The main legal point established is that incorrect registration location renders a deed voidable, not void ab initio, and only a recorded tenure holder can maintain a suit for cancellation of a sale deed.

JUDGMENT :

1. Heard Sri V.K. Singh, learned counsel for the appellants, Sri N.L. Pandey, learned counsel for the respondent no. 4 and Sri Sanjeev Kumar Asthana, learned counsel for the respondent no. 3.

2. Present second appeal filed under Section 100 of CPC against the judgment and decree dated 28.02.2022 passed by the Additional District Judge, Court No. 5, Varanasi in Civil Appeal No. 311 of 1985 arising out of Original Suit No. 47 of 1979, which was partly decreed by Munsif Hawali vide judgment and decree dated 21.09.1985.

3. On 22.04.2002 this Court while admitting the present appeal framed following substantial question of law;

“(i) Whether the judgment of the court below suffers from manifest illegality and cannot be sustained, in view of the fact that court below having found that sale deed in question executed by Hari Das was on receiving consideration of Rs. 8500/-but refusing to cancel the sale deed it did not direct to refund of the sale consideration?”

4. After hearing the matter, this Court frames additional substantial question of law which is as under;

(ii) Whether the judgment of lower appellate court can be sustained, once finding was recorded that the sale deed executed was valid after payment of due consideration amount of Rs. 8500/-and without playing any fraud, then holding the sale deed to have been obtained by fraud by purchaser after execution of document in the office of Sub Registrar, Varanasi instead of Sub Registrar, Ram Nagar, District Varanasi.

5. Facts, in nutshell, are that property in dispute was recorded in the name of Hari Das, father of plaintiff respondent no. 1 Vikrama Singh (since deceased). Initially the owner of the land being plot no. 206 measuring 0.47 decimal was recorded in the name of Mukundi, who had two sons namely Barsati and Ram Karan. After the death of Barsati and Ram Karan the property being joint Hindu family property was inherited by widow of Barsati i.e. Harbansia and son of Ram Karan i.e. Hari Das. The name of Hari Das was recorded in the revenue records in the basic year. On 04.12.1978 Hari Das executed a registered sale deed in favour of defendant appellants. According to the plaintiff respondent no. 1 when he came to know about the execution of sale deed in favour of defendant appellants by his father Hari Das, he filed Original Suit N. 47 of 1979 for cancellation of the sale deed which, according to him, was executed by playing fraud upon his father Hari Das, who had not executed the sale after receiving full consideration of Rs. 8500/-.

6. The defendant appellants contested the suit and filed their written statement and stated that the plaintiff respondent no. 1 did not object to the other sale deed executed by his father Hari Das which was well within his knowledge. The trial court framed the following issues;

^^1- D;k foØ; i= fnukad 4-12-78 ufoLrk gfjnk'k cgd jekdkar vkfn okn i= dh /kkjk 11 esa of.kZr dkj.kksa ds vk/kkj ij fujLr fd;s tkus ;ksX; gSA

2- D;k okn dk ewY;akdu de fd;k x;k gS vkSj iznŸk U;k; 'kqYd vi;kZIr gS]\

3- D;k okn 34 fof'k"V vuqrks"k vf/kfu;e ls ckf/kr gS\

4- oknh D;k vU; vuqrks"k ikus dk vf/kdkjh gS\^^

7. Issue no. 1 was in regard to the fact that whether the sale deed executed on 04.12.1978 by Hari Das in favour of defendant appellants should be cancelled in view of the fact mentioned in paragraph no. 11 of the plaint. The trial court after taking note of the oral and documentary evidence adduced by the parties recorded a finding that as plaintiff respondent no. 1 was born prior to the coming of U.P.Z.A. & L.R. Act and the land in question was ancestral joint Hindu property, he had coparcenary share in the property in question and was thus entitled to half share in view of Section 171 of U.P.Z.A. & L.R. Act. The trial court on the basis of finding, while deciding issue no. 1 partly decreed the suit of the defendant respondent no. 1 and cancelled the sale deed dated 04.12.1978 to the extent that plaintiff had half share in the suit property.

8. Aggrieved b