G. Narendra, J.@mdash1. This is a defendants'' appeal being aggrieved by the judgment and decree granted by the Court of III Additional Senior Civil Judge, Hubli in O.S. No. 348/2012 dated 02.03.2015 partially decreeing the suit of the plaintiff for declaration and possession of the suit schedule property as claimed by the plaintiff who is the 1st respondent herein. The plaintiff had not sought any relief against the defendant Nos. 3, 4 and 5 nor has the Trial Court granted any relief. The appellants have not arrayed the said defendants as necessary parties - respondents before this Court.
2. For the purpose of convenience, the parties are hereinafter referred to by their nomenclature before the Trial Court.
3. The case of the plaintiff is that she was the beneficiary of an order of an allotment by the Hubli Dharwad Development Authority, who by virtue of their proceedings dated 22.10.1994 conveyed the suit schedule property but she was put in possession and enjoyment prior to the said date. That she commenced construction with the help of her husband in the year 1989-90 and had stored necessary construction material within the suit schedule property. But on account of unexpected and untimely death of her husband on 29.04.1990, the plaintiff''s life took a tragic turn and as she had to single handedly bear the burden of the family commitments like education of children etc., she could not proceed further with the proposed construction.
4. It is contended that the 1st defendant who was an immediate neighbour and a good friend of her late husband tried to take undue advantage of the situation, created on account of untimely demise of her husband, and convinced the plaintiff to give him free of charge the construction material stored by her in the suit schedule property with the promise that he would supply the same when she recommenced the construction.
5. It is further contended by the plaintiff that after a gap of 5 to 6 years, the 1st defendant colluding with his son and son-in-law started pressurizing her to convey the suit schedule property to them and in order to achieve the same, they tried to gain her confidence and when she resisted they started to harass and humiliate her. It is further alleged that they entered into a criminal conspiracy and conspired to finish off the plaintiff by using one of their henchmen/servant and that they kept a secret watch on her movements and ultimately on 25.01.1997 when the plaintiff was coming out of the City Corporation of Hubli around 11:00 a.m. a brutal attack was mounted upon her and the assailant emptied a big bottle of acid and when the attack was happening, she identified the presence of the 1st defendant and 2nd defendant in the vicinity.
6. It is contended by the plaintiff that passersby came to the rescue and rushed her to the nearby hospital where she was given first aid by a Doctor by name Vivek Gurubasappa Yalamali. The said Doctor after administration of first aid, immediately referred her for further treatment to KMC, Hubli, where she was admitted as an inpatient in the ICU between 25.01.1997 to 27.01.1997 and at around 03:00 p.m. The jurisdictional Police apprehending some eventuality recorded her statement in the presence of Doctor and that she had specifically named the defendant Nos. 1 and 2 and also the unnamed assailant.
7. It is further contended that as her condition did not improve, she was shifted from KMC Hospital, Hubli to KMC Hospital, Manipal in the early hours at about 04:00 a.m. on 27.01.1997 and on reaching Manipal Hospital plaintiff was admitted into the ICU and she remained there from 27.01.1997 to 12.03.1997. Thereafter, she has been undergoing surgical procedures one after the other and she was struggling between life and death. It is further contended that she resided in several places like Bhadravati, Bengaluru, Mysore and Manipal on account of the treatment advised by Doctors in the various Hospitals at various places and that she was in Manipal, as recently as 03.05.2012. It is also contended that on account of the barbaric acid attack, she is now constrained to consume medication throughout her lifetime and that till May 2012, she has been fighting one medical complication or the other in order to survive and that now she has successfully negated the after effects of the acid attacks on account of the continuous medication.
8. It is averred by the plaintiff that in the month of July/August 2012, she tired to pay up the tax dues in respect of the suit schedule property and in this regard she approached the 4th defendant who refused to receive the payment on the premise that the taxes are being paid by the 1st defendant. It is the further case of the plaintiff that when she made a further enquiry, she was informed that the defendant Nos. 1 to 3 had colluded and conspired and deliberately got created/fabricated the GPA dated 31.01.1997 allegedly empowering the 2nd defendant to Act on her behalf in respect of the suit schedule property. The plaintiff specifically contended that on the alleged date of 31.01.1997 being the date of the GPA, she was virtually on the death bad and lying unconscious in the KMC Hospital at Manipal. But the defendants got up the fraudulent GPA and have forged her signature on the said document. It is stated that though the GPA is said to have been created in the year 1997, a sale deed came to be executed in favour of the 1st defendant by the 2nd defendant on the strength of the said GPA in the year 2008 only. The plaintiff alleges that the said Act of execution of the sale deed dated 05.09.2008 that too after a gap of 11 years from the date of execution of the alleged GPA is a fraudulent act and the GPA and sale deed are vitiated by fraud. It is further alleged by the plaintiff that upon coming to know about the fraudulent act by which the defendants had tried to extinguish her valuable right in the suit schedule property, she approached the 1st defendant for amicable settlement on 18.08.2012. But the said defendants and the other son-in-law and two unknown persons threatened the plaintiff and told her that the suit schedule property had been sold to them by her late husband in the year 1990 itself and that if she made an attempt to enter the suit schedule property, they would not hesitate to finish her off. Agitated by this threat, she lodged a complaint with the jurisdictional Police, who turned her away stating that this is a civil matter and being left with no other option, she got issued a legal notice on 21.08.2012, calling upon the 1st defendant to deliver vacant possession of the suit schedule property and to tender an apology within 15 days from the date of the receipt of the legal notice. But the defendants did not comply with the same, but got issued a reply notice through their counsel by fabricating a false story that one Ashok A. Patil of Belgaum had issued a notice on behalf of the plaintiff allegedly on 25.04.2009 admitting facts contrary to the truth and that said notice dated 25.04.2009 came to be replied by the 1st defendant on 07.05.2009. It is asserted by the plaintiff that the said Advocate Ashok A. Patil, who was arrayed as defendant No. 5 is a stranger to her and that she had neither met him nor instructed him to issue the alleged legal notice dated 25.04.2009. In a sense, she alleges that the legal notice dated 25.04.2009 and 07.05.2009 are concocted and fabricated documents and hence, she is arraying the said Advocate also as a party to the proceeding.
9. It is contended by the plaintiff that the cause of action in the suit arose from the date of creation of the forged and fabricated GPA dated 31.01.1997 and thereafter again on 05.09.2008 when the sale deed came to be executed in favour of the 1st defendant by the 2nd defendant on the strength of the fraudulent GPA and when the same came to her knowledge in July/August 2012.
10. On service of notice from the Trial Court, the defendant Nos. 1, 2 and 3 appeared through their counsel. The defendant Nos. 1 and 2 have jointly preferred a written statement. In the written statement from para 1 to 13, the defendants have merely denied the plaint averments and the circumstances, pleaded on behalf of the plaintiff, they have denied the cause of action also. In paragraph 14 of the written statement, the contention regarding limitation is also raised. In fact, it is specifically averred that the suit is hit by the law of limitation, more particularly the provision of Article 59 of the Limitation Act and that as the possession of the suit property was handed over on 10.08.1990 itself and hence, the suit is hopelessly barred by limitation.
11. That, apart from the above date, even as per the plaint pleadings, the plaintiff became aware about the sale of the property on 05.09.2008 itself and the suit having not been preferred within 3 years from the said date on 05.09.2008 as per the provisions of Article 59 of the Limitation Act, the suit is liable to be rejected as one being barred by limitation. It was also prayed that the Trial Court take up the issue of limitation, as a preliminary issue, as it is only a pure question of law.
12. The defendants have also disputed the valuation and the correctness of the Court fee paid. It is contended that the Court fee is required to be paid on the market value of the suit property as per Section 24A of the Karnataka Court Fees and Suits Valuation Act, as the plaintiff is not in possession of the suit schedule property.
13. The defendants have set out their version in paragraph 15(a) and 15(b) of the written statement. It is contended that the plaintiff was facing acute financial problems and to overcome the said financial crisis, she intended to sell the suit schedule property and as the 1st defendant offered the market price, the plaintiff considering the same agreed to sell the suit schedule property to the 1st defendant and in pursuance thereof, an agreement of sale deed dated 10.08.1996 came to be executed between the parties and the 1st defendant paid a sum of Rs. 1,20,000/- which reflected the then prevailing market price of the suit schedule property and as a consequence of the sale agreement and receipt of the entire sale consideration, the plaintiff put the 1st defendant in possession of the suit schedule property as a prospective purchaser till the sale deed was executed. It is further contended that as the plaintiff had to obtain permission from the competent authority to alienate the suit property, the parties could not formalize the sale at that point of time itself and the plaintiff had also agreed to obtain the permission and execute the sale deed later. But subsequently the plaintiff who was facing a threat to her life, was assaulted and acid was poured on her, as a result of which she shifted her residence to Belgaum. It is contended by the 1st defendant that he had got issued a legal notice through his counsel on 20.11.1997 to the plaintiff, but the said notice came to be returned with the postal endorsement as "not claimed".
14. It is averred by the 1st defendant that the plaintiff used to correspond with the 1st defendant expressing her intention to come to Hubli and execute regular sale deed in his favour as agreed upon by her. Thereafter, the plaintiff realizing her inability to travel to Hubli and execute the regular sale deed, she appointed 2nd defendant as power of attorney by executing GPA on 31.01.1997. Subsequently, as the plaintiff felt that she was not in a position to attend the Sub-Register''s Office to execute the sale deed, she requested her attorney to execute the sale deed in favour of the 1st defendant. Accordingly, the 2nd defendant executed a registered sale deed in favour of 1st defendant on 05.09.2008 and the 1st defendant incurred the registration charges and expenses. After the execution of the sale deed, the 1st defendant put up a shed in his plot and he is enjoying the same and the defendant No. 1 is paying the Municipal Tax with regard to the said properties and on these grounds, it is urged that the suit be dismissed.
15. The Trial Court on the above pleadings, framed the following 9 issues:
"i) Whether the plaintiff proves that she is the owner of the schedule property?
ii) Whether the plaintiff proves that the defendants are illegally trespassed into the schedule property and continued the said possession?
iii) Whether plaintiff proves that the GPA dated 31.01.1997 and the sale deed dated 05.09.2008 are the forged and fraudulent documents?
iv) Whether the defendants prove that the plaintiff by receiving the consideration amount executed GPA dated 31.01.1997 in favour of the defendant No. 2?
v) Whether the plaintiff proves that the defendants in alternative liable to pay Rs. 25,00,000/- with interest at the rate of 24% p.a.?
vi) Whether the plaintiff proves that the defendants are liable to pay the mesne profit at the rate of Rs. 1,00,000/- per month?
vii) Whether the defendants prove that the suit of the plaintiff is barred by limitation?
viii) Whether the plaintiff is entitled for the reliefs claimed in the suit?
ix) What order or decree?"
16. The Trial Court while answering the issues, answered the issue Nos. 1, 2 and 3 in the affirmative and issue Nos. 4, 5 and 6 in the negative and issue Nos. 7 and 8 partly in the affirmative. Aggrieved by the impugned judgment and decree, the defendant Nos. 1 and 2 are in appeal before this Court.
17. The parties went to trial on the above issues and the plaintiff got examined herself as P.W. 1 and got marked Exs. P-1 to P-41. On behalf of the defendants, the 2nd defendant was examined as D.W. 1 and the documents Exs. D-1 to D-21 were marked.
18. That apart, D.Ws. 2 and 3 who claimed to be the attestors of the agreement dated 10.08.1996 were also examined on behalf of the defendants. The Trial Court after hearing the arguments and after examining the evidence adduced on behalf of the parties was pleased to render the impugned judgment and decree, whereby the suit of the plaintiff was partially decreed by ordering and decreeing that the GPA dated 31.01.1997 is a created document and consequently under the sale deed dated 05.09.2008 executed by defendant No. 2, the defendant No. 1 has not acquired any title over the suit schedule property and that the sale deed is not binding on the plaintiff nor is any title conveyed over the suit schedule property. Consequentially, the defendant No. 1 was directed to deliver the possession of the suit schedule property to the plaintiff within two months. The Trial Court was pleased to reject the other prayers regarding the mesne profits etc. The Office was also directed to forward a copy of the decree to the Office of the Senior Sub-Register, Hubli to make necessary entry regarding cancellation of the sale deed dated 05.09.2008 registered as document No. 4972.
Rival contentions:
19. It is primarily contended by the appellants that the suit is hopelessly barred by limitation. He would draw the attention of this Court to Article 59 of the Limitation Act. He would submit that the Trial Court erred in holding the issue No. 7 in favour of the plaintiff. It is contended that the GPA is dated 31.01.1997 and that the possession of the suit schedule property was obtained on 10.08.1996 and the sale deed was executed on 05.09.2008 and it is these three dates which are relevant for concluding regarding the maintainability of the suit. In the light of the Article 59 of the Limitation Act, as the relief prayed for in the suit pertains to one of declaration regarding the validity of the GPA dated 31.01.1997 and the sale deed dated 05.09.2008 executed on the strength of the said GPA, it is contended that the suit ought to have been preferred within 3 years as provided under Article 59 of the Limitation Act and that the possession and relief ought to have been sought within 12 years and the reckoning dated would be 10.08.1996. The provisions of Articles 59 and 65 are reproduced below for the sake of convenience.
20. Learned counsel would contend that neither the relief of declaration is sought within the period of three years from the date of reckoning i.e., 31.01.1997 and 05.08.2009 nor is the relief possession sought within 12 years from the reckoning date i.e., 10.08.1996 and hence, the suit is hopelessly barred by limitation and the plaintiff ought to have been non-suited. It is further contended by the appellants that the plaintiff has not demonstrated that she has been in possession of the property within 12 years prior to institution of the suit. It is contended that the suit is not instituted within 3 years from the date of the sale deed as mandated under the Limitation Act and as evidenced by Ex. D-3 dated 25.04.2009, a legal notice said to have been addressed by the 4th defendant on behalf of the plaintiff. Hence, the suit for declaration and possession ought to have been filed on or before 24.04.2012 but in the instant case, the suit has been instituted only on 10.10.2012 and hence the same is barred by limitation under the provisions of Article 59 of the Limitation Act. He would also draw the attention of the Court that Ex. D-4, which is purported to be a reply, to the legal notice Ex. D-3. The counsel for the appellants would also draw the attention of the Court to Ex. D-10 purportedly a letter dated 08.08.1997 said to have been addressed by the plaintiff to the 1st defendant, wherein she is said to have requested an additional sum of Rs. 25,000/- to Rs. 30,000/- and hence, he would submit that from the very contents of the letter it could be inferred that the plaintiff had indeed executed the sale agreement and the receipt of sale consideration and that she was only demanding an extra amount over and above the agreed rate and hence, a presumption ought to have been drawn in favour of the defendants with regard to the validity of the documents which are portrayed and sought to be declared as void.
21. It is contended that the plaintiff has made false allegations of involvement of the appellants in the assault on her only with a view to prejudice the Courts and to extort more money and it is the sole intention behind the suit, as the value of the property has multiplied many folds. He would contend that the plaintiff has miserably failed to demonstrate that the GPA is a fabricated and forged document. He would contend that the GPA is produced as Ex. P-41 and it is only a xerox copy of the original and hence, the Trial Court erred in admitting the same and rendering a finding regarding the validity and legality of the same. While considering and rendering the finding on issue No. 3, he also contended, that the Trial Court erred in not properly appreciating the deposition and evidence of D.Ws. 2 and 3 and it would demonstrate passing of consideration and execution of the sale agreement dated 10.08.1996. It is further contended that on behalf of the appellant, that the plaintiff has categorically admitted the receipt of consideration in the course of cross-examination and that admission has not been properly appreciated by the Trial Court.
22. Per contra, the learned counsel for the respondent - plaintiff would contend that the burden of proving the valid execution and legality of the GPA was on the 1st and 2nd defendant and they have miserably failed in discharging the burden of proving the valid execution of the GPA. He would contend that the Court has rightly drawn an adverse interference against the defendants for having failed to produce the original GPA and the alleged sale agreement. More so after admitting that the said documents were in the possession of the 1st defendant. He would further contend that the limitation starts running from the date of acquisition of knowledge and in the instant case, he would submit that the said documents came within the knowledge of the plaintiff only during the month of July/August 2012, as has been specifically pleaded in the plaint and deposed in the course of evidence. He would further submit that the plaintiff acquired knowledge of Exs. D-3 and D-4 only on receipt of the reply notice, got issued by the 1st defendant on 31.08.2012. Hence, suit got instituted immediately thereafter in October 2012 is well within the time and not barred by limitation. He would contend that Ex. D-3 does not bear the signature of the plaintiff. He would also deny that Ex. D-10 has been addressed by the plaintiff. He would contend that none of the exhibits have been properly demonstrated and proved by adducing cogent evidence. He would contend that neither the execution of the sale agreement nor the execution of the GPA have been demonstrated in the manner known to law. He would contend that the very plea that the GPA was executed on 31.01.1997 is sufficient to demonstrate the fraud perpetrated by the defendants. He would contend that on the said date, the plaintiff was battling for her life and was confined to the bed in the Intensive Care Unit of KMC Hospital at Manipal which is several hundred kilometers from the place where the said GPA is alleged to have been executed. He would contend that the fraud perpetuated is proved by the admission of the 2nd defendant in the course of cross-examination, wherein he has admitted that he does not know where the plaintiff was staying or residing on the date of execution of the GPA i.e., 31.01.1997.
23. In view of the above rival contentions, the core issues that call for appreciation and consideration by this Court are:
"1. Whether the suit of the plaintiff is barred by limitation?
2. Whether the GPA dated 31.01.1997 Ex. P-41 is a fabricated and forged document and hence a void document? If so what is the consequence to follow?
3. Whether the defendants have been successful in demonstrating their case of execution of agreement of sale deed dated 10.08.1996 and the passing of the sale consideration?"
Limitation:
24. It is relevant to note that defendant Nos. 1 and 2 filed joint written statement. This is perplexing from the viewpoint that defendant No. 2 has neither claimed any interest nor any title with reference to suit property. Defendant No. 1 has neither entered into the witness box nor conclusively established his inability or incapability to participate in the trial.
25. It is the case of the plaintiff that she suffered an acid attack on 25.01.1997 and the initial records, namely wound certificate, maintained and issued by KMC Hospital, Hubli suggests that the plaintiff had suffered 55% to 60% acid burn injuries. It also records that burn injuries are found on scalp, left ear, left cheek, neck, front of the chest, part of the abdomen, upper back, part of lower back, both upper limbs. In fact the KMC, Hospital, Hubli indoor case sheet, in the history column, it is stated that, acid thrown by known person who has been arrested. It is also her case that, as the higher treatment was suggested, she was shifted in the early hours of 27.01.1997 to Kasturba Hospital, Manipal and that she was an inpatient till 12.03.1997. The above facts are evidenced by Exs. P39 and 40. It is her further case that, after discharge from the Kasturba Hospital, Manipal, she travelled to various places like, Mysore, Bangalore, Badravati and again to Manipal lastly in the year 2012. Her case was that she was required to travel to various places to undergo treatment both invasive and non-invasive, to remedy the sufferings on account of acid attack. It is further asserted by her that, she came to Hubli only in the month of July/August 2012 and only then she came to know about the fact of transfer of the suit schedule property, that is, when she approached the Corporation authorities for updating tax dues and thus it was asserted, that this fact came to her knowledge only in the month of July/August 2012. A perusal of her cross-examination does not yield any admission contrary to this fact, more pertinently there is not even a suggestion about her having visited Hulib/Dharwad on an earlier occasion between April 1997 to June 2012. Neither the written statement nor the deposition of D.W. 1 or D.Ws. 2 and 3 assert and demonstrate the fact that the transfer of the property and execution of the GPA were within the knowledge of the plaintiff prior to July/August 2012. Much reliance is placed on Ex. D1, which is alleged to be a legal notice dated 20.11.1997 said to have been issued on behalf of appellant No. 1. In the written statement and deposition, it is claimed that defendant No. 1 addressed a letter to the plaintiff to her residence at Belgaum and that the same was returned as not claimed. A perusal of the postal cover would demonstrate that the said pleadings and deposition is incorrect. The postal shara reads "left not known". Interestingly, a careful reading of the legal notice would demonstrate two facts, i) there is no mention of GPA and ii) there is an assertion about sale agreement and that if the recipient (plaintiff) fails to execute the sale deed within 15 days from the receipt of the same, they would initiate legal proceedings. It is notable to observe that the sale agreement is conspicuous by its absence before the trial Court. Admittedly, the postal cover has been returned and no evidence has been let in to demonstrate that issuance of legal notice was within the knowledge of the plaintiff.
26. The next material evidence, upon which much reliance is placed is, Ex. D3, a legal notice said to have been caused on behalf of the plaintiff to defendant No. 1. The said legal notice is dated 25.04.2009. The author of the said legal notice is arrayed as defendant No. 5 before the trial Court. Though the said advocate/defendant No. 5 is well aware about the pendency of the proceedings as he was also served with suit summons, he did not participate in the proceedings to controvert the allegations made by the plaintiff. On the contrary, he got issued a legal notice terming the allegations, per-se defamatory and harmful to his career and demanded compensation of Rs. 5,00,000/- failing which, plaintiff was put on notice that he would proceed against her in the Court of law, which also has not materialised.
27. Though the appellants counsel lay much importance to Ex. D3, he was unable to answer as to why the author of the said notice was not examined. Admittedly, Ex. D3 does not carry the signature of the plaintiff and in fact she has stated in her pleadings that the said advocate (defendant No. 5 in the suit) is a total stranger and that she had never visited him at any point of time much alone instruct him to cause the notice. That apart, a detailed perusal of Exs. D1 and D4 would clearly show that there is not even a whisper about the plaintiff having come to Hubli. On the contrary, the contents of para 4 of the reply notice, which reads as follows:
"Subsequently, your client faced threat to her life by some of the miscreants, who poured acid to her. As such she went to Belgaum and stayed there. Your client was used to correspond with my client expressing her intention to come to Hubli to execute the regular sale deed in favour of my client."
28. The underlining portion only probabilize the case of the plaintiff that she never visited Hubli prior to July/August 2012. In fact it is admitted in the notice that the plaintiff only used to correspond with defendant No. 1. It is also relevant to note that none of these documents are addressed to defendant No. 2. Though certain discharge cards of a private hospital are produced at Exs. P19 and 20 as stated above, nothing has been placed on record to demonstrate the inability or incapacity of defendant No. 1 to participate in the proceedings before the trial Court. Hence, the uncontroverted plea and deposition of the plaintiff carries substance and this Court concludes that the plaintiff came to know about the GPA and sale deed only on July/August 2012. In fact one another fact which lead this Court to infer adversely against defendant Nos. 1 and 2 is, non production of original GPA and so called sale agreement which has been admitted by defendant No. 2 during his cross-examination to be in the possession of defendant No. 1. One another document Ex. D10, the letter dated 08.08.1997, is also produced on behalf of the defendants. The said letter is addressed to defendant No. 1 and neither defendant No. 1 nor anybody authorized on his behalf have spoken about the said letter, though it has got marked through D.W. 1/2nd defendant. Admittedly, defendant No. 2 has no interest in the schedule property apart from having acted as an attorney of the plaintiff. Suppressing the material evidence and facts from the Court by them constitutes a fraud upon the Court. Hence, we answer the question regarding limitation against the appellants and accordingly, we hold that the suit is within time. The suit filed by the plaintiff is not barred by limitation and is well within the time.
Void document:
29. The primary contention of the plaintiff is that the GPA alleged to have been executed by her is a got-up document, forged and fabricated document and hence the said document being vitiated by forgery and fraud is liable to be declared as a void document. It is seen that the claim of the defendants is that the said GPA was executed by the plaintiff on 31.01.1997 before a Notary Public at Dharwad. It is stated by D.W. 1 in the cross-examination that, they went to the office of the Notary on the invitation of the plaintiff and that he was intimated through phone and he does not know from where she had called. He admits that the original document of GPA could be with defendant No. 1 and that he has not made any attempt for production of the same before the Court. He further admits that he does not remember the date on which the GPA was executed. He admits that required stamp papers were brought by defendant No. 1. In the cross-examination, he states that he has seen the GPA and since he does not know English, the GPA was prepared in Kannada. He has deposed as under:
30. In one breath he says that he has seen the GPA after execution and contraverts himself again saying that he has not seen the GPA from the date of execution and after handing over the same to defendant No. 1. More interestingly, he states that he does not know what defendant No. 1 has done on the basis of the GPA. He has also admitted that he does not remember the contents of GPA. In fact he admits that he does not know where the plaintiff was living at the time of execution of the GPA and thereafter. On the contrary, it has been specifically pleaded by the plaintiff that she was admitted to the Intensive Care Unit of Kasturba Hospital on 27.01.1997 and she was discharged from the said hospital only on 12.03.1997. The said hospital and the alleged place of execution of the GPA, i.e., Dharwad city are several hundreds kilometers apart. Exs. P39 and 40 clearly corroborate and establish the case of the plaintiff. No material is placed by the defendants to demonstrate that on any date, that is between 21.01.1997 to 12.03.1997, more particularly, on 31.01.1997 the plaintiff was present in Dharwad to execute the said GPA. Exs. P39 and 40 clearly demonstrates the fact that the plaintiff had suffered extensive burn injuries on account of the acid attack and that she was in a critical condition. No prudent person would have travelled several hundreds kilometers for the sake of executing the GPA. The fact that the said document is also suppressed before the Court would only enable this Court to draw an adverse inference. In fact Ex. P41 is a xerox copy obtained by the plaintiff from the Corporation authorities and even to the naked eye, it appears that the signature of the plaintiff on the said document did not match to the admitted signature of the plaintiff in the vakalath and the plaint.
31. In the above facts and circumstances, this Court is of the considered opinion that the plaintiff had demonstrated by cogent evidence, that on the date of execution of GPA, i.e., on 31.01.1997, she was in the ICU at Kasturba Hospital, Manipal. On the contrary, the defendants have miserably failed to demonstrate that she had visited Dharwad and appeared before the said Notary and executed the said GPA. The other factor which also probabilize the case of the plaintiff are Exs. D2 and D10. Ex. D1 is the legal notice dated 20.11.1997 and in the said letter, there is not even a whisper about the said GPA. On the contrary, it has been positively asserted by defendant No. 1 in the evidence that, if she failed to comply with the legal notice and execute the sale deed, he would be constrained to have the sale deed executed in his favour by the process of the Court. In the event, the alleged GPA was indeed executed and available on 31.01.1997 itself and defendant No. 1 had proceeded to get the sale deed executed on the strength of the same in the year 1997 itself or at least after issuance of notice it would have atleast had a cloak of respectability. That apart, no explanation is forthcoming as to why, despite the said GPA in their possession from 1997 onwards, the sale was executed only 12 years after the date of execution of the GPA. All the above factors would go to demonstrate that the GPA is a got-up document and fabricated one for the purpose of getting the sale deed executed in favour of defendant No. 1. No person who witnessed the execution of the GPA has been examined. In fact the specific assertion on behalf of the plaintiff before this Court and before the authorities is that the GPA is a forged and fabricated document. The plaintiff has denied that she has executed the said document and also denied the signature on the said document. The defendants have not resorted to the measures available in law to demonstrate the signature of the plaintiff. Despite the said document being in their possession, they have deliberately withheld the same from the Court.
32. The Hon''ble Apex Court in the case of Meghmala and Others v. G. Narasimha Reddy and Others reported in , (2010) 8 Supreme Court Cases 383, wherein the Hon''ble Apex Court quoting its own judgment in the case of Shrisht Dhawan V. Shaw Bros reported in , (1992) 1 SCC 534, wherein it is held as follows:
"20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct."
33. The Hon''ble Apex Court further quoting its judgment in the case of United India Insurance Co. Ltd., V. Rajendra Singh reported in , (2000) 3 SCC 581, has held that,
"Fraud and justice never dwell together" (fraus et jus numquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries."
34. In paragraph 32 of the said judgment, it is held that,
"the ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud."
35. For the purpose of ready reference paragraph Nos. 30 to 36 are extracted hereunder.
"30. In Shrisht Dhawan v. Shaw Bros, it has been held as under. (SCC p.553, para 20)
"20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct."
31. In United India Insurance Co. Ltd. v. Rajendra Singh, this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, Union of India v. M. Bhaskaran, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, State of Maharashtra v. Ravi Prakash Babulalsing Parmar, Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company and Mohammed Ibrahim v. State of Bihar).
33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. (Vide (Dr.) Vimla v. Delhi Administration, Indian Bank v. Satyam Fibres (India) (P) Ltd., State of A.P. v. T. Suryachandra Rao, K.D. Sharma v. SAIL & Central Bank of India v. Madhulika Guruprasad Dahir).
34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Changalvaraya Naidu, Gowrishankar v. Joshi Amba Shankar Family Trust, Ram Chandra Singh v. Savitri Devi, Roshan Deen v. Preeti Lal, Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education and Ashok Leyland Ltd. v. State of TN).
35. In Kinch v. Walcott, it has been held that:
"....mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury."
Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.
36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."
36. It has been categorically held by the Apex Court that no person can be permitted to benefit on account of breach or misrepresentation played by him or her. In that view of the matter, this Court is of the considered opinion that the defendants have indeed played a fraud in the guise of GPA and the same being vitiated by fraud. This Court does not hesitate to conclude that the said document is a void document.
37. The fulcrum of the defence is that the GPA is admittedly in the possession of defendant No. 1 in whose favour the suit schedule property conveyed on the strength of the GPA. But sadly defendant No. 1 has neither examined himself nor placed on record the said vital document before the Court. In fact, it appears to this Court that the defendants have actively screened the said document from the scrutiny of the Court. The Hon''ble Apex Court in the case of Rani Aloka Dudhoria and Others v. Goutam Dudhoria and Others reported in , (2009) 13 Supreme Court Cases 569 has held as follows:
"Fraud as is well known vitiates all solemn acts. Suppression of a document, it is also trite, may amount to fraud on the court. The effect of commission of fraud must be taken note of."
38. The Apex Court has further held that, even not producing the document is tantamount to fraud. In the facts and circumstances of the case, this Court is of the considered opinion that, non-production/screening of the alleged GPA from the scrutiny by the Court, is an act of suppression of material evidence from the Court. Hence, we are constrained to conclude that the said GPA is vitiated by fraud and it is a void document. Once it is held that the said GPA is void document, the sale deed executed by defendant No. 2 in favour of defendant No. 1 by and on behalf of the plaintiff, as attorney, must conclusively fail and is executed by a person without authority of law and by a person having no title to convey. Hence, we hold that the said GPA is a result of fraud played upon by the defendants against the plaintiff. Though the appeal is by the defendants who relied upon the GPA, this Court is of the considered opinion that, as the GPA dated 31.01.1997 is a result of fraud perpetuated by defendant Nos. 1 and 2, the said document is required to be declared as a void document in the interest of justice. Hence, the said issue is answered holding that the GPA to be a void document and consequently the sale deed is non-est in the eye of law and void ab initio and does not convey any title, right or interest to defendant No. 1.
Sale agreement and passing of sale consideration:
39. The third issue formulated for consideration is, whether the defendants have alternatively proved the execution of the alleged sale agreement dated 10.08.1996, under which defendant No. 1 seeks shelter as a prospective purchaser and in fact, he has pleaded that he has paid entire sale consideration of Rs. 1,20,000/- and the plaintiff had received the same and concluded the sale agreement dated 10.08.1996. In fact D.W. 2 in his examination-in-chief at paragraph No. 2 has states as follows:
40. The plaintiff is the absolute owner of the suit schedule property. He states that he witnessed the execution of the sale agreement and payment of sale consideration. But in the cross-examination, he admits that he does not remember if he has signed the agreement as witness or not. He also admits that he does not know who are the other witnesses who signed the agreement. He admits that he has signed as a witness to the sale deed executed in the year 2008 in favour of defendant No. 1. But yet again he does not know who attested the signature as witness to the said sale deed. The other witness D.W. 3 has admitted that he has been brought by defendant No. 1''s son-in-law. He also admits that the son-in-law of defendant No. 1 is a long time acquaintance. He also admits the presence of defendant No. 1''s son in the Court. He also admits that he regularly visits defendant No. 1 at his residence and defendant No. 1 also keeps visiting him. But both witnesses denied knowing the plaintiff. More importantly, D.W. 3 states as follows:
41. Though two witnesses have been examined to speak about the execution of the sale agreement, the said document itself has not been produced before the Court. The law requires that, if a document to be proved, the said document ought to be placed before the Court. The pleadings and deposition are of no avail to demonstrate the said fact. Once it is admitted that the document is in the possession of the party and it has not been marked and produced during the trial for examination by the Court and by the opposite party, in the absence of the said document, the pleadings and deposition pale into insignificance as the case of the defendants is that it is a written contract not a oral contract. Once it is pleaded that the contract is a written contract and it is admitted to be in the possession of the party to the proceedings, production of the same before the Court and examination of the same by the Court and affording an opportunity to the opposite party to examine the same is mandatory. It is not the claim of the defendants that the said document is not available. In the facts and circumstances of the case, this Court is of the considered opinion that the said document has also been suppressed and screened from the scrutiny of the Court. In view of the above, this Court is of the considered opinion that the defendants have miserably failed to demonstrate passing of any consideration. In view of the above findings that the GPA is a void document and that no consideration has been passed on to the plaintiff from defendant No. 1, we are of the considered view that the appellants, i.e., defendant Nos. 1 and 2 are not entitled to any relief. We do not find any good ground, which warrants interference with the impugned judgment and decree at the hands of this Court. Accordingly, the judgment and decree of the trial Court is upheld. The appeal is devoid of merit and is accordingly, dismissed. In the facts and circumstances of this case, the appeal deserves to be dismissed with costs and the cost is quantified at Rs. 10,000/-.
