The unsuccessful plaintiff before both the Courts below is the appellant herein.
2. The brief facts are as follows:
The plaintiff filed O.S.No.58/2003 claiming that the suit schedule property belongs to her. By sale deed dated 29.11.1982,she purchased the suit schedule property along with other properties. It is her further case that already she was in possession of the properties purchased by her on 29.11.1982, by way of Othi executed on 19.08.1977. In both, the sale deed and othi deed, her house number was shown as 43 and 44, which included the backyard. In so far as house No.43 and its backyard is concerned, there is no problem at all. The backyard of house No.44 is the suit property, which is an extent of 1740 sq.ft.. The father of the defendants by sale deed dated 25.07.66 purchased house number 42 in survey No.535/1. They have nothing to do with the suit schedule property. According to the plaintiff, she filed suit in O.S.No.185/84 against the mother of the defendant and another. In the mean time, the plaintiff fell ill. Even though no power of attorney was given to her husband, the plaintiff's husband cheated her by representing the suit and suppressed vital facts. The plaintiff was kept in dark about the suit proceedings. She came to know about the second appeal proceedings initiated by her husband in the High Court, only on 17.02.2002. She was not aware of the second appeal proceedings prior to that, even though she filed the suit. Her husband obtained her signatures in very many blank papers and they were all used by her husband in the court proceedings. Further, while going through the old records, she happened to find out the copy of the judgment made in S.A.No.93/1989. As she did not know English she approached the English knowing person and from him she came to know that the boundaries were wrongly given and important parent documents were not filed in the Court, eventhough plaintiff had all the documents. Therefore a fraud has been committed on her by her husband and accordingly O.S.No.185/84 was wrongly dismissed by the trial Court which was also upheld by the High Court. Hence she filed the suit for the relief of cancelling the judgement and decree made in O.S.No.185/84 and for recovery of possession.
3. The suit was resisted by the defendants by filing the written statement wherein they stated that allegation of the plaintiff is not correct and infact the plaintiff husband passed away when the first appeal proceedings were pending and therefore, not only the first appeal proceedings were continued by the plaintiff and also the second appeal proceedings were initiated by the plaintiff. Thus, the case of the plaintiff was rejected by three Courts and therefore she could not be allowed to raise the very same contentions which is barred by res-judicata.
The trial court framed the following issues namely:
1. Whether the judgment and decree made in O.S.No.185/84 is to be cancelled?
2. Whether the plaintiff is entitled to recovery of possession?
3. Whether the suit is barred by resjudicata?
and
4.To what other reliefs?
4. The trial court went into the allegation of fraud levelled by the plaintiff against her husband and her contention that proper and necessary documents were not filed in O.S.No.185 of 1984. On the basis of the evidence let in, the trial court found that no new documents were filed by the plaintiff in the present suit even though her contention was that proper and necessary documents were not filed in O.S.No.185 of 1984. Thus, the trial Court found that the documents relied on by her to prove her title in O.S.No.185 of 1984 and the documents relied on her in the present suit are one and the same. The trial Court has also adverted to the evidence of the plaintiff in her cross-examination that, her husband passed away within three months from the date of judgement and decree passed by the trial Court in O.S.No.185 of 1984. The plaintiff also admitted that her husband was no more when the first appeal was pending before the Lower Appellate Court. The plaintiff did not also reveal who proceeded with both the appeal proceedings. In such circumstances, the trial Court came to the conclusion that the allegation of fraud levelled by the plaintiff against her husband while conducting the suit proceedings in O.S.No.185 of 1984 was not at all proved. Consequently, the trail Court found that the present suit was barred by res-judicata and the plaintiff was not entitled to recovery of possession. Accordingly, the suit was dismissed by the trial court. The Lower Appellate Court after re-evaluating the evidence also found that no new documents were filed by the plaintiff in the present suit. Even though her contention was that her husband did not file proper and necessary documents, which would go to show that the property belongs to her. On the basis of the deposition given by the plaintiff, the Lower Appellate Court also found that the allegation of fraud as alleged by the plaintiff was not at all proved. Hence, the Lower Appellate Court concurred with the judgement of the trial Court and accordingly, dismissed the appeal.
6. Aggrieved by the judgement of the Lower Appellate Court, dated 18.06.2008, the plaintiff in the suit filed the above Second Appeal, raising the following substantial questions of law in the memorandum of appeal:
a) Whether the decree and judgment passed in O.S.No.185 of 1984 on the file of District Munsif Court, Thiruvaiyaru operates as resjudicata against appellant?
b) Whether non-examination of defendant in the suit is a relevant factor for decreeing the suit filed by the plaintiff as prayed for?
c) Whether the Courts below have erred in law in holding that the plaintiff is entitled to seek reopening of earlier suit in O.S.No.185 of 1984 on the file of District Munsif Court, Thiruvaiyaru on the ground of fraud?"
7. On 21.10.2008, this Court ordered notice to the respondents and the Second Appeal was not admitted on any substantial question of law. Though the notice was served on the respondents and their names appeared in the Cause List, there is no representation on behalf of them.
8. Heard the learned counsel for the appellant. I also perused the entire materials available in the record.
9. Admittedly the case of the plaintiff before the trial Court is that, the judgment and decree made in O.S.No.185 of 1984 is to be cancelled as her husband committed a fraud on her by not properly representing the matter and by not filing the proper and necessary documents which would prove the title of the plaintiff. It is also not in dispute that O.S.No.185 of 1984 was dismissed by the trial Court and both the appeals preferred by the plaintiff were also dismissed. The plaintiff herself admitted that her husband passed away when the first appeal proceedings were pending. But, she did not come forward to show how and who proceeded with the first appeal and thereafter the Second Appeal. It is also admitted that no new documents were filed by the plaintiff in the present suit eventhough her case was that necessary and proper documents were omitted to be filed by her husband which would prove her title.
10. In such circumstances, the plaintiff has miserably failed to establish her case of fraud and it is settled law that the onus of proving fraud lies on the person who alleges it. Further, it is a pure question of fact and both the Courts have found that there were no materials to substantiate her contention that a fraud was committed and because of that, the suit and the appeals were dismissed. This being a pure question of fact, this Court cannot interfere with the findings of the Lower Appellate Court confirming the findings of the trial Court under section 100 CPC.
11. Therefore, I do not find any substantial question of law that arises for consideration in the second appeal. A perusal of the substantial questions of law as framed in the memorandum will make it very clear that they are not substantial questions of law and at the most the appellant is re-arguing and raising the very same grounds that were decided by the Lower Appellate Court.
12. In the result, I do not find any merits in the Second Appeal and accordingly the same is dismissed with costs.
arr To
1. The Principal Sub Court, Thanjavur.
2. The District Munsif Court, Thiruvaiyaru.