The courts upheld the validity of a sale deed executed by a relative, finding no proof of ownership or possession by the appellant, thus affirming the dismissal of the appeal.

JUDGMENT

Rajnish Kumar, J.

Heard, Shri P.V.Chaudhary, learned counsel for the appellant and Shri Mohiuddin Khan, learned counsel for the respondents.

2. This Second Appeal under section 100 of the Civil Procedure Code 1908 has been filed with a prayer to decree the suit of the plaintiff/appellant (here-in-after referred as appellant) for cancellation of sale deed and for declaration with cost after setting aside the judgment and decree dated 24.08.1985 and 11.10.1988 passed by the 2nd Additional Munsif, Pratapgarh and the 2nd Additional District Judge, Pratapgarh respectively.

3. The following two substantial questions of law have been formulated in this Second Appeal:-

"(i) whether the two Courts were justified in dismissing the suit of the plaintiff-appellant for cancelling of the sale deed ignoring the material evidence on record which established the title of the plaintiff and to the contrary, the respondents who are relying upon the impugned sale deed could not establish the title of their vendor?

(ii) Whether the two courts were justified in dismissing the suit by recording a finding that the property was un-identified that when the appellant moved an application for survey commission and it was pressed but erroneously rejected by the two courts which was imperative to come to a cogent finding and what would be its effect on the merits of the case?"

4. Learned counsel for the appellant submitted that the appellant is owner and in possession of the market and the land in dispute which is a part of his Khudkasht land coming since the time of his grand father. The predecessor-in-interest of the appellant i.e. his grand father had constructed market on the said land and a godown and room on the land in dispute which was in the said market. He used to give the shops to the persons for running their business and in lieu thereof use to take rent and baithaki, which is being received by the appellant after his father.

5. He further submitted that the defendant-respondent no.1 is the son of the sister of his father. The father of the appellant had given the shop to him also and he used to pay the Baithaki to him for it. The respondent no.1 left the village Jairampur and started living in Allahabad for the last 8 to 10 years, therefore the appellant took possession of the land in dispute and it is in his possession. He executed a sale deed dated 07.01.1972 in favour of the defendant-respondent no.2 only on the basis of possession shown in the sale deed without ownership and disclosing it in the sale deed. The predecessor-in-interest of the appellant, after coming to know about the sale deed, filed a Suit for cancellation of sale deed with a prayer for declaration that the predecessor-in- interest of the appellant is the owner of the land in dispute.

6. He further submitted that admittedly the respondent no.1 were two brothers and their other properties were sold by them together, but the sale deed in regard to the land in dispute has been executed exclusively by respondent no.1 without disclosing the ownership. The trial court without considering it and the judgment and order dated 23.07.1954 passed in Writ Petition Misc.No.523 of 1952 filed by the father of the appellant, which was allowed by the High Court holding that he is the owner of the property and the application of the Gaon Sabha for setting aside the said order dated 23.07.1954 was rejected by the High Court.

7. He further submitted that the appellant had filed an application for survey commission for identification of the land in dispute because it is not identifiable but the same was rejected on 28.04.1981. He further submitted that Saukat Ali was Pradhan of the Gaon Sabha, who had also filed the Suit for possession of the Gata Nos.778, 779, 780, 777/Min. 4 kita and 751/1 minj. 5 kita against the predecessor-in-interest of the appellant, which was dismissed by the trial court. The Gata No.462 is new number of Gata No.780, which is apparent from Aakar Patra 45 of Gram Ja