Hon’ble A.P. Sahi, J.—Heard Sri Ramesh Chandra, learned counsel for the appellant and Sri S.D. Shukla for the respondent.

The appellant was the defendant in the suit. The suit was filed by Mst. Rajpali praying for cancellation of the sale-deed in respect of the property in question on the ground that the sale-deed had been got executed fraudulently and by misleading the plaintiff after taking her to the Sub Registrar Office at Tehsil Harraiya, District Basti on the pretext on the payment of some compensation. The suit was dismissed by the trial Court holding that the sale-deed had been proved by the production of the marginal witness and had been executed for consideration. It is to be noted that the suit proceeded in the absence of original plaintiff Mst. Rajpali as she had died before the evidence was taken in the suit and she had not entered the witness box.

2. The respondents herein are the substituted heirs of Rajpali claiming themselves to be the natural heirs and they deposed before the Court below supporting the plaint allegation. The respondents further relied on the statement given by Rajpali in the mutation proceedings that were initiated for carrying out mutation over the land in dispute. They also urged that the consideration never passed on and in such circumstances, the sale-deed deserved to be cancelled.

3. After the dismissal of the suit, the respondents went in appeal and the Court below reversed the judgment of the trial Court on the ground that the consideration of Rs. 500/- which did not even pass on in front of the Sub Registrar at the time of execution of the sale-deed, was inadequate and therefore, the sale-deed was void. The lower appellate Court further concluded that the allegation of the payment of the consideration was before one Ram Murat who was never produced by the defendants and, as such, the passing on of consideration was not proved at all. The lower appellate Court further went on to hold that the defendants failed to produce any receipt of the amount that they had paid for the transaction and that the statement, made by Mst. Rajpali during the mutation proceedings, clearly indicates that she had not executed the sale-deed which evidence was sufficient to decree the suit.

4. Aggrieved the defendants have come up in this second appeal and the matter was heard by this Court on 1.11.2012. After hearing, the Court found that the appeal deserves to be decided on the substantial questions of law that arose and have been recorded in the aforesaid order.

Sri Ramesh Chandra, learned counsel for the appellant contends that the lower appellate Court without reversing the finding on the issue of possession, without recording any finding with regard to production of marginal witness and proving of the sale-deed in terms of the Section 68 of the Indian Evidence Act, has reversed the order of the trial Court on the issue of inadequacy of consideration which was neither pleaded nor proved by the plaintiff. He submits that the sale-deed had been executed and was proved and non production of Ram Murat as a witness, was irrelevant. He submits that the lower Court carved out a new case of inadequacy of the consideration when the case of the plaintiff was that no consideration had passed on at all. He therefore, contends that the appellate Court proceeded on a probability that since the defendants have failed to produce any receipt of the consideration, therefore, no consideration has passed on and was inadequate. Sri Chandra further submits that this part of the finding is based on conjectures and surmises and therefore, impugned judgment is vitiated. In the mutation case, Sri Chandra contends that even though Rajpali has given a statement but the mutation case had been ultimately decided in favour of the defendants/appellant and therefore, the lower appellate Court committed a manifest error by relying on such a statement recorded during the summary proceedings of mutation.

5. Sri Shukla learned couns