Judgment :- Plaintiff is the appellant. She filed the suit for redemption of Ext. A-1 mortgage of two cents of land. The suit was dismissed by the trial Court. The appeal filed by the plaintiff was partly allowed and the suit was decreed for redemption of one cent. 2. Plaintiff's mother Lekshmi Vumakshi obtained jenmom right over the property having an extent of two cents as per document No. 3081 of 1953. Lekshmi Vamakshi executed Ext. A-1 mortgage deed dated 7-1-54 in favour of Velayudhan Vaidyar, husband of the first defendant and father of defendants 2 to 10 (respondents). Lekshmi Vamakshi had also executed Ext. A-2 sale deed with respect to the same properly in favour of her daughter Revathi authorising her to redeem the mortgage. Revathi executed sale deed in favour of the plaintiff on 24-12-1981 (Ext. A3 ). Plaintiff in the suit for redemption also seeks to set aside the purchase certificate (ExtB-1) obtained by the defendants' predecessor on the ground of fraud and collusion. 4. Defendants 2,3,- and 5 filed written statement admitting jenmom right of plaintiff's mother Lekshmi Vamakshi. Ext. A-1 mortgage in favour of Velayudhan Vaidyar and Ext. A2 assignment by Lekshmi Vamakshi in favour of Vamakshi Revathi are admitted by them. But they contended that Velayudhan Vaidyar had obtained purchase-certificate (Ext. B1) from the Land Tribunal as per the order Ext. B-4 dated 27-8-197 5 in O.A. 170 of 1975. It is also contended by them that the plaintiff's assignor Vamakshi Revathi was in the party array in O.A. 170 of 1975 and therefore the plaintiff is not entitled to redeem the property. 5. The trial court dismissed the suit holding that the purchase certificate is valid and Ext. B-6 judgment in O.S.487 of 1982 operates as resjudicata to the claim of the plaintiff. The lower appellate court allowed redemption of one cent as the purchase certificate pertains only to that much extent. 6. The plea of fraud and collusion was found against the plaintiff by the Courts below. Plaintiff con tends that Revathi was not really aware of the filing of the Original Application before the Land Tribunal and as fraud was played on her the purchase certificate cannot have any validity. It is contended that nothing is mentioned about the purchase certificate in Ext.
Plaintiff con tends that Revathi was not really aware of the filing of the Original Application before the Land Tribunal and as fraud was played on her the purchase certificate cannot have any validity. It is contended that nothing is mentioned about the purchase certificate in Ext. A-3 sale deed by Revathi in favour of the plaintiff and that would certainly show that it is a fraudulent document. Merely because Revathi failed to defend the Original Application before the Land Tribunal fraud cannot be inferred or imputed. There is also no logic in the argument that the failure to mention anything about the purchase certificate in Ext. A-3 unfolds Revathi's lack of awareness of the Land Tribunal proceedings. Ext. B-4 order of the Land Tribunal discloses that notice was issued to Revathy in the Original Application. Except the ipsi dexit of P.W.I that the decision in O.A. 170 of 170 of 1975 was fraudulently obtained by the first defendant's husband there is hardly any evidence in support of the said allegation. P.W.I in cross- examination admitted that she does not know who committed the fraud. She stated that she did not enquire about Ext. B-4 case in the Land Tribunal. As Ext. B-4 order shows that notice was issued to Revathi in the Original Application and as no attempt was made by the plaintiff to examine the former to substantiate the allegation of fraud and as there is lack of evidence with regard to the manner and mode of fraud alleged to have been committed in obtaining purchase certificate the trial Court was justified in rejecting plaintiff's case. 7. Merely on vague allegations a decision by a Court cannot be set aside on the ground of fraud. It is incumbent upon the party alleging fraud to establish his case by positive and cogent evidence. Merely because the respondent in the O.A. remained ex parte one cannot jump to the conclusion that it is a case where fraud was committed by the applicant. There is nothing in evidence to hold that the first defendant's husband who filed the Original Application contrived to keep off the respondent in the O.A. and obtained the decision in his favour collusively and fraudulently. 8. The decision rendered by a Court or Tribunal cannot be set aside on the basis of any unfounded allegation of fraud or collusion.
There is nothing in evidence to hold that the first defendant's husband who filed the Original Application contrived to keep off the respondent in the O.A. and obtained the decision in his favour collusively and fraudulently. 8. The decision rendered by a Court or Tribunal cannot be set aside on the basis of any unfounded allegation of fraud or collusion. It is necessary for the person alleging fraud and collusion to prove the same. Mode and manner in which fraud was committed must certainly find a place in the pleadings and it has to be supported by evidence. In order to successfully claim relief in a suit alleging fraud to set aside the judgment or order of a Court or Tribunal it has necessarily to establish fraudulent suppression of basic matters connected with the case including non service of notice. Only on proof of high order judgment or order of a Court or Tribunal is liable to be set aside. In other words it must be established that the person against whom fraud is alleged acted in a perfidious and nefarious manner and as a result of it his adversary's interest was detrimentally affected. Mere general allegations of fraud or collusion would be hardly sufficient to set aside the decision of a competent court or Tribunal. 9. The trial Court's finding that the plaintiff has not established her case of fraud was not challenged before the lower appellant Court. Having not raised the same before the lower appellate court, plaintiff cannot urge it before this court. As the lower appellate Court's judgment indicates that the grounds urged in the plaint with regard to the fraudulent nature of Ext. B-4 order of the Land Tribunal was not argued when the appeal was heard before the District Judge the plaintiff is not entitled to make a grievance about it before this Court. In Daman Singh v. State of Punjab ($IR 1985 S.C. 973) the Supreme Court held thus: "It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds argued were not considered.
No party or counsel is thereafter entitled to make a grievance that the grounds argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior court is not to be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not"? In a case where the trial Court has come to a finding on a particular issue and if that was not challenged before the lower appellate Court one cannot agitate it before this Court in Second Appeal. A party cannot be allowed to raise contentions in a whimsical manner in Second Appeal. It is pertinent to note that the plaintiff has not filed any application for clarification or review before the lower appellate court stating that argument was really advanced with regard to the plea of fraud and the lower appellate court failed to consider the same. 10. As the first defendant's husband had obtained jenmom right over one cent of the property as per Ext. B-4 order of the Land Tribunal and as that has been recognised and accepted in Ext. B-6 judgment wherein the plaintiff was the third defendant the lower appellate Court was justified in holding that the plaintiff is entitled to get redemption of only one cent of land. In view of Ext. B-4 order of the Land Tribunal the plaintiff is certainly not entitled to redeem the entire two cents. The judgment and decree of the lower appellate Court are confirmed. Second Appeal is dismissed.