Hon’ble Sudhir Agarwal, J.—Heard Sri Anil Sharma, Advocate, for appellant and Sri S.N. Tripathi, Advocate, for respondents.

2. This is defendant’s appeal under Section 100 C.P.C. which has arisen from judgment and decree dated 11.7.2012 passed by Sri Razi Ahmad, Additional District Judge, Court No. 2, Bijnor allowing plaintiff’s Civil Appeal No. 51 of 2009 and setting aside judgment and decree dated 3.10.2009 passed by Smt. Adesh Nain, Judge, Small Causes Court, Bijnor whereby she has dismissed the Original Suit No. 26 of 1998 but Lower Appellate Court (hereinafter referred to as “LAC”) has decreed the suit by setting aside decree of Trial Court (hereinafter referred to as “TC”).

3. This Court formulated following three substantial questions of law on 7.8.2012 after hearing the appeal under Order 41 Rule 11 C.P.C.:

(i) Whether the suit filed by the plaintiff-respondent was barred by Section 49 of U.P. Consolidation Holdings Act, 1953 (hereinafter referred to as “Act, 1953”)?

(ii) Whether the suit filed in the year 1998 for cancellation of the sale-deed executed in the year 1987 was barred by limitation in view of Article 59 of the Limitation Act?

(iii) Whether the claim of the plaintiff-respondent that the property which was the subject-matter of the impugned sale-deed was ancestral could be accepted in the face of the admitted factual position that no such claim was raised by him before the consolidation authorities?

4. The dispute relates to agricultural land forming plot of Khasra No. 2658, area 3 bigha 14 biswa, situate at Village Sheralipur, Pergana Syohara, District Bijnor. A sale-deed dated 18.2.1987 was executed by Sri Ranveer Singh, son of Sri Keval Singh in respect to the aforesaid property in favour of Nagendra Pal Singh, son of Sri Gyanendra Pal Singh (the defendant-appellant-hereinafter referred to as “appellant”) for a consideration of Rs. 13,500/- and it was duly registered. The plaintiff-respondent Sri Bhadrapal Singh, son of Sri Satpal Singh Pal Singh (hereinafter referred to as “plaintiff”) instituted Original Suit No. 26 of 1998 vide plaint dated 11.1.1998 for cancellation of aforesaid sale-deed in the Court of Civil Judge (Senior Division), Bijnor. The family genealogy has been given in para 1 of the plaint at the top whereof is Chaudhary Keval Singh, who had two sons, Digvijay Singh and Ranveer Singh. Digvijay Singh had two sons Satpal Singh and Gyanendra Singh, who in turn had two sons and three daughters and four sons and three daughters respectively. Bhadra Pal Singh is the son of Satpal Singh while Nagendra Pal Singh is son of Gyanendra Pal Singh.

5. The plaint case set up is that Khasra No. 2658 was allotted numbers 2658/1, 2658/2, 2658/3 and 2658/4 during consolidation proceedings. The plot No. 2658/3, area 7 biswa 10 biswansi came to vest in State of U.P. and therefore was already separated. Rest of the property remain with successors of Chaudhary Keval Singh. Digvijay Singh, one of the two sons of Keval Singh, had 50 per cent share in the property which was transferred by sale to Jameen Ahmad, Akhtar Husain, Shahadat Husain and Bahajuddin, all sons of Nazzu Khan who were recorded as co-tenure holders with Chaudhary Ranveer Singh. The land forming part of Khasra No. 2658/2 area 1 bight 13 biswa and 2658/4 area 10 biswansi was declared abadi and hence was excluded from consolidation proceedings on an objection raised by defendant No. 1 under Section 9 Act, 1953. Hence the sale-deed dated 18.2.1987 could not have been executed by treating the aforesaid land to be an agricultural one but to evade stamp duty etc. the land was disclosed as an agricultural land and the sale-deed was executed though, as a matter of fact, it was abadi, being used for residential and commercial purposes. Further defendant No. 2 had no right to transfer the aforesaid land on his own individually since he was not the sole owner in possession over the aforesaid property. Defendant No. 2 was only entitled to a share of 1