Chenchulakshmi v. Janardan Singh and others — 1999 DIGILAW 1142 (MAD)

Judgment :- S.A.No.134 of 1984 is preferred by the plaintiff in O.S.No.535 of 1977. S.A.No.1565 of 1987 is preferred by the defendants in O.S.No.1395 of 1980. 2. The plaintiff in O.S.No.535 of 1977 is also the plaintiff in O.S.No.1395 of 1980. She is the respondent in S.A.No.1565 of 1987, while she is the appellant in S.A.No.134 of 1984. Sundari Bai, Raghanatha Singh, Ganesan and Krishnadas are the defendants in O.S.No.1395 of 1980. They are the appellants in S.A.No.1565 of 1987. Sundari Bai, Janardan Singh, Subbu Singh and Krishnadas are the defendants in O.S.No.535 of 1977 and the respondents in S.A.No.134 of 1984. The properties comprised in O.S.No.535 of 1977 bear Door Nos.19 to 23/109, T.S.No.7/2405, Sukrawarpettai, Coimbatore. The properties comprised in O.S.No.1395 of 1980 are door Nos.19 to 23 corresponding to old No.30/131 and T.S.No.7/2405. Thus, the parties and properties are the same. Therefore, I propose to dispose of these two cases by a common judgment. 3. The suit in O.S.No.1395 of 1980 was filed by the plaintiff Chenchulakshmi against four defendants viz., Sundari Bai, Raghunath Singh, Ganesan and Krishnadas for injunction restraining the defendants from constructing any stair case in the portion shown as “EBGH” in the plaint plan and also prevent the people residing to the south of it from going through the steps ‘EBGH’ to Sukrawarpet Street. 4. The plaintiffs case there was, as follows: The properties shown in Red, Green, Blue and Yellow coloured in the plaint plan viz., ‘ABCD’, originally belonged to Hira Bai, mother of the 1st defendant. The property is just to the north of Sukrawarpet Street. There is a passage from Sukrawarpet Street running towards south which is shown in ‘EBCF’ in the plaint plan. The said path is 4’ east west on the southern side and 5 1 2’ eastwest on the northern side. Heera Bai had three sons by name Lokanath Singh, Janarthan Singh and Subbu Singh, and a daughter by name Sundari Bai, the 1st defendant. On her death, as per her will the properties were divided amongst her heirs on 12. 1955. The red washed portion shown in the plaint plan was obtained by the 1st defendant in the said partition. The other brothers obtained the blue and red washed portions. The 2nd defendant is the husband of the 1st defendant. Defendants 3 and 4 are their children. On 211. 1960, Lokanath Singh died without any issue. 1955. The red washed portion shown in the plaint plan was obtained by the 1st defendant in the said partition. The other brothers obtained the blue and red washed portions. The 2nd defendant is the husband of the 1st defendant. Defendants 3 and 4 are their children. On 211. 1960, Lokanath Singh died without any issue. The two brothers and the 1st defendant obtained 1/3rd share in the property left behind by Lokanath Singh. Janarthan Singh and Subbu Singh, the brothers of the 1st defendant filed a suit and claimed 8/9th share, admitting that the 1st defendant was entitled to 1/9th share. A suit was filed in O.S.No.125 of 1970 and in that suit, the tenants and the mortgages alone were impleaded as parties. There was a preliminary decree for partition. Later, a final decree was passed. According to the final decree, the plaintiffs were granted 8/9th share and 1/9th share was allotted to the 1st defendant. To reach the share allotted to the plaintiffs from Sukrawarpet, there was a passage shown as ‘EBGH’. The said property was purchased by the father of the plaintiff. It was obtained by the father of the plaintiff from the plaintiffs in O.S.No.125 of 1970 viz., Janarthan Singh and Subbu Singh and the plaintiff is in possession of the property accordingly. When the proceedings in O.S.No.125 of 1970 was pending, the 3rd and 4th defendant at the instigation of the 1st defendant filed a suit in Sub Court, in O.S.No.373 of 1972, claiming 1/3rd share. The vendors of the plaintiff viz., Janarthan Singh and Subbu Singh were parties there. The suit was decrees on 3. 1973 ex parte. In pursuance of the same, no final decree has been passed. The said suit is pending whatever it is, the plaintiff is entitled to a right of pathway to reach her portion from Sukrawarpet Street. Whileso, the 1st defendant has obstructed the passage by putting up a concrete stair case on the common passage. She has no right to do so. The other defendants are colluding with the 1st defendant. Inspite of the injunction obtained in I.A.No.492 of 1980 in O.S.No.535 of 1977, the 1st defendant is carrying on the construction. Defendants 1, 3 and 4 have admitted the right of the plaintiff to the pathway. The construction put up is now in the portion shown as ‘IJKL’. The other defendants are colluding with the 1st defendant. Inspite of the injunction obtained in I.A.No.492 of 1980 in O.S.No.535 of 1977, the 1st defendant is carrying on the construction. Defendants 1, 3 and 4 have admitted the right of the plaintiff to the pathway. The construction put up is now in the portion shown as ‘IJKL’. Despite repeated requests, the defendants are proceeding with the construction and therefore, the suit. 5. The 1st defendant pleaded as follows: It is not admitted that the plaintiff is entitled to 8/9th share viz., the portion shown as Blue and Green washed. The 1st defendant is entitled to the portion shown in red. It is not true to say that in the common pathway stair case is being put up by the 1st defendant. The 1st defendant has not encroached upon the common pathway. Nor there was any obstruction caused by reason of the stair-case put up by her. She has put up the construction only within her property and the plaintiff cannot question the same. Pursuant to the sanction, the construction has been put up. Suppressing this fact, the suit has been filed. The vacant site is to the west of the pathway. The vacant site to the left of the godown and to the east of the same belonged to the 1st defendant and she is in enjoyment of the same. The plaintiff has not right over the same. There is a toilet situate in the 1st defendants portion of the property. The 1st defendant has also obtained water connection. In the said vacant portion of the property, the plaintiff has no right. The passage at the entrance abutting Sukrawarpet is only 3’ in width and not 6’ as claimed by the plaintiff. The width of the passage is not uniform. The plaintiff and her father have trespassed upon the pathway and put up a pial. The plaintiff has no right to take drainage water through the said pathway. The stair case and the godown are part of the same construction. It cannot be removed. If it is removed, irreparable damage will be caused to the defendants. The construction of the stair-case is not at all a hindrance to the use of the pathway. The defendants also have a right to use the pathway. The suit has been filed to cause loss to the defendants. 6. It cannot be removed. If it is removed, irreparable damage will be caused to the defendants. The construction of the stair-case is not at all a hindrance to the use of the pathway. The defendants also have a right to use the pathway. The suit has been filed to cause loss to the defendants. 6. Thesuit in O.S.No.535 of 1977 was filed by the plaintiff Chenchulakshmi for declaration that the decree passed in O.S.No.373 of 1972 is collusive, fraudulent and void and cannot affect the rights of the plaintiff. The plaintiffs case in brief, is as follows: The defendants 1 and 2 are brothers, and the 5th defendant is their sister. They had another brother by name Lokanath Singh. Defendants 3 and 4 are the sons of 5th defendant. On 12. 1955, the defendants 1, 2 and 5 and Lokanath Singh divided a house which they got by a Will from their mother. The property described as B schedule fell to the share of defendants 1 and 2 and Lokanath Singh. The property described in B(1) Schedule fell to the share of the 5th defendant. Lokanath Singh died intestate on 211. 1960. On his death, the defendants 1, 2 and 5 as his heirs inherited 1/3rd share in B schedule property. Defendants 1 and 2 became entitled to 8/9th share together, while the 5th defendant became entitled to 1/9th share. A suit was filed in O.S.No.125 of 1970, which was contested by the 5th defendant urging that the defendants 1 and 2 were not entitled to the B schedule property in entirety but only to 2/3rd share and in respect of the other 1/3rd it belonged to her minors sons, the defendants 3 and 4 by reason of a will executed by Lokanath Singh on 11. 1960. The court held that the said will is not true. However, it held that the 5th defendant herein was also an heir to her deceased brother Lokanath Singh along with the other two brothers, defendants 1 and 2 herein were entitled to a preliminary decree for partition and possession of their 8/9th share. Pursuant to the same, the defendants 1 and 2 applied for division by appointment of a Commissioner in I.A.No.155 of 1971 and a final decree was passed on 111. 1972 allowing to their 8/9th share viz., the property described in C schedule. Pursuant to the same, the defendants 1 and 2 applied for division by appointment of a Commissioner in I.A.No.155 of 1971 and a final decree was passed on 111. 1972 allowing to their 8/9th share viz., the property described in C schedule. They also took possession of the property through court. The plaintiffs father entered into an agreement to purchase ‘C’ schedule property, with defendants 1 and 2. The defendants 1 and 2 handed over to the plaintiffs father the records connected in O.S.No.125 of 1970, and later executed the sale deed in favour of the plaintiffs father, after receiving a consideration of Rs.12,000. It appears that a suit had been filed by the defendants 3 and 4 through their sister Radha Bai as next friend claiming partition and separate possession of 1/3rd share of B schedule properties on the basis of the will left behind by Lokanath Singh. The defendants 1 and 2 strongly contested the suit denying the genuineness and validity of the Will and putting forward the decree in O.S.No.125 of 1970. The said suit in O.S.No.373 of 1972 was posted for trial on 8. 1973 and on that day, the defendants 1 and 2 remained absent and an ex parte decree was passed in favour of the defendants 3 and 4 granting them 1/3rd right in ‘B’ schedule property. The defendants 1 and 2 deliberately remained absent in collusion with the plaintiffs in that suit with a view to help their nephews and to cause loss to the plaintiff. The plaintiffs father was not aware of the pendency of the suit. Therefore, the decree obtained by the defendants 3 and 4 cannot bind the plaintiff. The alleged Will dated 11. 1960 was not even proved. The said decree is void for want of proof of the Will. The plaintiffs father came to know about the collusion and fraud of the defendants 1 and 2 only when some notice was served on him in April, 1974. He took the defendants 1 and 2 to task for their misfeasance and fraud and threatened to criminally prosecute them and also claim damages. They attempted to pacify the plaintiffs father. They asked the plaintiffs father to join them in opposing I.A.No.221 of 1974. He took the defendants 1 and 2 to task for their misfeasance and fraud and threatened to criminally prosecute them and also claim damages. They attempted to pacify the plaintiffs father. They asked the plaintiffs father to join them in opposing I.A.No.221 of 1974. Due to the persistence of the plaintiff, the defendants 1 and 2 filed a petition in I.A.No.881 of 1974 in O.S.No.373 of 1972 to set aside the ex parte decree. The court refused to the set aside the same and dismissed the petition. The defendants 1 and 2 filed C.M.A.No.31 of 1975 against the said order. The District Judge set aside the ex parte decree. But, the defendants 3 and 4 took the matter to the High Court in C.R.P.No.3389 of 1976, where the order of the trial court was restored. Now the defendants 3 and 4 are threatening to dispossess the plaintiff. Hence, the suit. 7. The defendants 1 and 2 remained absent and were set ex parte. The defendants 3 and 4 filed a common written statement as follows: It is not admitted that Lokanatha Singh died intestate. He executed a Will on 11. 1960, which was his last will. By virtue of the said will, he bequeathed his 1/3rd share to the defendants. Therefore, on his death, the defendants became entitled to the said share of Loknath Singh. Ever since 211. 1960, the defendants were in joint possession of the property with the other co-owners. Defendants 1 and 2 are only entitled to a 2/3rd share by virtue of succession to Heera Bais estate. These defendants are not concerned or bound by the proceedings in O.S.No.125 of 1970. They were not made parties to the suit. These defendants do not claim the property under the 5th defendant. They have got independent right by virtue of the operation of the will. Therefore, the finding of the court will not bind these defendants. The plaintiff conveniently pleads an oral agreement. The sale deed alleged to have been executed on 9. 1977 is not true and valid and it is of no avail since the sale deed is after the decree passed in O.S.No.373 of 1972, to which defendants 1 and 2 were parties. The defendants 1 and 2 filed their written statement stoutly denying the genuineness and validity of the will. The suit was included in the list for trial. 1977 is not true and valid and it is of no avail since the sale deed is after the decree passed in O.S.No.373 of 1972, to which defendants 1 and 2 were parties. The defendants 1 and 2 filed their written statement stoutly denying the genuineness and validity of the will. The suit was included in the list for trial. But the defendants 1 and 2 and their counsel did not turn up and in order to give a chance to the defendants 1 and 2, the matter was adjourned to 8. 1973. The counsel for the defendants reported no instruction. The sister of these defendants 3 and 4 tendered evidence in O.S.No.373 of 1972, and the suit was decreed. The said decree has become final and conclusive. The defendants 1 and 2 are bound by the same. Pursuant to the decree, the defendants filed a petition in I.A.No.221 of 1974 for the passing of a final decree. By way of the caution, the father of the plaintiff was impleaded as a party to the final decree application. Defendants 1 and 2 along with the plaintiffs father filed a common counter statement, and on 10. 1974, the court passed an order, over-ruling the objections and appointing a Commissioner. The said Order has become conclusive. Therefore, the present suit is not maintainable. The plaintiff has purchased the property pending the suit in O.S.No.373 of 1972. Hence, the sale in favour of the plaintiff is hit by the doctrine of lis pendens. The decree in O.S.No.373 of 1972 cannot be attacked on any ground. It has become final and conclusive. The allegations relating to collusion are false and concocted. The said decree is binding and it cannot be declared to be void. The plaintiff being bound by the decree should seek cancellation of the decree first, before claiming any further relief. 8. The5th defendant contended that she is not a necessary party to the suit. 9. The trial Court viz., the Subordinate Judge, Coimbatore, decreed the suit in O.S.No.535 of 1977 against which defendants 3 and 4 preferred an appeal to the District Court, Coimbatore, in A.S.No.83 of 1982. The District Judge, Coimbatore, by his judgment dated 3. 1983 allowed the appeal and dismissed the suit. As regards the suit filed by Chenchulakshmi in O.S.No.1595 of 1980, it was dismissed by the Principal District Munsif, on 110. 1985. The District Judge, Coimbatore, by his judgment dated 3. 1983 allowed the appeal and dismissed the suit. As regards the suit filed by Chenchulakshmi in O.S.No.1595 of 1980, it was dismissed by the Principal District Munsif, on 110. 1985. Aggrieved by the said decision, the plaintiff preferred an appeal to the I Additional District Judge, Coimbatore, in A.S.No.4 of 1986. The appeal was partly allowed. S.A.No.1565 of 1987 is therefore preferred by the defendants in O.S.No.1395 of 1980. S.A.No.134 of 1984 is preferred by the plaintiff in O.S.No.535 of 1987. 10. Now let me take up for consideration first, the case of the plaintiff in O.S.No.535 of 1977. The prayer asked for in the suit is to set aside the decree passed in O.S.No.373 of 1972. The plaintiff has stated that there was collusion between defendants 1 and 2 with the plaintiff in O.S.No.373 of 1972 and with a view to help their nephews and to cause loss and give trouble to the plaintiff, they kept the plaintiff in dark. They dropped out from O.S.No.373 of 1972 collusively and that there is collusion and fraud and hence, the plaintiff is seeking the relief for setting aside the decree passed in O.S.No.373 of 1972. Thus, on the ground of collusion and fraud, the decree is sought to be set aside. As regards the plea of fraud, particulars are not given in the plaint. It is simply stated that the plaintiffs father came to know about the collusion and fraud only when notice was served on him in March, 1974, in I.A.No.221 of 1974 in O.S.No.373 of 1972. Excepting this allegation in para.12 we do not find any other particulars in the plaint, giving details of fraud. It is also stated in para.10 that the defendants 1 and 2 deliberately remained absent in collusion with the plaintiff in O.S.No.373 of 1972 and they have done so fraudulently to help their nephews. 11. Under O.6, Rule 4 of C.P.C. if fraud is pleaded, it is necessary to set out material facts. It is also stated in para.10 that the defendants 1 and 2 deliberately remained absent in collusion with the plaintiff in O.S.No.373 of 1972 and they have done so fraudulently to help their nephews. 11. Under O.6, Rule 4 of C.P.C. if fraud is pleaded, it is necessary to set out material facts. It reads as follows: “In all cases, in which the party pleading relies on any mis-representation, fraud breach of trust, wilful default or undue influence and in all other cases, in which particulars may be necessary beyond such as are exemplified in the forms of aforesaid particulars with dates and items if necessary, shall be stated in pleading.” It is simply not enough to employ the general expression fraud and collusion. For they are insufficient even to amount to an averment of fraud of which the court can take notice of. Where a plaintiff seeks relief on the ground of fraud without giving particulars of fraud, he cannot hope to succeed in the case. 12. The Privy Council has held in the decision reported in Bharat Dharma Syndicate v. Harish Chandra (1937)2 MLJ. 609:A.I.R. 1937 P.C. 146 that the policy of law is that the person charged with fraud or undue influence etc. should be apprised of its particulars so that the said party may be in a position to rebut those particulars. If no particulars are furnished to the party charged with such conduct, he is to be at a disadvantage and is unable to meet the case sought to be established by the party making the charge. Collusion also implies some kind of fraud and where it is alleged general allegations are not enough without any sufficient particulars V.S. Vishwa Vidyalaya v. Rajkeshore V.S. Vishwa Vidyalaya v. Rajkeshore V.S. Vishwa Vidyalaya v. Rajkeshore A.I.R. 1977 S.C. 615. 13. In this case, I have extracted the relevant portion of the plaint to point out that though the prayer for setting aside the decree made on the basis of fraud and collusion, the necessary particulars, which have to be stated as required under O.6, Rule 4, C.P.C. are singularly absent. The mere statement that there is fraud and collusion will not suffice in the absence of necessary particulars to support such averment. Even otherwise, a reading of the evidence of the parties concerned would not substantiate this allegation of fraud and collusion. The mere statement that there is fraud and collusion will not suffice in the absence of necessary particulars to support such averment. Even otherwise, a reading of the evidence of the parties concerned would not substantiate this allegation of fraud and collusion. In the course of chief-examination, P.W.1 who is the father of the plaintiff would say that either during the negotiations or at the time of sale, there was no whisper made about the pendency of a case by the defendants 1 and 2. In this connection, it is to be pointed out that the sale which is relied upon but the plaintiff has come into existence pendente lite. Sec.54 of the Transfer of Property Act is not to the effect that persons who purchase without notice would be protected. In the course of chief examination, P.W.1 has only stated that after he received notice from court, he met defendants 1 and 2 and they requested P.W.1 to sign certain papers, stating that they would defend the case and that therefore, he did not take out any separate steps. He has simply stated that brothers and sisters colluded together to defraud the plaintiff. He does not say on what ground and on the basis of what particulars, he is stating that the decree is a collusive one and there was a fraud played upon him by the parties to the suit in O.S.No.373 of 1972. Thus, even in the course of chief examination, the plaintiff has not chosen to state the necessary particulars. On the other hand, in the course of cross examination, it has been stated by him clearly that the plaintiff is not aware of anything. 14. I will not refer to the admissions made by P.W.1 in the course of cross-examination. He says that he does not know about the litigation that went on between the parties, He further admits as follows: 15. A specific question was put to him that as he was aware of the preliminary decree passed, he retained Rs.8,000 out of the sale price to which, he has answered as follows: Therefore, a reading of the testimony of P.W.1 would show that there is absolutely no basis to hold that there was any collusion or fraud. The evidence of P.W.1 in this connection does not reveal any material to suggest any truth in that regard. The evidence of P.W.1 in this connection does not reveal any material to suggest any truth in that regard. As I pointed out already, necessary pleadings are not found in the plaint. Even in the evidence, we do not find any material to the effect that there was any fraud or collusion. 16. In this connection, certain dates will be relevant. The suit in O.S.No.125 of 1970 was presented in pauperism on 8. 1969. It was registered as suit on 3. 1970. The preliminary decree was passed on 38. 1971. The plaintiffs there were held to be entitled to 8/9th share to the property while Sundari Bai, the 1st defendant therein was held to be entitled to the remaining 1/9th share. Whileso, on 16. 1972, O.S.No.373 of 1972 was filed by minors Ganesan and Krishnadoss, represented by next friend Radha Bai. There was an application in I.A.No.374 of 1972 in O.S.No.373 of 1972, whereby there was an interim injunction against the plaintiff Chenchulakshmi. Pursuant to the decree in O.S.No.373 of 1972 the plaintiffs filed an application in I.A.No.221 of 1974 for the passing of final decree, where the father of the plaintiff was impleaded. The father filed objections. The objections were over-ruled and a Commissioner was appointed. The said order is not challenged. In the meanwhile, on 111. 1972, a final decree was passed in O.S.No.125 of 1970 and it is stated that pursuant to the final decree, on 8. 1972, possession was taken by the plaintiffs in the suit. On 8. 1973, the suit filed in O.S.No.373 of 1972 was decreed ex parte. The sale deed was executed by the defendants 1 and 2 in favour of Venkatesalu Naidu, on 9. 1973, the plaintiffs father. While so, the vendors under the sale deed dated 9. 1973 viz., defendants 1 and 2 filed I.A.No.881 of 1974 to set aside the ex parte decree in O.S.No.373 of 1972. The petition was filed on 29. 1974 and was dismissed on 24. 1975. The petitioners in I.A.No.881 of 1974 thereafter preferred an appeal in C.M.A.No.31 of 1975, which was allowed on 7. 1976. Aggrieved by the said order, the respondents in C.M.A.No.31 of 1975 filed C.R.P.No.3389 of 1976 and the High Court allowed the civil revision petition and dismissed the I.A.No.881 of 1974 viz., the application to set aside the ex parte decree. The petitioners in I.A.No.881 of 1974 thereafter preferred an appeal in C.M.A.No.31 of 1975, which was allowed on 7. 1976. Aggrieved by the said order, the respondents in C.M.A.No.31 of 1975 filed C.R.P.No.3389 of 1976 and the High Court allowed the civil revision petition and dismissed the I.A.No.881 of 1974 viz., the application to set aside the ex parte decree. Therefore, the resultant position is that the decree passed in O.S.No.373 of 1972 on 8. 1973 has become final. While so, the suit in O.S.No.535 of 1977 was filed on 8. 1977 and it was decreed on 211. 1980. The appeal preferred against the same was allowed by the District Court in A.S.No.82 of 1992. Consequently, S.A.No.134 of 1984 has been preferred. The suit in O.S.No.1395 of 1980 filed with reference to the pathway was dismissed by the trial court on 110. 1985, and on appeal, it was partly allowed on 8. 1987 against which S.A.No.1565 of 1985 is preferred. Thus, the facts and date particulars would show that the sale executed by the defendants 1 and 2 has come into existence, pending suit in O.S.No.373 of 1972 and infact, after passing of the decree on 8. 1973. Therefore, it is clearly hit by Rule of lis pendens. 17. The lower appellate court while disposing of the appeal against O.S.No.535 of 1987 in A.S.No.83 of 1982 has considered the matter property and has come to a correct decision. Before I refer to the judgment of the lower court and the argument of the learned counsel for the appellant, I would refer to the fact that under Sec.52 of the Transfer of Property Act where any suit or proceeding is pending with reference to a property, which is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. Therefore, there is no scope for a purchaser of property pendente lite to contend that he is a bona fide purchaser for value without notice or to say that he was not aware of the proceeding and had no notice of the pendency of the proceeding. Therefore, there is no scope for a purchaser of property pendente lite to contend that he is a bona fide purchaser for value without notice or to say that he was not aware of the proceeding and had no notice of the pendency of the proceeding. It has become necessary to point out this aspect for the reason that in his evidence, P.W.1 would say that he was not aware of the pendency of the proceeding and had not notice. Even assuming for a moment that the evidence tendered by him is true, even then that will not save him from the tantacles of Sec.52 of the Transfer or Property Act. Equally, the contention that property was purchased paying valuable consideration, is of no avail since Sec.52 of the Transfer of Property Act does not purport to exclude purchaser of the property for value from its operation. On the other hand, the section is emphatic in its terms that the property cannot be transferred or otherwise dealt with by any party to the suit except under the authority of the court and on such terms as it may impose. I have also referred to absence of pleadings on the aspect of fraud and collusion. 18. Though there is a long catena of cases on this aspect, I would only refer to a few of them. In Narayanan v. Official Assignee, Rangoon A.I.R. 1941 P.C. 93 the Privy Council held that fraud like any other charges of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture. 19. It was held in the earlier decision by the Privy Council in the decision reported in Hansraj v. Dehra Dun Met. Co. A.I.R. 1940 P.C. 98 that party alleging fraud is bound to establish it by cogent evidence and suspicion cannot be accepted as proof. Unless therefore the proved circumstances are incompatible with the hypothesis of the person charged with fraud having acted in good faith, they cannot be accepted as affording sufficient proof of fraud. Co. A.I.R. 1940 P.C. 98 that party alleging fraud is bound to establish it by cogent evidence and suspicion cannot be accepted as proof. Unless therefore the proved circumstances are incompatible with the hypothesis of the person charged with fraud having acted in good faith, they cannot be accepted as affording sufficient proof of fraud. The Apex Court has also held in the decision reported in Varanasaya Sanskrit Vishwavidhyalaya v. Dr.Raj Kishore Tiripathi Varanasaya Sanskrit Vishwavidhyalaya v. Dr.Raj Kishore Tiripathi Varanasaya Sanskrit Vishwavidhyalaya v. Dr.Raj Kishore Tiripathi A.I.R. 1977 S.C. 615 that it is incumbent upon the party alleging fraud and collusion to set out the necessary facts and pleadings and any vague allegation will not suffice. 20. On the doctrine of lis pendens, Allahabad High Court has held in the decision reported in Nand Kishore v. Lallu A.I.R. 1931 All. 45 that the rule of lis pendens applies to a partition suit and negatives the effect of an auction purchase made during the pendency of such a suit. Relying upon a Privy Councils decision reported in Faiyaz Husain Khan v. Paraq Narain Faiyaz Husain Khan v. Paraq Narain Faiyaz Husain Khan v. Paraq Narain (1907)29 All. 339 it was held that where a suit is contentious in its origin and nature, it is not necessary that summons should have been served to make it contentious. Further, it was held in the decision reported in P.Kathir v. O.Maremadissa P.Kathir v. O.Maremadissa P.Kathir v. O.Maremadissa 38 Mad. 450 that a contentious suit mentioned in Sec.52 of the Transfer of Property Act means the suit other then a friendly suit. The Kerala High Court had an occasion to consider the scope of Sec.52 of the Transfer of Property Act and the doctrine behind the same, in the decision reported in K.A.Khader v. Rajamma John Madathil K.A.Khader v. Rajamma John Madathil K.A.Khader v. Rajamma John Madathil A.I.R. 1994 Ker. 122 wherein it was held by the Kerala High Court that the effect of the doctrine lis pendens as embodied in Sec.52 of the Transfer of Property Act is not to annul all voluntary transfers effected by the parties to a suit but only to render it subservient to the rights of the parties thereto under the decree or order which may be made in that suit. Its effect is only to make the decree passed in the suit binding on the transferee if he happens to be a third person even if he is not a party to it. The transfers will remain valid subject, however, to the result of the suit. That this is the true legal effect of the provision will be clear from the latter part of the rule which states that the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein. That is why the Apex Court has held in the decision reported in Jayaram Mudaliar v. Ayyaswamy A.I.R. 1973 S.C. 569 that the purpose of Sec.52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the court which is dealing with the property to which claims are put forward. Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of courts and their control over the subject matter of litigation so that parties litigant before it may not remove any part of the subject matter outside the power of the court to deal with it was thus made the proceedings infructuous. 21. A Full Bench of the Orissa High Court has held in the decision reported in Sri Jagannath Mahaprabhu v. Pravat Chandra Chatterjee A.I.R. 1992 Ori. 47 the effect of Sec.52 of the Transfer of Property Act is that a lis pendens transferee is bound by the decree whether on context, ex parte or on compromise. The plaintiff is under no obligation to implead a lis pendens transferee. Sec.52 of the Act has been enacted with a view to safeguarding the interest of the plaintiff so that his decree is not defeated at the instance of a third party in whose favour there has been a lis pendens transfer. However, it was held that though the plaintiff not bound to implead him, the court can in its discretion can implead him as a proper party. 22. It was heldby this Court in the decision reported in Pattumadammal v. Nanjappa A.I.R. 1939 Mad. However, it was held that though the plaintiff not bound to implead him, the court can in its discretion can implead him as a proper party. 22. It was heldby this Court in the decision reported in Pattumadammal v. Nanjappa A.I.R. 1939 Mad. 275 that when a son has filed an application for leave to sue informa pauperis praying for partition of the joint family properties against his father, the rule of lis pendens would operate from the date of the application for leave to sue informa pauperies and from that date, the plaintiff must be deemed to have become separated from his father and the mortgage executed after the application cannot be held to be binding on his share where Court relied upon the decision reported in Manama Rama Rao v. Manama Venkata Subhaya Rama Rao v. Manama Venkata Subhaya Rama Rao v. Manama Venkata Subhaya A.I.R. 1937 Mad. 274. It was held in the decision reported in Gharbhoya Bhimji v. Deodatta Bihari Gharbhoya Bhimji v. Deodatta Bihari Gharbhoya Bhimji v. Deodatta Bihari A.I.R. 1937 Nag. 400 that the principle of the doctrine of lis pendens applies even to auction sales and mere admission by defendant of plaintiffs claim would not under suit non-contentious. 23. In the decision reported in A.Kulandaivelu Pillai v. Sowdagammal A.Kulandaivelu Pillai v. Sowdagammal A.Kulandaivelu Pillai v. Sowdagammal A.I.R. 1945 Mad. 350 it was held as follows: “Sec.52 expressly provides for all cases of decrees in suits relating to immovable property whether they involve a mortgage or a charge or recovery of possession. It makes no exception in favour of a bona fide transferee for value without notice. It hits against all transfers which is in force. The principle underlying Sec.100 can come into play, namely, the postponement of the rights of a charge holder to the right of a bona fide purchaser for value without notice. Where the charge falls within the ambit or scope of Sec.52, there is an end altogether of the transfer or alienation prevailing over the rights of the party in whose favour a charge has been created under the decree. The addition in para.2 of Sec.100 made by the Amending Act of 1929 does not introduce any new law. Where the charge falls within the ambit or scope of Sec.52, there is an end altogether of the transfer or alienation prevailing over the rights of the party in whose favour a charge has been created under the decree. The addition in para.2 of Sec.100 made by the Amending Act of 1929 does not introduce any new law. It clarifies what the rights and liabilities of a chargeholder have always been.” In the said decision, it was held that the sale of the insolvents property by the Official Receiver is private sale and not a sale by operation of law and therefore governed by Sec.52 of the Transfer of Property Act. 24. The Apex Court has held in the decision reported in Nagubai v. B.Shama Rao Nagubai v. B.Shama Rao Nagubai v. B.Shama Rao A.I.R. 1956 S.C. 593 that there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. Collusion in judicial proceeding is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is in true, but that the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practising fraud on the court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings, the combat is a mere sham, in a fraudulent suit, it is real and earnest. 25. Thus, we find that when the plaintiff wherein states that it is collusive one in one breath while in the same breath, he says that it is fraudulent. Therefore, according to the plaintiff, the combat in the suit is mere sham, while according to him, the suit is real and earnest. Thus, the plaintiff cannot be allowed to plead a conflicting case. Therefore, according to the plaintiff, the combat in the suit is mere sham, while according to him, the suit is real and earnest. Thus, the plaintiff cannot be allowed to plead a conflicting case. Therefore, applying the above Rulings, if we analyse the case of the plaintiff, it will be clear that the plaintiff has failed miserably to substantiate the contention that it is a decree obtained by fraud or by collusion. 26. Learned counsel of the appellant submitted that the trial court has dealt with the matter elaborately and has come to a right conclusion and therefore, there is no justification for the appellate court to have interfered with the same. It has to be stated that the trial court has not understood the scope and effect of Sec.52 of the Transfer of Property Act and it has not considered the mandatory Rule enshrined in O.6, Rule 4 of the Code that materials as to fraud and collusion should be set out in the plaint. The trial court has chosen to consider the validity of decree in O.S.No.125 of 1970. In O.S.No.125 of 1970, the court did not upheld the will dated 11. 1960. But, in O.S.No.373 of 1972 the Will has been upheld by the court. The plaintiffs in O.S.No.373 of 1972 are not parties to O.S.No.125 of 1970. Therefore, any observation made in O.S.No.125 of 1970 or any finding given cannot bind the plaintiffs in O.S.No.373 of 1972. In para.21, the trial court has stated that it is not possible for P.W.1 to lead direct evidence on the question of fraud and collusion. .27. I do not know how such a finding has been given by the trial court. What are the reasons for arriving at such a findinge If a person alleges fraud, it is incumbent upon him to prove the same. Civil Procedure Code requires that details of fraud, undue influence, mis-representation, breach of trust and wilful, neglect are to be set out precisely. If it is not done and the plaintiff is to be excused on the ground that he will not be in a position to furnish details and adduce direct evidence, then by merely making a vague allegation any one can file a suit to set aside the decree of a competent court and obtain a decree. Then, the proceedings of a court will be made a mockery. Then, the proceedings of a court will be made a mockery. The trial court has also stated that fraud and collusion must be gathered from the surrounding circumstances. At least as to the surrounding circumstances, there must be evidence placed before court. What was the nature of evidence placed by the plaintiff before court as to the surrounding circumstances, the trial court has not stated nor applied its mind to that vital aspect. It is curiously remarked by the Subordinate Judge that collusion was between the parties only on the date of passing of the decree and there was no collusion between the parties after the same. Such a case is not been even pleaded by the plaintiff. There cannot be such a factual situation, that there was collusion between the parties only at a particulars stage. Collusion, is collusion whether it was at a particular point of time or whether it continued throughout. Just because it is not possible for the plaintiff to gather particulars of fraud, the plaintiff cannot be excused from proving fraud. Nor the failure of the plaintiff to place specific details of fraud can be condoned. From the very Judgment of the trial court, it is clear that P.W.1 is not a stranger to the locality. If it is so, how it is possible for him to say that he was not aware of the proceeding or how it is open for him to contend that he purchased the property in such circumstances. Merely because P.W.1 asserts that he is not aware of the pendency of O.S.No.373 of 1972, the matter does not end there. If the assertion of a party is to be taken as infalliable proof, then every plaintiff would assert his case and every defendant would disown it. Then where the court stands. Thus, the appreciation is immature. Thus, the entire judgment of the trial court proceeds on assumptions and presumptions, and there is considerable begging of question. It is simply stated that merely because P.W.1 happens to be a neighbour and person of that locality, one cannot expect him as to know as to what is going on in a court of law. This is not the way to decide the suit, Nor Sec.52 of the Transfer of Property Act can be so lightly dealt by the Courts. This is not the way to decide the suit, Nor Sec.52 of the Transfer of Property Act can be so lightly dealt by the Courts. The immature appreciation by the lower court was set right by the appellate court. 28. It is also to be pointed out that in this case, the defendants 1, 3 and 4 as the plaintiffs in O.S.No.373 of 1972 filed an application in I.A.No.374 of 1972 and obtained an order of injunction against the vendors of P.W.1 and in spite of the order, the property has been sold to the plaintiff under Ex.A-4. The trial court has presumed the decree to be invalid and has proceeded to assess the case of the parties on that presumption, for which there is no factual or evidentiary basis. The trial court has committed a mistake in observing that the pendency of the suit in O.S.No.373 of 1972 was not brought to the notice of P.W.1. Apparently, the trial court has not read properly Sec.52 of the Transfer of Property Act. Sec.52 does not intend to exclude from its operation, persons viz., purchasers of the property pending litigation without notice. .29. The trial court has committed yet another mistake. The trial court has held that in O.S.No.373 of 1972, there was no proper evidence to prove the truth and validity of the Will, and therefore, on that ground also the decree in O.S.No.373 of 1972 is liable to be set aside. Whether there was proper proof of the Will or not, is a question that ought to have been agitated by the parties affected by the decree in O.S.No.373 of 1972 by preferring an appeal against the same. When they have failed to do so, and when the application filed by them to set aside the ex parte decree was dismissed, the decree has become final and conclusive and thereafter, it cannot be challenged on any ground. Only on clear and categoric proof of fraud, the decree can be set aside and if there was any lapse in following the Rule of Evidence with regard to proof of will, on that ground, a decree cannot become vitiated or invalid in the eye of law. What is stated in the Evidence Act with reference to proof of will is only a Rule of Evidence. Even if there is a breach of that Rule, that cannot make the decree invalid. What is stated in the Evidence Act with reference to proof of will is only a Rule of Evidence. Even if there is a breach of that Rule, that cannot make the decree invalid. The person affected by the decree can always challenge the same saying that the Rule of evidence with regard to proof of will has not been complied with by the parties concerned. I do not know how it is open to the Sub Judge to say that on this account, the decree is invalid. Thus, the entire judgment of the trial court proceeds on erroneous approach, misconception of law, immaturity of thought and what not. The trial Judge had laboured under a misapprehension and mis-conception of law. He has failed to consider the scope of O.6, Rule 4 of the Code and the impact of Sec.52 of the Transfer of Property Act and the absence of evidence on record. 30. Therefore, the appellate court rightly stepped in and interfered with the judgment of the trial court. The appellate court has also gone into the question of the truth and validity of the sale deed in favour of the plaintiff in O.S.No.373 of 1972. It has referred to the fact that there was no written agreement of sale and conveniently an oral agreement of sale is put forward. It has also referred to the evidence of P.W.1 and the contradictions in evidence as regard to the date of payment of sum of Rs.12,000. A receipt was produced in the lower court, which was blank in material particulars. The receipt was referred to by the appellate court and it is also to be pointed out that the evidence of P.W.1 on this aspect is quite halting. The trial court has simply refrained from going into this aspect. While it presumed the decree in O.S.No.373 of 1972 to be collusive one, it also presumed the truth and validity of the sale in favour of the plaintiff, overlooking the obvious inconsistencies and discrepancies in the evidence of P.W.1. A blank receipt has been filed. The trial court has not even cared to look into the receipt. While it presumed the decree in O.S.No.373 of 1972 to be collusive one, it also presumed the truth and validity of the sale in favour of the plaintiff, overlooking the obvious inconsistencies and discrepancies in the evidence of P.W.1. A blank receipt has been filed. The trial court has not even cared to look into the receipt. This only shows that the trial court was observed with the view that the decree is a collusive one forgetting for moment the fact that it is necessary that the plaintiff must first of all show that she has some right to question the same, which can be done only if she proves the truth and validity of the deed. 31. P.W.1 has stated that before he has purchased any property in favour of Chenchulakshmi, she had no property of her own and she had no separate income of her own. He admits that no agreement was entered into with D-1 and D-2 before purchasing the property. He would say as follows: He admits that when the oral agreement took place only Yogi Gounder and Alagirisami Naidu were present. Though he admits that they are alive, they have not been examined. According to him, he had a sum of Rs.12,000 being his gratuity readily available with him and therefore, he did not enter into any agreement and purchased the property. If really, he had the cash with him ready, there was no necessity for an oral agreement, he would have straight away purchased the property. Why should there be an oral agreement, if he had the necessary fund with hime According to him D-1 and D-2 told him that sale deed itself can be executed, while so there could not have been any necessity to enter into any oral agreement. He admits that on the date of Ex.A-4 the entire sale consideration was readily available in his hand. He also states that on the date of sale deed, he handed over the entire sale consideration to the vendor. When the recital in Ex.A-4 was brought to his notice, he simply avoided it. He would also say that the recitals in Ex.A-4 are correct and that he paid Rs.8,000 as recited in the document and that he does not know whether he obtained any receipt. Thus, he would say that he had the entire sum of Rs.12,000 and he paid the same. He would also say that the recitals in Ex.A-4 are correct and that he paid Rs.8,000 as recited in the document and that he does not know whether he obtained any receipt. Thus, he would say that he had the entire sum of Rs.12,000 and he paid the same. Again he would say that he paid Rs.8,000 only. He says that he had the receipt readily available, but the same is not produced. He also speaks to the mortgage debt in favour of on Palanisamy and to discharge that he paid Rs.2,000 to the vendor. But the said Palanisamy Gounder is not examined. The recitals in the sale deed are not so. Further he would say It is not known how there can be a and also a pronote. Therefore, a reading of the evidence would show that only litigation has been purchased under the sale deed. Only in the course of reexamination, a receipt was produced for payment of Rs.8,000 and marked as Ex.A-6. He has signed the depositor, but yet in the course of cross-examination, he would say that he does not know to read and write. He says that he does not know whether there is any signature in Ex.A-6 and whether Ex.A-6 has been attested. He also admits that he does remember the date when Rs.8,000 was paid. According to him, on the very same day when Ex.A-4 was registered, he paid Rs.8,000 and the entire sum of Rs.12,000 was paid on the date of registration. If it is true, why Ex.A-6 should come into existence, he is unable to explain. 32. Learned counsel for the appellant would contend that the appeal is barred by limitation. According to him the appeal was preferred against the judgment in O.S.No.535 of 1977, to the High Court directly. But, the High Court returned the same. But it was represented before the lower court long after and therefore, the judgment of the lower appellate court has to be set aside. From the appeal papers we find that the appeal was presented before High Court on 4. 1981. It was presented within time on which there is no dispute. It was returned on 33. 1982 and in the first return, it is stated that how the appeal is filed in this Court, when the subject matter of the appeal is only Rs.5,000. 1981. It was presented within time on which there is no dispute. It was returned on 33. 1982 and in the first return, it is stated that how the appeal is filed in this Court, when the subject matter of the appeal is only Rs.5,000. Then the appeal was returned and was presented before the District Court on 4. 1982. Therefore, the learned counsel for the appellant would contend that on the date when the matter was taken as appeal by the District Court, the appeal was barred by limitation, and therefore, on that ground, the judgment of the lower appellate court has to be set aside. 33. I cannot accept this contention. Such a contention ought to have been raised in the lower appellate court itself. The lower appellate court would not have taken the appeal on file, unless it was in time. When the High Court returned the papers, it did not direct the appellant to present the appeal before the lower court within any particular time. Therefore, when the lower appellate court took the appeal on file, it must be taken that the lower appellate court considered the question of possible limitation and was satisfied that there was no limitation and hence entertained the appeal. As pointed out already, before the lower appellate court the defendants did not choose to raise the question of limitation. Nor any argument was addressed on that aspect before the lower appellate court. Even in the grounds of appeal now filed, such a contention is not raised. 34. Learned counsel for the appellant would say that since it is a question of law it can be raised at any time even if it is not so pleaded. Pure question of law can be agitated before court even if it is not specifically mentioned in the grounds of appeal. But, it cannot be contended that it is a pure question of law in the sense that some facts are necessary to know as to what happened before the trial court. We have only the order or return of the appeal by this Court and re-presentation of the appeal before the lower appellate court. The lower appellate court has numbered the appeal and taken it on file. We do not know whether the advocate for the appellant was heard by the court before taking the appeal. Therefore, this is a question of fact. The lower appellate court has numbered the appeal and taken it on file. We do not know whether the advocate for the appellant was heard by the court before taking the appeal. Therefore, this is a question of fact. Hence, unless the other side had the opportunity to know the stand, and place their case on the ground it is a question of law, it cannot be allowed to be raised. In the circumstances if is not only a mixed question of law and fact. 35. The learned Senior Counsel Mr.T.R.Rajagopalan relied upon the decision reported in Krishnasami Panikondar v. Ramasami Chettiar Krishnasami Panikondar v. Ramasami Chettiar Krishnasami Panikondar v. Ramasami Chettiar I.L.R. 41 Mad. 142 as follows: “The admission of an appeal after the period of limitation has expired deprives the respondent of a valuable right by putting in peril the finality of the order in his favour. When an order admitting an appeal has been made in the absence of the respondent, and without notice to him to preclude him from questioning its propriety would amount to a denial of justice. Such an order so made, should therefore be treated as open to reconsideration at the instance of the respondent This view is sanctioned by the Courts in India.” But it cannot be stated or presumed that appeal was preferred after the period of limitation. If there was any question of limitation, the lower appellate court would have definitely gone into it. Further, Sec.14 of the Limitation Act would be attracted. The return was made by the Court without specifying the period for representation. Hence, the above ruling will not apply. Therefore, it is not possible to accept this contention of the learned counsel for the appellant. 36. Therefore, I am satisfied that the judgment and decree of the lower appellate court cannot be disturbed. It has been arrived at on a proper consideration of the materials on record. There is no error in the approach nor any mistake in the appreciation of the court below. Nor any material evidence has been ignored. It cannot also be stated that the lower appellate court arrived at certain findings not based on materials. Therefore, in such circumstances, the appeal in S.A.No.134 of 1984 deserves to be dismissed as devoid of merits. 37. Nor any material evidence has been ignored. It cannot also be stated that the lower appellate court arrived at certain findings not based on materials. Therefore, in such circumstances, the appeal in S.A.No.134 of 1984 deserves to be dismissed as devoid of merits. 37. Now coming to the appeal in S.A.No.1567 of 1987, in view of the fact that the decree in O.S.No.373 of 1972 has been confirmed by the lower court and that finding has been accepted by this Court, it follows that the plaintiffs in O.S.No.373 of 1972 are entitled to certain shares in the property. Therefore, the plaintiffs in O.S.No.125 of 1970 cannot claim to be entitled 8/9th share. Consequently, their share in the property will be regulated by the decision in O.S.No.373 of 1972. This brings about a change in the scene, which cannot be ignored. 38. Nextly, it is to be pointed out that the sale in favour of the plaintiff is not longer valid and is subject to the decree in O.S.No.373 of 1972. The suit in O.S.No.1395 of 1980 is filed on the basis of the sale deed in her favour. The lower Court while disposing of the appeal against the decree in O.S.No.535 of 1987 has clearly held that the sale cannot be a true and valid transaction. I have also accepted the finding of the lower appellate court in that regard. Therefore, when the sale in favour of the plaintiff has been affected and hit by the rule of lis pendens. It is not a valid sale upon which any cause of action can be pleaded by the plaintiff. Nor any relief can be asked for on the basis of the same. Therefore, in that view of the matter, this appeal has to be allowed, restoring the judgment and decree of the trial court. 39. The tenants have admitted clearly that they were not prevented from using the said property and they are using it for ingress and egress. Therefore, this aspect of the plaintiffs case is falsified by the very evidence of the tenant. As pointed out by the trial court, the plaintiff has not chosen to give the measurements of the said common lane, which is the subject matter of the suit. The plan attached to I.A.No.151 of 1977 in O.S.No.125 of 1970 does not contain any measurement. Even in the document dated 9. As pointed out by the trial court, the plaintiff has not chosen to give the measurements of the said common lane, which is the subject matter of the suit. The plan attached to I.A.No.151 of 1977 in O.S.No.125 of 1970 does not contain any measurement. Even in the document dated 9. 1973, there is no reference made to the measurements of the common passage. Even in the application filed in I.A.No.492 of 1980 in O.S.No.535 of 1977, the plaintiff did not choose to give the measurements of the lane. The main contention of the plaintiff is that the defendants have put up the stair case in the common lane, thereby reducing the area and preventing access. A commissioner was appointed in the case by the lower court, pursuant to the order passed in I.A.No.1507 of 1980 and the report and plan of the Commissioner were marked as C-1 and C-2. As pointed out by the trial court objection was not filed by the plaintiff to the report. The Commissioner has pointed out that the so-called passage measures about 5’ 11 “ at the Sukrawarpet Main Road end it proceeds towards north. The measurement of the passage is not uniform and it measures 4’ 6”, 2’7“, 2’ 11” and 4’ 2 “ at different points and at the place shown by the Commissioner ‘POQR’ near the terraced protein suit by the defendants, it measures 3’ 3”. Near Sukrawarpet Main Road, it measures 5’ 11“, At point ‘PQ’ it measures 2’ 7”, and it measures 4’ 6 “ after the stair-case portion. Thus, we find that the trial court has observed that on account of the construction of the stair case, the width of the passage has been reduced to 2’ 7”. The Commissioner has pointed out that in front of the plaintiffs house, it is only 2’ 11 “ and only after it passes the plaintiffs house it measures 4’ 11”. Just as the width of the passage was reduced by the defendants, the plaintiff has also reduced the width of the passage by putting up paid and the width of the passage in front of the defendants’ house is about 2’ 7“. Therefore, both the parties have encroached upon the passage. The plaintiff has left only 2’ 7” width of passage in front of his house. Therefore, both the parties have encroached upon the passage. The plaintiff has left only 2’ 7” width of passage in front of his house. Similarly, the defendants had left only 2’ 11 “ of width of passage near the stair case. Thus, both the parties have by their conduct, have only set apart a width of 2’ 7” to be enjoyed as a pathway. The plaintiff himself has reduced the width of the passage and cannot now complain of the reduction of width by the defendant. As pointed out already, none of the witnesses examined by the plaintiff has stated that they have been prevented from having access to the building or that the defendants in any manner obstructed the taking of soilage water through the common pathway. Therefore, as rightly pointed out by the trial court, the plaintiff has failed to establish his case. 40. The lower appellate court has failed to appreciate these aspects. It has accepted the fact that the width of the common passage is not uniform. It varies from 5’ 11 “ to 2’ 7”. Therefore, in such circumstances, the judgment of the lower appellate court cannot be sustained. The lower appellate court has failed to take note of these vital circumstances. Hence, it follows that it is necessary to interfere with the judgment of the lower appellate court. 41. In the result, Second Appeal No.134 of 1984 is dismissed, confirming the judgment and decree of the a lower appellate court. Second Appeal No.1565 of 1987 is allowed, setting aside the judgment and decree of the lower appellate court and restoring that of the trial court. In the circumstances of the case, the parties are directed to bear their costs own.