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2016 DIGILAW 144 (CAL)

Binapani Halder v. Binoy Krishna Banik

2016-02-08

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : Ashis Kumar Chakraborty, J. 1. This second appeal is directed against the judgment and decree dated July 09, 2010 and July 15, 2010, respectively passed by the learned Additional District Judge, 4th Court, Nadia, in Title Appeal No. 59 of 2006 thereby affirming the judgment and decree March 29, 2006 passed by the learned Civil Judge (Senior Division), 1st Court, Krishnagar, in Title Suit No. 50 of 1996 (hereinafter referred to as the “present suit”). 2. The present suit was filed by the respondent no. 1 and his wife Smt. Gita Banik against Tara Prasad Haldar (hereinafter referred to as “Tara Prasad”, for convenience). During the pendency of the suit, the plaintiff no. 2 Smt. Gita Banik died leaving behind her husband the respondent no. 1, and his son, the respondent no. 2 in the appeal, who was substituted as plaintiff no. 2 in the suit. In the present suit, the plaintiffs claimed declarations that the decree dated February 23, 1995 obtained by Tara Prasad in Title Suit No. 51 of 1987 passed by the Civil Judge (Senior Division), 1st Court, Krishnagar and the sale deed dated February 19, 1996 executed in favour of Tara Prasad on the basis of the said decree dated February 23, 1995 in respect of (Ka) schedule suit property are all vitiated by fraud practised upon the Court, a decree for declaration of their title in respect of the (Ka) schedule suit property, decree for permanent injunction restraining Tara Prasad from interfering with their possession in respect of the suit property and a note of decree of declaration of the (Ga) schedule Kobala as fraudulent be sent to the concerned sub-Registrar. 3. The case of the plaintiffs in the plaint was that the properties being Plot No. 204, measuring 26 decimal of land and Plot Nos. 205, 206 and 207 measuring 2 decimal of land each, total 33 decimal land, under Khatian No. 833 of Mouza 94 Rabindra Sarak, Ward No. 22, P.S. Kotwali, within Krishnagar Municipality (hereinafter referred to as the “original property”) was owned by one Bholanath Ganguly who had five sons. 205, 206 and 207 measuring 2 decimal of land each, total 33 decimal land, under Khatian No. 833 of Mouza 94 Rabindra Sarak, Ward No. 22, P.S. Kotwali, within Krishnagar Municipality (hereinafter referred to as the “original property”) was owned by one Bholanath Ganguly who had five sons. After the death of Bholanath, in a partition suit, the original property was allotted to his three sons namely, Nibaran, Probodh and Sudhir, in equal share and by virtue of an amicable settlement between the said three brothers, one-third share in the original property comprising homestead including pacca dalan, wall, privy etc. and a few tenanted shop rooms on 11 decimal of land, that is, 5 decimal in Plot No. 204 and 2 decimal each in Plot Nos. 205, 206 and 207 of Holding Nos. 35 and 38, Mouza 94 Rabindra Sarak, within Krishnagar Municipality, Ward No. 22 (hereinafter referred to as the “suit property”) was allotted to Sudhir. 4. By a registered sale deed dated September 07, 1953, Sudhir transferred the suit property to his brother Santosh. Thereafter, both Sudhir and Santosh died. By a registered sale deed dated July 11, 1959 the heirs and legal representatives of Santosh transferred the suit property to the wife of Sudhir, namely, Jyotirmoyee Devi who was residing with her sons and daughters at Purulia. According to the plaintiffs, by two separate registered sale deeds both dated May 11, 1990 the said Jyotirmoyee Devi transferred two parts the suit property to the plaintiff nos. 1 and his wife, respectively and by another registered deed of May 11, 1990 the said Jyotirmoyee Devi transferred her remaining share in the suit property to one Madan Mohan Ghosh. In terms of the said sale deeds, the said Jyotirmoyee Devi put the original plaintiffs and Madan Mohan Ghosh into possession of the respective portions of the suit property purchased by them. Subsequently, by a registered deed of sale dated November 14, 1990 the said Madan Mohan Ghosh also transferred his share in the suit property to the plaintiff no. 1. Thus, the plaintiffs claimed that they became the owners of the entire suit property and they are in peaceful possession and enjoyment of the same, by paying rents and taxes in respect of the suit property to the Government and the Municipality. 1. Thus, the plaintiffs claimed that they became the owners of the entire suit property and they are in peaceful possession and enjoyment of the same, by paying rents and taxes in respect of the suit property to the Government and the Municipality. In the suit property there are some shop rooms occupied by tenants who refused to accept the letters of attornment issued by the plaintiffs. However, in the last part of February 23, 1995 when the plaintiff no. 1 started to repair the boundary wall of the suit property, Tara Prasad produced a decree obtained by him in Title Suit No. 51 of 1997 passed by the First Court of Civil Judge, (Senior Division), Nadia, Krishnagar and a registered Kobala executed in his favour through the said Court on behalf of the said Jyotirmoyee Devi and others and sought to disposses the plaintiffs from the suit property. The plaintiffs made enquiries and came to know that Tara Prasad had filed the Title Suit No. 87 of 1951 before the Court of the Assistant District Judge, First Court, Krishnagar against the said Jyotirmoyee Devi and other heirs and legal representatives of the said Sudhir, since deceased claiming a decree for specific performance of an oral agreement allegedly entered into by him with the said legal representatives of Sudhir for transfer of their property; in the said suit an ex-parte decree for specific performance was passed on February 23, 1995 when the said Jyotirmoyee Devi had already died on December 07, 1992 and her two sons Prabir and Pranab had also died in the year 1989 and 1994, respectively. The plaintiffs further alleged that the said ex parte decree dated February 23, 1995 obtained by Tara Prasad, in the said Title Suit No. 51 of 1987 was vitiated by fraud and consequently, the deed of conveyance dated February 19, 1996 executed by the learned Court , in favour of Tara Prasad is also void and not binding upon them. 5. Tara Prasad contested the suit by filing a written statement and additional written statement denying all the material allegations made in the plaint. He raised objections to the maintainability or the suit. 5. Tara Prasad contested the suit by filing a written statement and additional written statement denying all the material allegations made in the plaint. He raised objections to the maintainability or the suit. Firstly, on the ground that as the plaintiffs purchased the suit property on May 11, 1990 during, the pendency of the said Title Suit No. 51 of 1987 and subsistence of the order of injunction against the defendant no. 2 in the said suit and, therefore, the plaintiffs’ suit was barred by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882. The second ground was that he is in possession of the suit property and though the plaintiffs have claimed declarations that the decree dated February 23, 1995 passed in the said Title Suit No. 51 of 1987 and the deed of conveyance dated December 22, 1995 by the Court is void and not binding upon them, as also their title in respect of the suit property but the plaintiffs have not claimed the consequential relief for recovery of possession of the suit property and as such the suit is barred by the Proviso to Section 34 of the Specific Relief Act, 1963. 6. In his written statement, particularly paragraph 41 thereof, Tara Prasad also alleged that he had already purchased from both Nibaran and Probodh, the said brothers of Sudhir, their respective one-third share in the original property and obtained possession of their respective demarcated shares of the original property. He also claimed to be in possession of the suit property of the present suit, as the heirs of Sudhir resided at a distant place and having no other alternative they agreed to sell the suit property to him at a consideration of Rs. 25,000/-. He paid Rs. 2,500/- to the heirs of Sudhir as earnest money and the balance consideration was payable after seven years. He alleged that as the heirs of Sudhir failed to execute the sale deed in respect of the suit property in his favour, he filed the suit for specific performance being Title Suit No. 51 of 1987 against them which was decreed ex-parte on February 23, 1995. He alleged that as the heirs of Sudhir failed to execute the sale deed in respect of the suit property in his favour, he filed the suit for specific performance being Title Suit No. 51 of 1987 against them which was decreed ex-parte on February 23, 1995. Since in spite of passing of the said decree, the heirs of Sudhir did not execute the conveyance in respect of the suit property in his favour, on February 19, 1996, the learned executing Court executed the Kobala on behalf of the heirs of Sudhir and on February 25, 1996 he was delivered possession of the suit property by the Court. After obtaining possession of the suit property between February 26, 1996 and March 20, 1996 he constructed the pacca boundary wall, small motor garage and the small pacca room at the suit property. He issued letters of attornment to the tenants occupying various shop rooms at the suit property and the said tenants have been paying rent to him through proper rent receipts. He also claimed to have been paying rent in respect of the suit property to the State of West Bengal in the name of Sudhir and others and have applied before the Krishnagar Municipality for mutating his name in respect of the suit property. The last defence of Tara Prasad in his written statement was that he has been in possession of the suit property for more than twelve years with the knowledge of the plaintiffs and others, openly adversely and claimed right, title in respect of the suit property by adverse possession. Tara Prasad also claimed that the present suit is liable to be dismissed on the ground of non -payment of ad velorem Court fees. 7. Considering the averments made by the plaintiffs and Tara Prasad in this respective plaint and written statement, the learned trial Judge framed the following issues, 1. Is the suit maintainable in its present form? 2. Have the plaintiffs any cause of action or right to sue? 3. Is the suit barred u/s 34 of the Specific Relief Act? 4. Was the ex parte decree passed in Title Suit No. 51 of 1987 obtained by fraud, collusion, and misrepresentation practised upon the court? 5. Are the plaintiffs entitled to get the reliefs as prayed for? 6. To what other relief or reliefs, if any are the plaintiffs entitled? 7. 4. Was the ex parte decree passed in Title Suit No. 51 of 1987 obtained by fraud, collusion, and misrepresentation practised upon the court? 5. Are the plaintiffs entitled to get the reliefs as prayed for? 6. To what other relief or reliefs, if any are the plaintiffs entitled? 7. Are the deeds of sale standing in the name of the plaintiffs in respect of the suit property hit by the principle of lis pendens? 8. Are the registered deed of sale, dated 19th February, 1996 in respect of the suit property standing in the name of the defendant and the writ of delivery of possession obtained by fraud on the court? 9. Has the defendant acquired any right, title, interest in respect of the suit property by virtue of adverse possession? 8. At the trial of the suit, plaintiff no. 1 himself adduced evidence as PW1, together with his three neighbours (PW-2, PW- 3 and PW-4) and two clerks of the District Sub-Registry Office, Krishnagar (PW4) and A.D.S.R., Purulia (PW-5) respectively. On behalf of Tara Prasad, his son, the present appellant no. 1 (DW-1) and three persons claiming to be the tenants of the shop rooms at the suit property DW- 2, DW-3 and DW-4 and the clerk of the Krishnagar Municipality (DW-5) adduced evidence. 9. After appreciating the material evidence adduced by the respective parties, the learned trial Judge found that the suit property and two adjoining plots of land, comprising the original property, was originally owned by Bholanath and after his death, in a partition suit between his five sons, the original property was allotted in favour of his three sons Probodh, Nibaran and Sudhir each having one-third share in the original property. The said three brothers partitioned their respective one-third share in the original property, by metes .and bounds. By two registered conveyances both dated April 12, 1980 (Exts. “I” & “J”) Nibaran and the legal representatives of Probodh transferred their respective demarcated one-third share in the original property, that is, 10.5 decimal of land each, in favour of Tara Prasad. The said three brothers partitioned their respective one-third share in the original property, by metes .and bounds. By two registered conveyances both dated April 12, 1980 (Exts. “I” & “J”) Nibaran and the legal representatives of Probodh transferred their respective demarcated one-third share in the original property, that is, 10.5 decimal of land each, in favour of Tara Prasad. In the meantime, by a registered sale deed dated September 07, 1953 (Ext.-“16”) Sudhir transferred his one-third share, being the suit property to Santosh and after the death of Santosh by another registered sale deed dated July 11, 1959 (Ext.-“2”), the heirs and legal representatives of Santosh transferred the suit property to Jyotirmoyee Devi, the wife of Sudhir, since deceased. By three separate registered sale deeds all dated May 10, 1990 (Exts. “3”, “3/1” and “3/2” respectively), the said Jyotirmoyee Devi transferred and made over possession of 4.75 decimal, 2.5 decimal and 4.5 decimal of land in the suit property in favour of the plaintiff no. 1, original plaintiff no. 2 and one Madan Mohan Ghosh, respectively. Subsequently, by a registered sale deed dated November 14, 1990 (Ext.-“4”) the said Madan Mohan Ghosh transferred and made over possession of his 4.5 decimal of land, in the suit property to the plaintiff no. 1. The learned trial Judge also found that out of the total 32 decimal of land owned by Bhagaban, Sudhir having one-third share was the owner of 11 decimal of land, comprising 5 decimal in Plot No. 204 and 2 decimal each, in Plot Nos. 205, 206 and 207. In the original plaint filed in the said Title Suit No. 51 of 1987 Tara Prasad, as the plaintiff claimed a decree for specific performance of an oral agreement against the heirs of Sudhir in respect of 10.5 decimal of land with structures, in Plot No. 204 under Khatian No. 833 comprised in Holding No. 36, Rabindra Sarak under Ward No. 22 of Krishnagar Municipality whereas, the suit property in the present suit, comprises 5 decimal of land in Plot No. 204 and 2 decimal of land in each of the Plot Nos. 205, 206 and 207, all under Khatian No. 833 in Holding Nos. 35 and 38 under Ward No. 22 of Krishnagar Municipality. 10. 205, 206 and 207, all under Khatian No. 833 in Holding Nos. 35 and 38 under Ward No. 22 of Krishnagar Municipality. 10. The learned trial Judge further found that in the said Title Suit No. 51 of 1987, the said Jyotirmoyee Devi together with his three sons and four daughters were impleaded as the defendants, all residing in the District of Purulia and the writ of summons together with the copy of the plaint were only served upon Jyotirmoyee Devi and her two daughters, namely Reba Ganguly and Dulu Ganguly when the schedule of the plaint described the suit property as Plot Nos. 204 under Khatian No. 833 comprised in Holding No. 36, Rabindra Sarak under Ward No. 22 of Krishnagar Municipality. According to the learned trial Judge since the one-third share of Jyotirmoyee Devi in the original property, fell in Holding Nos. 35 and 38 and not in Holding No. 36 as mentioned in the schedule of the plaint in the said Title Suit No. 51 of 1987, Jyotirmoyee Devi had reason to think that the suit property involved in the said suit was not her property. Similarly, even the two daughters of Jyotirmoyee Devi who had received the copy of the original plaint of the said suit also had reason to believe the suit property in the said suit was not their mother’s property. The learned trial Judge also found that the Tara Prasad’s son who adduced evidence of his behalf in his evidence did not dispute the fact that Jyotirmoyee Devi alone was the owner of the suit property, of the present suit she died on December 07, 1992 and one of her son Pranab (who was originally the defendant no. 2 in the suit, but by way of amendment made defendant no. 1) also expired on March 16, 1994. No step was taken for substitution of the heirs of the said Pranab the deceased Tara Prasad. During the lifetime of Pranab the writ of summons of the suit was not served upon him at all. 2 in the suit, but by way of amendment made defendant no. 1) also expired on March 16, 1994. No step was taken for substitution of the heirs of the said Pranab the deceased Tara Prasad. During the lifetime of Pranab the writ of summons of the suit was not served upon him at all. Further, when in the cause title of the plaint all the defendants, that is, Jyotirmoyee Devi and his children were described as residents of the District of Purulia, on September 03, 1994, when Jyotirmoyee Devi and Pranab had already died, in the said Title Suit No. 51 of 1987 Tara Prasad obtained an ex parte order allowing substituted service of summons under Order V Rule 20 of the Code of Civil Procedure by alleging that defendants in the said suit were last residing in the District of Nadia. Thereafter, on September 08, 1994 Tara Prasad further obtained an ex parte order allowing amendment of the schedule of the plaint filed the said Title Suit No. 51 of 1987 to include 2 decimal of land, in each of the Plot Nos. 205, 206 and 207 of Holding No. 36. The learned trial Judge found that this amended plaint with new plot numbers in the schedule of the suit property was not served upon any of the surviving defendants of the said Title Suit No. 51 of 1987. According to the learned trial Judge, Tara Prasad’s son who adduced evidence on behalf of Tara Prasad, as DW-1 admitted in his cross-examination, that all the heirs and legal representatives of Sudhir, being Tara Prasads in the said Title Suit No. 51 of 1987 were permanent residents of Purulia and he failed to explain as to what prevented his father in causing the substituted service at their address in the District of Purulia. 11. The learned trial Judge held that the substituted service of summons of Title Suit No. 51 of 1987 was not at all done properly and the same was done practically by misleading the Court, by way of misrepresenting the address of defendants in the said suit. The learned trial Judge further held that the defendants in the said Title Suit No. 51 of 1987 had no opportunity at all to acquire any knowledge about the correction of the schedule of the plaint of the present suit. The learned trial Judge further held that the defendants in the said Title Suit No. 51 of 1987 had no opportunity at all to acquire any knowledge about the correction of the schedule of the plaint of the present suit. With regard to the order of injunction dated November 22, 1989 passed in the Title Suit No. 51 of 1987, the learned trial Judge found the said order was obtained against Pranab (the defendant no. 2) who had no right or interest in the suit property and in any event the said order of injunction was enforced in respect of the property as described in the original schedule of the Plot No. 204 of Holding No. 36 having no resemblance with the suit property of Holding Nos. 35 and 38. Even the said injunction order was not communicated to any of the defendants of said Title Suit No. 51 of 1987, it was only published by way of a notice in a local newspaper of Krishnagar, namely Bidyut Patrika on December 17, 1993 (Ext.-“L”) which had no circulation in the district of Purulia, where the defendants in the said suit admittedly resided. 12. The learned trial Judge further held that in order to attract the provisions of Section 52 of the Transfer of Property Act, not only the right to immovable property must be directly and specifically in question in two suits, the property involved in both the previous and the subsequent suit must also be the same, but in the instant case, the suit property involved in the said Title Suit No. 51 of 1987 comprised in Holding No. 36 whereas the suit properties in the present suit comprise in Holding Nos. 35 and 36 and in the absence of identity of the properties involved in both the suits, doctrine of lis pendens has no application in the present suit. 13. After considering all the evidence adduced by the plaintiffs and defendant respectively, the learned trial Judge held that the said decree dated February 23, 1995 passed by the Court in the said Title Suit No. 51 of 1987, the writ delivery of possession issued by the executing Court and conveyance dated February 19, 1996 and vitiated by fraud practised by Tara Prasad on the Court. According to the learned trial Judge since the decree passed in the said Title Suit No. 51 of 1987 is vitiated by fraud, the doctrine of lis pendens does not apply in the present case. 14. After considering the documentary evidence adduced by the parties, the learned trial Judge found that, that the plaintiffs duly sent the letters of attornment to the tenants of the shop rooms at the suit property, by registered post with acknowledgment due, which the tenants refused to accept, (Ext.-“10 series”) the names of the plaintiffs have been mutated in the records of the concerned municipality in respect of the suit property (Ext-“8 series”), they are paying the government rent and municipal tax in respect of the suit property (Ext-“6 series and Ext-“7 series” respectively) since prior to the filing of the present suit, whereas Tara Prasad paid government rent and municipal tax in respect of the suit property on April 11, 2001, August 25, 2005 and May 04, 1998, (Exts-“H” and “H-1”) all during the pendency of the present suit. Although in his written statement, Tara Prasad claimed to have applied for mutation of his name, in respect of the suit property, in the records of the municipality but, there was total absence of any cogent evidence, particularly documentary evidence to prove such allegation. The learned trial Judge further found that by the said writ of delivery of possession only symbolical possession or paper possession was meant to be given to Tara Prasad, as the shop rooms in the suit property were under the possession of the tenants, while the rest portion was/is a vacant land and the said writ did not affect the interest or possession of the plaintiffs in respect of the suit property, which they obtained on the strength of the sale deeds dated May 10, 1990 and November 14, 1990 executed by Jyotirmoyee, since deceased and Madan Mohan Ghosh respectively. With regard to the contention of Tara Prasad that in execution of the decree passed by the Court in Title Suit No. 51 of 1987 he obtained possession of the suit property in the present suit and after issuance of letters of attornment, he collected rent from the tenants of the shop rooms at the suit property against valid rent receipts, the learned trial Judge also considered the evidence of DW-2, DW-3 and DW-4 who claimed to be tenants of the shop rooms. Neither Tara Prasad nor anyone of the DW-2 or DW-3 or DW-4 could produce any alleged letter of attornment or rent receipt issued by the Tara Prasad to any them. Even, the DW-2 or DW-3 or DW-4 could not mention the Holding Number of property at which their alleged shop rooms are located. Considering all above evidence of the plaintiffs and Tara Prasad respectively, the learned trial Judge found the plaintiffs to be in possession of the suit property and held that the present suit is not barred by the Proviso to Section 34 of the Specific Relief Act. 15. With the above findings, the learned trial Judge decided all the aforementioned issues of the present suit, in favour of the plaintiffs and passed a decree of declaration to the effect that the decree passed in Title Suit No. 51 of 1987 dated February 23, 1995, on the basis of which the ‘Ga’ schedule sale deed got executed and registered in favour of Tara Prasad, by the Court in respect of ‘Ka’ schedule suit property, is null and void and not binding upon the plaintiffs on the score that the same is vitiated by fraud and misrepresentation practised upon the Court and that the ‘Ga’ schedule Kobala dated 19th February, 1996 is void, fraudulent and ineffective and not binding upon the plaintiffs. The learned trial Judge further passed a decree of declaration in favour of the plaintiffs of their exclusive title in respect of ‘Ka’ schedule property with the decree of confirmation of possession in respect of the same. 16. Tara Prasad carried the above judgment and decree passed by the learned trial Judge, in appeal being Title Appeal No. 59 of 2006, before the learned Additional District Judge, 4th Court, Nadia. 16. Tara Prasad carried the above judgment and decree passed by the learned trial Judge, in appeal being Title Appeal No. 59 of 2006, before the learned Additional District Judge, 4th Court, Nadia. During pendency of the appeal, Tara Prasad died and he was substituted by his heirs and legal representatives, being the appellants in the present second appeal. In the said appeal, Tara Prasad and after his death, the present appellants challenged the judgment and decree passed by the learned trial Judge, on the grounds that the suit is barred by the doctrine of lis pendens under Section 52 of the Transfer of Property Act as also by the Proviso to Section 34 of the Specific Relief Act. After considering all the facts of the case and appreciating the material evidence adduced by the parties before the learned trial Judge, by the judgment dated July 09, 2010 the learned first appellate Court affirmed the judgment and decree passed by the learned trial Judge and rejected the appeal filed by the appellants. While dismissing the appeal the learned first appellate Court held that after scanning the evidence, the learned trial Judge rightly held that the doctrine of lis pendens under Section 52 of the transfer of Property Act has got no application in the facts and circumstances of the case and the suit is also not barred under Section 34 of the Specific Relief Act. The learned first appellate Court further held that the learned Court below discussed all the points in detail as argued by the learned lawyer for the appellants and the conclusion arrived at by the learned Court below was quite justified and nothing could be found from the judgment passed by the learned Court below to disagree. 17. As recorded above, it is the above judgment and decree passed by the learned first appellate Court which is the subject matter of challenge in this second appeal. On January 21, 2011, the Division Bench of this Court directed that this appeal will be heard on the following substantial question of law: “Whether the learned judges in the courts below substantially erred in law in decreeing the suit without considering the effect of the ex parte decree passed in Title Suit No. 51 of 1987 purportedly obtained against the heirs of Sudhir Kumar Ganguly?” 18. Mr. Mr. Dilip Banerjee, the learned Senior Advocate appearing for the appellants contended that both the learned Courts below committed an error of law in not dismissing the said Title Suit No. 51 of 1987; firstly, on the ground that the same is barred by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 and secondly, the suit is also barred in view of the Proviso to Section 34 of the Specific Relief Act, 1963 as the plaintiffs have prayed for decree for declaration of the title in respect of their suit property, without any prayer for consequential relief for a decree for recovery of possession of the suit property. 19. In support of his first contention, Mr. Banerjee submitted that admittedly by the sale deeds dated May 11, 1990 (Ext. “3” series) and the sale deed dated November 14, 1990 (Ext. 4), the plaintiffs purchased the suit properties during pendency of the said Title Suit No. 51 of 1987 and during the subsistence of the interim order of injunction passed in the said Title Suit No. 51 of 1987 and, therefore, the present suit filed by the plaintiff is hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. In support of such contention, Mr. Banerjee relied upon the decision of the Supreme Court in the case of Usha Sinha Vs. Dina Ram and Ors. reported in (2008)7 SCC 144 , where it was held that the doctrine of lis pendens is based on the principle that the person purchasing the property from the judgment-debtor during the pendency of the suit is presumed to be aware of the proceedings before a court of law and he has no independent right to the property to resist or obstruct or object execution of a decree or to maintain an application under Order XXI Rule 102 of the Code of Civil Procedure, 1908, hereafter called as “the Code”. He further contended that although Section 19(b) of the Specific Relief Act, 1963 provides that a decree for specific performance against subsequent purchaser for bona fide, who has paid the money in good faith without notice of the original contract can be enforced as the same is binding on the vendor as well as against the whole world, but when the subsequent purchaser acquires the property during pendency of a suit between the original owner and a third party in respect of the self-same property, the doctrine of lis pendens shall prevail over Section 19 of the Specific Relief Act and render the suit filed by the subsequent purchaser barred by law. In support of such contention, he relied on the decision of the Supreme Court in the case of Guruswamy Nadar Vs. P. Lakshmi Ammal and Ors. reported in (2008) 5 SCC 796 . Referring to the plaint filed in Title Suit No. 51 of 1987 (Ext.-“20”), Mr. Banerjee submitted that as per the requirement of Order VII Rule 3 of the Code of Civil Procedure, in the original schedule of the plaint Plot No. 204 C.S. and R.S. Khatian No. 833, being Holding No. 36 was mentioned and as such there was no defect in description of the suit property. He further contended that even if it is held that prior to the amendment of the original plaint filed in Title Suit No. 51 of 1987 on September 08, 1994 there was some defect in the schedule of the plaint in describing the suit properties but in the present case, since the plaintiffs in the present suit had knowledge of the pendency of the said Title Suit No. 51 of 1987 as also the actual correct description of the suit property, the doctrine of lis pendens will apply and as such the plaintiffs’ present suit is not maintainable. In support of such contention, Mr. Banerjee relied on the Division Bench decision of this Court in the case of Bipin Krishna Ray and Ors. Vs. Jageshwar Ray and Ors. reported in AIR 1921 Cal 730. 20. He further cited the decision of the Supreme Court in the case of Kedarnath Lal Vs. Sheonarain and Ors. In support of such contention, Mr. Banerjee relied on the Division Bench decision of this Court in the case of Bipin Krishna Ray and Ors. Vs. Jageshwar Ray and Ors. reported in AIR 1921 Cal 730. 20. He further cited the decision of the Supreme Court in the case of Kedarnath Lal Vs. Sheonarain and Ors. reported in AIR 1970 SC 1717 , where it was held that if the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of an acquisition and this result is not avoided by reason of the earlier attachment. Mr. Banerjee next cited the decision of the Supreme Court in the case of Nagubai Ammal and Ors. Vs. B. Shama Rao and Ors. reported in AIR 1956 SC 593 . In the said decision, the Supreme Court held that where a suit is filed for maintenance and there is a prayer that it be charged on the specified immovable propertty, it is a suit in which right to immovable property is directly in question and the lis commences on the date of the plaint and not on the date of the decree, which creates the charge over the property. 21. In support of his second ground of challenge that the present suit is barred by the Proviso of Section 34 of the Specific Relief Act, 1963 as the plaintiffs have not claimed any consequential relief for a decree for recovery of possession from Tara Prasad, Mr. Banerjee relied on the decision of Division Bench of the Lahore High Court in the case of Kamar-Ud-Din and Ors Vs. Sham Das reported in 103 IC 29. In the said decision, the Division Bench of the Lahore High Court held that a suit for mere declaration that an ex-parte decree obtained by the defendant against the plaintiff is not binding on the plaintiff as having been vitiated by fraud does not lie and where the defendant in execution of such decree has, before the filing of the suit, obtained possession of the land subject-matter of the ex-parte decree, in such a case the proper suit is one for possession of the land. 22. According to Mr. 22. According to Mr. Banerjee, from the writ of delivery of possession issued by the executing Court in the said Title Suit No. 51 of 1987, it is evident that before the learned trial Judge that in execution of the decree passed in the said suit, Tara Prasad obtained possession of the suit property and even if it is accepted for the sake of argument that such possession was constructive possession, as the shop rooms of the suit property already rented out, but the vacant land of the suit property was in control of Tara Prasad and as such both the learned Courts below committed an error of law in not dismissing the suit on the ground of being barred by the Proviso to Section 34 of the Specific Relief Act. In support of his contention that on the strength of the writ of delivery of possession, Tara Prasad, as plaintiff in the said Title Suit No. 51 of 1987 obtained possession of the suit property in execution of the decree passed in the said earlier suit Mr. Banerjee relied on paragraph 23 of the decision of the Supreme Court in the case of Ashan Devi Vs. Phulwasi Devi reported in AIR 2004 SC 511 where it was held as follows: “Salmond on jurisprudence explains that the word “possession” is a word of open texture. Its legal meaning has to be ascertained from the context. The property involved in the present case is open vacant land. Such property is possessed by a person who has control over the same. This control over the property means power to exclude all others. The test then for determining whether a man is in possession of anything is whether he is in general control of it- may be that he is not in actual and physical possession or using the same.” 23. Lastly, relying on the decisions of the Supreme Court in the case of Ram Kristo Mandal Vs. Dhankisto Mandal reported in AIR 1969 SC 204 and Achintya Kumar Saha Vs. M/s. Nanee Printers & Ors reported in AIR 2004 SC 1591 , Mr. Banerjee urged a new ground to assail the judgments and decrees of both the learned Courts below. Lastly, relying on the decisions of the Supreme Court in the case of Ram Kristo Mandal Vs. Dhankisto Mandal reported in AIR 1969 SC 204 and Achintya Kumar Saha Vs. M/s. Nanee Printers & Ors reported in AIR 2004 SC 1591 , Mr. Banerjee urged a new ground to assail the judgments and decrees of both the learned Courts below. He, on behalf of the appellants, for the first time contended that both the learned Courts below erred in law in not dismissing the suit filed by the plaintiffs on the ground that although in prayer (e) of the plaint plaintiffs have claimed that a note of decree of declaration that the sale deed executed by the Court in title Suit No. 51 of 1987 as fraudulent, null and void be sent to the concerned sub-Registrar but the plaintiffs , without paying ad-valorem Court fees under West Bengal of the Court-Fees Act, 1971, have paid only fixed court fees. In support of such contention, Mr. Banerjee cited the decisions of the Supreme Court in the cases of Shamsher Singh Vs. Rajinder Prashad & Ors. reported in AIR 1973 SC 2384 and the Division Bench decision of the Madhya Pradesh High Court in the case of Shyamacharan Paul & Anr. Vs. M/s. Roopali Promoters and Construction reported in AIR 2009 MP 117 . 24. However, Mr. Rajdeep Bhattacharyya, the learned Advocate appearing for the respondents plaintiffs strenuously contended that this second appeal preferred by the appellants is liable to be rejected. He first contended that the third ground urged on behalf of the appellants to assail the judgments of the learned Courts below on the ground of non-payment of ad-valorem Court-fees cannot be entertained by this Court, as no substantial question of law was urged by the appellants either at the time of admission of the second appeal and even at the time of commencement of hearing of the appeal no substantial question of law has been framed by this Court in that regard, as mandatorily required under Section 100 of the Code of Civil Procedure. Mr. Mr. Bhattacharyya next contended that in the present case, after appreciating the material evidence adduced by the plaintiffs and the defendant in the present suit both the learned Courts below have held that the ex parte decree dated February 23, 1995 passed in the Title Suit No. 51 of 1987, the writ of delivery of possession in Title Execution Case No. 1 of 1995 as also the registered deed of sale dated February 19, 1996 executed by the learned First Civil Judge (Senior Division), Nadia, Krishnagar were all obtained by Tara Prasad by practising fraud and misrepresentation upon the Court and that Tara Prasad did not obtain possession of the suit property and therefore, the present suit filed by the plaintiffs is not barred either by the doctrine of lis pendens or by the Proviso to Section 34 of the Specific Relief Act. He strenuously urged that the appellants in the second appeal, being the legal representatives of the deceased Tara Prasad have not been able to substantiate any perversity in any of the above findings of fact arrived by the learned Courts below that the said decree passed in the said Title Suit No. 51 of 1987 was vitiated by fraud practised on the Court and that the plaintiffs are in possession of the suit property. Relying on the decisions of the Supreme Court in the cases of S.P. Chengalvaraya Naidu Vs. Jagganath reported in (1994) 1 SCC 1 and in the case of Indian Bank Vs. Satyam Fibres (I) Pvt. Ltd. reported in (1996) 5 SCC 550 , Mr. Bhattacharyya contended that a judgment or decree obtained by practising fraud on the Court is a nullity and nonest in the eye of law. According to him, when a decree obtained by practising fraud on the Court is a nullity and nonest in the eye of law, a suit filed claiming a declaration that the said decree is fraudulent and void or for cancellation of such decree cannot be hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. According to Mr. Bhattacharyya, in any event in the present case when in the year 1990, the plaintiffs purchased the various portions of the suit property from Jyotirmoyee and Madan Mohan Ghosh by Exts. “3”, “3/1” and “4”, respectively at Holding Nos. According to Mr. Bhattacharyya, in any event in the present case when in the year 1990, the plaintiffs purchased the various portions of the suit property from Jyotirmoyee and Madan Mohan Ghosh by Exts. “3”, “3/1” and “4”, respectively at Holding Nos. 35 and 38, whereas the suit property described in the schedule of the plaint filed in the said Title Suit No. 51 of 1987 was the property at Holding No. 36 and as such there is no identity of the properties involved in the present suit and in the said Title Suit No. 51 of 1987. Thus, according to him decisions of both the learned Courts below that the present suit is not barred by the doctrine of lis pendens suffers from no legal infirmity which can be interfered by this Court in second appeal. 25. Relying on the decision the learned Single Judge of the Karnataka High Court in the case of B.V. Vasantha Vs. Sha Poonamchand and Ors. reported in AIR 1997 Kant 306, Mr. Bhattacharyya submitted that at the highest, the amendment of the schedule of the plaint in the said Title Suit No. 51 of 1987 had no retrospective effect and as such the doctrine of lis pendens has no application in the instant case. 26. I have considered all the material records of this case as also the submissions made by the learned Advocates appearing for the respective parties. 27. From a bare reading of a substantial question of law framed by the Division Bench of this Court at the time of admission of the second appeal, as recorded above it is clear that the same relates to the effect of the said ex parte decree passed in the said Title Suit No. 51 of 1987. From the decree dated February 23, 1995 passed in the said Title Suit No. 51 of 1987 (Ext.-“13”), it is evident that by the said decree defendant nos. 1 to 8 of the said suit were directed to execute a deed of sale in respect of the suit property of the said suit in favour of Tara Prasad and the refusal on the part of said defendants shall entitle Tara Prasad to have the said sale deed executed through Court. The said decree did not contain any direction against the said defendant nos. The said decree did not contain any direction against the said defendant nos. 1 to 8 of the said Title Suit No. 51 of 1987 to make over possession of the suit property to Tara Prasad in the said suit. 28. So far as the contention strenuously urged on behalf of the appellants, being heirs and legal representatives of Tara Prasad, that in view of the decree dated February 23, 1995 passed by the learned Assistant District Judge, 1st Court, Krishnagar in the said Title Suit No. 51 of 1987, the learned Courts below committed an error of law in not dismissing the present suit filed by the plaintiff on the ground of being hit by the doctrine of lis pendens, I find no merit in the said contention for the following reasons. 29. Firstly, it is settled law that in order to hold a subsequent suit to be barred by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 not only a right to an immovable property must be directly and substantially in issue, in both the previous and the subsequent suit, but the property involved in both the suits must also be same. In the present case, after considering the plaint filed in the said Title Suit No. 51 of 1987 (Ext-“20”) it is beyond doubt that the suit property in the original plaint filed in the said suit was Plot No. 204, under Khatian No. 833, of Holding No. 36 and even after amendment, the schedule of the said plaint included Plot Nos. 205, 206 and 207 of Holding No. 36. The ex-parte decree dated February 23, 1995 passed in the said Title Suit No. 51 of 1987 (Ext.-“13”) and the registered sale deed executed on February 19, 1996 by the Court in favour Tara Prasad, as the plaintiff decree holder in the said Title Suit No. 51 of 1987 were all in respect of Plot Nos. 204, 205, 206 and 207 of Holding No. 36, whereas the property involved in the present suit are Plot Nos. 204, 205, 206 and 207 under Khatian No. 833 comprised in Holding Nos. 35 and 38. Tara Prasad adduced evidence through his son DW-1. 204, 205, 206 and 207 of Holding No. 36, whereas the property involved in the present suit are Plot Nos. 204, 205, 206 and 207 under Khatian No. 833 comprised in Holding Nos. 35 and 38. Tara Prasad adduced evidence through his son DW-1. While going through the evidence of DW-1 it appears that in cross-examination he admitted the 21 decimal of land in Plot No. 204 which was purchased by his father from Nibaran and Prabodh are comprised in Municipal Holding Nos. 36 and 37. He further admitted that 5 decimal of land in Plot No. 204 and 2 decimal of land in each of Plot Nos. 205, 206 and 207, being the suit property in present suit are comprised in Municipal Holding Nos. 35 and 38. From these admissions of DW-1, on behalf of Tara Prasad, there cannot be any doubt that the properties involved in the said Title Suit No. 51 of 1987 and the properties involved in the present suit are different properties. 30. For all these reasons, the findings of the learned trial Judge, upheld by the learned first appellate Court that the suit properties involved in the two suits are not same and, therefore, the doctrine of lis pendens does not apply in this case, cannot be held to be vitiated by any perversity or error of law. 31. The learned Senior Advocate appearing for the appellants in his arguments in this appeal, did not dispute that in this case the identity of the suit properties involved in both the suits are not same. However, relying on the decision of the Division Bench of this Court in the case of Bepin Krishna Ray(supra) he contented that misdescription of property involved in a litigation is sufficient to render the doctrine of lis pendens inapplicable, cannot be invoked by a person who has either knowledge or notice of the true state of things. I am unable to find any merit in the said submission on behalf of the appellants. From the evidence adduced by the plaintiffs and Tara Prasad in the present suit which have already been appreciated by both the learned Courts below, the appellants could not impute any knowledge of the plaintiffs respondents of the filing or pendency of the said Title Suit No. 51 of 1987. From the evidence adduced by the plaintiffs and Tara Prasad in the present suit which have already been appreciated by both the learned Courts below, the appellants could not impute any knowledge of the plaintiffs respondents of the filing or pendency of the said Title Suit No. 51 of 1987. Thus, the said decision of the Division Bench of this Court in the case of Bepin Krishna Ray (supra) has no application in this case. In any event, in the description of suit properties in the said Title Suit No. 51 of 1987 cannot be held to be a mere misdescription. 32. Secondly, after appreciating the material evidence adduced by the plaintiffs and Tara Prasad, in the present suit already discussed above, both the learned Courts below have held that Tara Prasad, obtained the ex parte decree dated February 23, 1995 being passed in the said Title Suit No. 51 of 1987, the writ of delivery of possession and the registered deed of conveyance dated February 19, 1996 in respect of the suit property of the said suit by practising fraud and misrepresentation on the learned Court of the First Court of Civil Judge, (Senior Division), Nadia , Krishnagar. Further, Tara Prasad himself relied on the sale deeds both dated April 12, 1980 executed by Nibaran and the legal representatives of Prabodh (Exts.-“I” and “J”) transferring their respective one-third share of the original property to him. In the schedule of both the said sale deeds it was expressly mentioned that Jyotirmoyee Devi was the owner of their respective adjoining properties, being a portion of the original property. Thus, Tara Prasad was aware of the ownership of Jyotirmoyee Devi in respect of the remaining one-third share of the original property. Thus, there was no scope for himself to enter into an agreement with the heirs and legal representatives of Sudhir for obtaining transfer of the said remaining one-third share of the original property, as alleged by him in the plaint filed in the said Title Suit No. 51 of 1987 . Moreover, admittedly the one-third share of the original property, owned by Jyotirmoyee Devi having 5 decimal of land in Plot No. 204 and 2 decimal of land in each of Plot Nos. 205, 206 and 207 comprise in Municipal Holding Nos 35 and 38. Moreover, admittedly the one-third share of the original property, owned by Jyotirmoyee Devi having 5 decimal of land in Plot No. 204 and 2 decimal of land in each of Plot Nos. 205, 206 and 207 comprise in Municipal Holding Nos 35 and 38. Thus, Tara Prasad had no bona fide reason to file the said Title Suit No. 51 of 1987 claiming specific performance of the alleged agreement against the heirs and legal representatives of Sudhir, in respect of the property having 5 decimal in Plot No. 204 and 2 decimal each in Plot Nos. 205, 206 and 207 of Municipal Holding No. 36, which never belonged to Sudhir or Jyotirmoyee Devi. 33. The learned counsel appearing for the appellants in his long argument in the appeal, neither contended nor could point out that the detailed analysis of evidence of the parties to the suit based on which both the learned Courts below grounded their findings in respect of all issues against Tara Prasad, suffers from any perversity. It is well-settled principle of law that the High Court hearing a second appeal under Section 100 of the Code cannot interfere with the findings of fact by the trial Court and upheld by the first appellate court unless the same is vitiated by perversity. An authority for this view can be found in the decision of the Supreme Court in the Cases of Azrath Bivi and Anr. Vs. Chinnathambi reported in (2013) 14 SCC 608. Further, as has been rightly contended on behalf of the plaintiffs- respondents, by citing the decision of the Supreme Court in the Case of S.P. Chengalvaraya Naidu (supra) that it is settled principle of law that a judgment or decree obtained by practising fraud on the Court is a nullity and the same is nonest in the eye of law and such a judgment or decree has to be treated as a nullity by every Court. In this connection, a reference may profitably be made to the decision of the Supreme Court in the case of Ram Chandra Singh v. Savitri Devi reported in (2003) 8 SCC 319 (para 33) where the Supreme Court laid down the law that once it is held that a judgment and decree has been obtained by practising fraud on the Court, it is trite that the principle of res judicata shall not apply. Even in paragraph 18 of the decision in the case of Kedarnath Lal (supra) cited by the appellants, the Supreme Court relied on the decision of the Privy Council in the case of Gauri Dutt Maharaj v. Sukur Mohammed reported in 1948 PC 147 (para-7) and held that in order to apply the doctrine of lis pendens in a subsequent suit, the earlier proceeding or suit must be bona fide. In the instant case, it is evident that Tara Prasad filed the said Title Suit No. 51 of 1987 with the knowledge that the defendants therein were not the owners of the suit property involved in said suit and also obtained an ex-parte decree for specific performance in respect of the property not belonging to any the said defendants. On this ground, even the interim order injunction obtained by Tara Prasad in the said Title Suit No. 51 of 1987 against the defendant no. 2, Pranab had no bearing in suit property of the present suit. 34. For all these reasons, I find no reason to interfere with the findings of both the learned Courts below that the ex parte decree passed by Title Suit No. 51 of 1987 and the registered deed of sale dated February 19, 1996 in respect of the suit property standing in the name of Tara Prasad and the writ of delivery of possession in the Title Execution Case No. 1 of 1995 were obtained by Tara Prasad by practising fraud and mis-representation upon the Court and the present suit filed by the plaintiffs is not hit by the doctrine of lis pendens. Thus, the decisions of the Supreme Court in the case of Usha Sinha (supra), Guruswamy Nadar (supra) and Nagubai Ammal (supra) cited by the appellants with regard to the principle of lis pendens have no application in this case. 35. The second ground urged by the appellants in this appeal to challenge the judgment and decree passed by both learned Courts below, was that both learned Courts committed an error of law by not dismissing the suit of the respondents-plaintiffs on the ground of being barred by proviso to Section 34 of the Specific Relief Act. 36. 35. The second ground urged by the appellants in this appeal to challenge the judgment and decree passed by both learned Courts below, was that both learned Courts committed an error of law by not dismissing the suit of the respondents-plaintiffs on the ground of being barred by proviso to Section 34 of the Specific Relief Act. 36. According to the appellants, in execution of the decree dated February 23, 1995 passed in the said Title Suit No. 51 of 1987, Tara Prasad obtained possession of the suit property and inasmuch as the respondents-plaintiffs in the present suit have claimed decree for declaration of their title in respect of the suit property without claiming any decree for consequential relief for recovery of possession of the suit property, the suit is barred by the Proviso to Section 34 of the Specific Relief Act. In this connection, it may be pointed out that from a bare reading of the plaint filed in the said Title Suit No. 51 of 1987 (Ext.-“20”), it is clear that in the said plaint it was the specific case of Tara Prasad that before entering into the alleged oral agreement with the heirs of the said Sudhir, he was in possession of the suit property of the said suit and he did not claim any decree for delivery of possession of the suit property. Even from the decree dated February 23, 1995 passed in the said Title Suit No. 51 of 1987, (Ext- “13”) it is also evident that the same contained no direction against the defendants in the said suit to make over possession of the suit property of the said suit to Tara Prasad. Thus, there was no scope for the executing Court to issue any writ of delivery of possession of the suit property involved in the said Title Suit No. 51 of 1987. Thus, there was no scope for the executing Court to issue any writ of delivery of possession of the suit property involved in the said Title Suit No. 51 of 1987. Although the said writ of delivery of possession in the executing proceeding of the suit Title Suit No. 51 of 1987 was not proved or exhibited in the suit, the same do not from part of the lower Courts’ record of this appeal and this Court could not look into the said writ, but one thing is certain that by virtue of any order passed in the executing proceeding in the said Title Suit No. 51 of 1987 Tara Prasad could not obtain possession of the suit property of the present suit which is a different property. 37. Thus, once again I am unable to find any perversity in the finding of the learned trial Judge, which was also upheld by the learned first appellate Court that the plaintiffs are in possession of the suit property of the present suit and consequently the suit is not barred by the Proviso to Section 34 of the Specific Relief Act. In these circumstances, the Division Bench decision of the Lahore High Court in the case of Kamar-Ud-Din (supra) and the decision of the Supreme Court in the case of Ashan Devi (supra) relied by the appellants have no application in this case 38. Finally, in the present case, I am unable to entertain the third contention raised on behalf of the appellants that both the learned Courts below committed an error of law by not dismissing the suit filed by the plaintiffs respondents for non-payment of ad valorem Court fees. The appellants did not invite this Court to frame any substantial question of law with regard to their said third contention, either at the time of admission of the second appeal or at the time of commencement of the hearing of the appeal. It is settled law that in view of the amendment of Section 100 of the Code which has come into force with effect from February 01, 1977, the High Court in a second appeal cannot decide a question which is not framed as substantial question of law. It is settled law that in view of the amendment of Section 100 of the Code which has come into force with effect from February 01, 1977, the High Court in a second appeal cannot decide a question which is not framed as substantial question of law. In the case of Achintya Kumar Saha (supra) cited on behalf of the appellants, the Supreme Court found that in the second appeal before the High Court the appellant had urged an issue of law which was a core issue going to the root of the matter, was raised both before the trial Court as also before the learned first appellate Court, but as the same was not adjudicated upon by the learned Courts below, the same resulted in a substantial question of law under Section 100 of the Code. Even in the case of Ram Kristo (supra) relied by the appellants, the Patna High Court while deciding a second appeal under Section 100 of the Code, refused to entertain a contention of the appellant on the ground that the same was raised for the first time in the second appeal. The Supreme Court, however, found that the High Court was not correct in its view that the said contention of law was raised for the first time in the course of arguments before it, as it was clear from the judgment of the District Judge that the same contention of law was, in fact, canvassed before it. On this ground the Supreme Court set aside the decision of the High Court. However, in the instant case, no issue was framed at the trial of the suit, with regard to insufficient Court fees being paid by the plaintiffs on the ground now urged before this Court, in his judgment the learned trial Judge held that the Court fees paid in the present suit is correct and sufficient and neither in the memorandum appeal filed before the learned first appellate Court nor in the memorandum appeal filed in this second appeal, the appellants raised any contention that the suit is liable to be dismissed on the ground of non-payment of ad valorem Court fees by the plaintiffs. Thus, none of the said decisions of the Supreme Court in the case of Achintya Kumar Saha (supra) or in the case of Ram Krishto (supra) has any application in the instant case. Thus, none of the said decisions of the Supreme Court in the case of Achintya Kumar Saha (supra) or in the case of Ram Krishto (supra) has any application in the instant case. In the instant case, I am unable to convince myself to hold that is third contention raised by the appellants to be a core issue going to the root of the matter. Thus, I refrain from dealing with the ratio of the decisions of the Supreme Court and the Division Bench of the Madhya Pradesh High Court in cases of Shamsher Singh (supra) and Shyamacharan Paul (supra), respectively cited by the appellants. 39. In view of the findings of both the learned Courts below that the present suit is not barred by the doctrine of lis pendens, as the properties involved in the said Title Suit No. 51 of 1987 and the present suit are not same and that the decree passed in the said title Suit No. 51 of 1987 is vitiated by fraud practised upon the Court, which cannot be interfered by this Court , I find no merit in the contention advanced on behalf of the respondents, on the strength of the decision of the Karnataka High Court in the case of B.V. Santha (supra), that at the highest amendment of the schedule of the plaint filed in the said Title Suit No. 51 of 1987 had no retrospective effect. 40. For all the foregoing reasons, I find no merit in this appeal. Accordingly, the appeal being S.A. No. 19 of 2011 stands rejected and the judgment and decree dated July 09, 2010 and July 15, 2010, respectively passed by the learned Additional District Judge, Fourth Court, Nadia, in Title Appeal No. 59 of 2006 are affirmed. 41. However, there shall be no order as to costs. 42. Let, the lower Courts’ records be forthwith sent down. Urgent certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.