plaintiffs seeking cancellation of the

decree passed in O.S.No.295/1996 is dismissed by

both the Courts.

2.

For the sake of convenience, the parties

are referred to as per their rank before the trial Court.

3

3.

The plaintiff has filed the present suit in

O.S.No.176/1997

by

specifically

contending

that

defendant No.2 who was representing the present

plaintiff in other civil suits has misused the signatures

secured on blank papers and vakalathnama and has

filed the consenting written statement to decree the

suit filed in O.S.No.295/1996. The plaintiff has

specifically contended in the plaint that the signatures

of himself and his brother Ramappa was secured on

blank papers and on vakalathnama to enable one R.M.

Kulkarni to draft the plaint. The plaintiff contends that

defendant No.2 who is an advocate has misused these

blank papers and has filed the consenting written

statement. Therefore, plaintiff has filed the suit

seeking

cancellation

of

the

decree

passed

in

O.S.No.295/96 on the ground the same was obtained

by first defendant against plaintiff by playing fraud

and for consequential relief of injunction against

4

defendant No.1 restraining him from interfering with

plaintiff's possession.

3(a) The first defendant on receipt of summons

tendered appearance and filed written statement and

stoutly denied the entire averments made in the

plaint. The first defendant contended that he is in

lawful possession and enjoyment over the land

bearing survey No.61/1 and as the dispute arose

between the plaintiff and defendant, the matter was

settled before the village elders, wherein the first

defendant has admitted the plaintiff's possession and

title. It is in this background, the first defendant has

filed the suit for declaration and injunction in

O.S.No.295/1996

and

the

plaintiff

filed

O.S.No.29/1997. The first defendant contended that in

O.S.No.295/1996, the plaintiff has independently

engaged a counsel and filed consent written statement

admitting the claim. The defendant has further

5

contended that even in O.S.No.29/97 which was filed

by the present plaintiff, the defendant in the said suit

had also voluntarily appeared without waiting for

summons and filed the consent written statement and

the plaintiff's suit in O.S.No.29/97 was also decreed.

Having succeeded in O.S.No.29/97, the plaintiff

intends to grab the property owned by the first

defendant.

3(b) The second defendant, who is an advocate

and who had represented the present plaintiff in

O.S.No.295/1996 has also filed the written statement.

He has seriously denied the allegations that the

vakalathnama and consenting written statement was

filed by second defendant by playing fraud on the

plaintiff.

3(c) The plaintiff to substantiate his claim

examined himself as P.W.1 and three independent

6

witnesses as P.Ws.2 to 4 and produced documentary

evidence vide Exs.P1 to 30, while defendants 1 and 2

got examined as D.Ws.1 and 3 and one independent

witness as D.W.2 and produced documentary evidence

vide Exs.D1 to 9.

3(d) The trial Court having examined the oral

and documentary evidence led by both the parties was

not inclined to accept the claim made by the plaintiff

in

regard

to

fraud

played

by

plaintiff

in

O.S.No.295/1996. The trial Court held that plaintiff

has

failed

to

prove

that

decree

obtained

in

O.S.No.295/1996 was on account of fraud and

misrepresentation by defendant No.2, who was the

counsel on record on behalf of the plaintiff in

O.S.No.295/1996. The trial Court referring to the

rebuttal evidence more particularly the similar decree

passed in O.S.Nos.29/97, 73/97, 61/97 and 27/97

was of the view that at the instructions of the present

7

plaintiff herein, the second defendant appeared on

behalf of the plaintiff and written statement was filed.

Therefore, the trial Court was of the view that the

plaint