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2019 Supreme(All) 2064
IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH
Ved Prakash Vaish, J.
Krishna Pratap – Appellant
Versus
Meenu Devi – Respondent
Second Appeal No. 236 of 2009
Decided On : 19-08-2019
Advocate Appeared:
For the Appellants : D.C. Mukerjee, Mohd. Aslam Khan, Mohiuddin Khan.
For the Respondents: R.K. Srivastava, H.B. Singh, Surya Prakash Singh.
Headnote:
Transfer of Property Act, 1882 – Section 54 –Respondent filed suit for permanent injunction and cancellation of sale-deed bearing Original Suit –Appellant No. 2, was very close of her husband – He took total sum amount from plaintiff's husband loan on different dates, he could not repay amount and, therefore, appellant No. 2 executed registered sale-deed in her favour in respect of plot – On basis of said sale-deed, plaintiff became bhoomidhar and in possession of plot – Defendant No. 2, knowingly that he had executed sale-deed in favour of plaintiff, prepared forged document/sale- deed in favour of defendant No. 1 – It was alleged that defendant No. 2 was left with no right to sell land – It was also stated that on basis of void sale-deed in favour of defendant No. 1 which was executed in collusion with defendant No. 2, defendant No. 1 tried to take forcible possession of aforesaid land and to cut crops – Hence, plaintiff file suit for injunction and cancellation of sale-deed –Suit was contested by defendants by filing written statements, defendants denied allegations made in plaint – Upon consideration of oral and documentary evidence adduced by both parties, suit was decreed by Civil Judge (Junior Division),vide judgment and decree – Against said judgment and decree, defendants/ appellants filed appeal bearing Civil Appeal, appeal was dismissed by District judge, vide impugned judgment and decree – Held, Registration of Sale deed is not argued – On basis of documentary and oral evidence, both courts below have recorded concurrent finding that sale-deed executed by appellant No. 2, in favour of appellant No. 1, is liable to be canceled –Appellants has not been able to point out any illegality or perversity in findings recorded by both courts – Appeal Dismissed. (Paras 41 to 45).
Facts of The Case:
Respondent filed suit for permanent injunction and cancellation of sale-deed bearing Original Suit –Appellant No. 2, was very close of her husband – He took total sum amount from plaintiff's husband loan on different dates, he could not repay amount and, therefore, appellant No. 2 executed registered sale-deed in her favour in respect of plot – On basis of said sale-deed, plaintiff became bhoomidhar and in possession of plot – Defendant No. 2, knowingly that he had executed sale-deed in favour of plaintiff, prepared forged document/sale- deed in favour of defendant No. 1 – It was alleged that defendant No. 2 was left with no right to sell land – It was also stated that on basis of void sale-deed in favour of defendant No. 1 which was executed in collusion with defendant No. 2, defendant No. 1 tried to take forcible possession of aforesaid land and to cut crops – Hence, plaintiff file suit for injunction and cancellation of sale-deed –Suit was contested by defendants by filing written statements, defendants denied allegations made in plaint – Upon consideration of oral and documentary evidence adduced by both parties, suit was decreed by Civil Judge (Junior Division),vide judgment and decree – Against said judgment and decree, defendants/ appellants filed appeal bearing Civil Appeal, appeal was dismissed by District judge, vide impugned judgment and decree.
Finding of The Court:
Registration of Sale deed is not argued – On basis of documentary and oral evidence, both courts below have recorded concurrent finding that sale-deed executed by appellant No. 2, in favour of appellant No. 1, is liable to be canceled –Appellants has not been able to point out any illegality or perversity in findings recorded by both courts.
Result: Appeal Dismissed.
ORDER :
1. Heard Sri. Mohd. Arif Khan, learned Senior Advocate assisted by Sri. Mohd. Aslam Khan, learned counsel for the appellants and Sri. H.B. Singh, learned counsel for the respondent.
2. The appellants/defendants have assailed the impugned judgment and decree dated 24.04.2009 passed by learned District Judge, Faizabad in Civil Appeal bearing No. 97 of 2008, whereby the appeal filed by the appellants was dismissed.
3. The respondent, Smt. Meenu Devi was plaintiff whereas the appellants, Sri Krishna Pratap and Sri Ram Kalap were defendants in the original suit.
4. Succinctly stated that the facts of the present case are that the respondent, Smt. Meenu Devi filed a suit for permanent injunction and cancellation of sale-deed dated 02.08.1999 bearing Original Suit No. 472 of 1999. The case of the respondent/plaintiff was that appellant No. 2, Sri Ram Kalap was very close of her husband; he took a total sum of Rs. 68,000/- from the plaintiff's husband as loan on different dates prior to 26.02.1999, he could not repay the said amount and, therefore, appellant No. 2 executed a registered sale-deed dated 26.02.1999 in her favour in respect of plot No. 6 admeasuring 45 feet x 30 feet, (total 1350 square feets) situated at Village Shivnathpur, Pargana Khadasa, Tehsil Bikapur, District Faizabad. On the basis of said sale-deed, the plaintiff became bhoomidhar and in possession of the said plot. Defendant No. 2, knowingly that he had executed a sale-deed dated 26.02.1999 in favour of the plaintiff, prepared a forged document/sale- deed dated 02.08.1999 in favour of defendant No. 1, Sri Krishna Pratap. It was alleged that defendant No. 2 was left with no right to sell the said land. It was also stated that on the basis of void sale-deed in favour of defendant No. 1 which was executed in collusion with defendant No. 2, defendant No. 1 tried to take forcible possession of the aforesaid land and to cut crops. Hence, the plaintiff file a suit for injunction and cancellation of sale-deed dated 02.08.1999.
5. The suit was contested by the defendants by filing written statements, the defendants denied the allegations made in the plaint.
6. In the additional statement, it is stated that in paras-2 and 3, the plaintiff has disclosed the two sale-deeds which have different boundaries and it is not clear in respect of which property, the plaintiff has filed the suit. The suit is not maintainable in view of Order VII Rule 3 of the C.P.C. It was stated that defendant No. 2 is bhoomidhar with transferable rights in respect of plot No. 6, which is situated on the western side of Faizabad Raebareli Road, different parts of the disputed plot were sold to different persons, defendant No. 2 sold part of disputed plot No. 6, admeasuring 12.50 air to defendant No. 1, defendant No. 2 had sold the northern side of the disputed plot to Sri Uma Shanker Pandey on 28.01.1994, it was alleged that part of property was sold to defendant No. 1 on 30.01.1984 for a consideration of Rs. 4,000/- and possession was delivered to him and consequently a document on stamp paper of Rs. 5/- was handed over to defendant No. 1 and defendant No. 1 is in occupation of the said land. It was also stated that defendant No. 1 had dug for constructing a room on the eastern side of the disputed land, but the construction could not be raised as defendant No. 1's wife was suffering from cancer. The disputed land is in occupation of defendant No. 1. It was also stated that at that time, all the persons were purchasing the land on a stamp paper of Rs. 5/- and no sale-deed was registered. It was also stated that the possession of the disputed land was handed over to defendant No. 1 on 30.01.1984, defendant No. 1 is in continuous occupation of the same and defendant No. 1 or any other person never interfered in possession of the plaintiff. It was also stated that the said document dated 30.01.1984 was on a stamp paper of Rs. 5/- defendant No. 2 executed a registered sale-deed dated 02.08.1999 in fa
