Applicability of Section 12(2) of CPC - How decree obtained by fraud can be cancelled or set aside?
Need your opinion to reopen a case under Section 12(2) of CPC.
I read somewhere that, "Judgment, decree or order can be impeached on grounds of fraud, misrepresentation or lack of jurisdiction under Section 12(2) Civil Procedure Code, 1908. Relief can be obtained by aggrieved person by application to court which passed final judgment, decree or order and not by a separate suit."
Issue:
My father has filed suit in 2004 claiming the lands in Survey A and B belongs to his father (Expired in 1995) registered under document no. 1 and 2 in the year 1952, produced khata, tax paid receipt and claimed defendants without any manner of right , interest are interfering with peaceful possession of our property. A case filled against multiple Site allottees sold to them by private layout developer carved in our lands, RTC stands in my grandfather name still today.
Site allottee written statement saying, site was allotted to them by private layout in the year 1995 and they have paid taxes and obtained khata from bbmp and are in possession. Site allottees made Private layout developer party to the suit.
Private layout Defendant submitted written statement that, my grandfather has executed them GPA compressing of our Survey A and B and Survey C ( This does not belongs to us).
Here interestingly, though the site was carved in our survey A and B, private layout sold the site with the sale deed recitals saying that site is carved in survey C. This has confused my father and the lawyer contesting the case. My father has not made actual owner C party to the suit. The case was lost in 2012, the GPA was accepted in court as my lawyer has not challenged it and
also Judge in judgement observed that GPA has been tempered with use of whitener at several places. IN spite of that, the Judgement was given in favor of private layout and site allottees. My lawyer did not seek for commissioner appointment for Survey and not challenged the unregistered GPA lacking stamp duty.
My father passed away 2016.
Now recently, the actual owner of C had a dispute with private layout regarding another of his property Y being encroached upon by private layout, upon obtaining RTC for survey C, he found that the RTC stands in his grandfather name which was fraudulently acquired by private layout and fake GPA has been created with use of whitener at several places which includes our survey A and B and his survey C in my grandfather name.
It is also found that, private layout has converted our lands, the actual conversion order says, lands coming under survey A and B should be used for Park purpose. But, all the sites carved in our lands fraudulently has be mispresented as carved out in Survey C in sale deed recitals.
1. the fraud has come to my knowledge now. Can I reopen my father case under Section 12(2) of CPC or Is it barred by limitation.
2. can my father sister can file a separate partition suit to avoid court fee. suit is barred res judicata?
Asked 4 years ago in Property Law
Religion: Hindu
Thank for responses, my father was just studied 2 std not educated in english. Agree that my father must have not guided his advocate properly due to his own lack of knowledge to read plaint and guide his cousel.
But challening GPA on legal grounds my father would not be aware and filling objections for evidence produced would be know by his advocate only
and I was young to involve in court matters when suit was filled.
1. Is thier a way to file appeal RFA now in high court on condolence of delay and fraud which has come to our knowledge now.
2. As for as declaration is considered, i believe here title is not in dispute, layout has agreed the property belongs to my grandfather through gpa, Certified copies of registered title deeds are availabe. In this case for my aunt can simply file partiton suit ?
To save court fees or what Is the best option. We are not in possession of land still around 5000sft of empty land is available.
I read some jurdgement
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5577 OF 2021
https://www.legalserviceindia.com/legal/article-6787-suit-for-permanent-injunction-not-maintainable-without-declaration-when-title-is-disputed.html
It reads,
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Need for a declaration before grant of Permanent Injunction
When someone approaches the Court for a permanent injunction against a squatter disturbing peaceful possession and enjoyment of their property, a very fundamental premise on which such relief is granted is that the Defendant is disturbing the peaceful possession of the Plaintiff who holds title to the property. However, if the defendant is actually claiming to be owner/ sharer of the property, title becomes a fact in issue.
Please read from link shared further.
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We have registered title deeds in my grandfather name, rtc reflect his name, we have clear evidence of fraud.
So, can we seek only injunction without declaration. Please.
Asked 4 years ago
