Court No. - 5

Case :- SECOND APPEAL No. - 50 of 2021

Appellant :- Tarun Kumar

Respondent :- Smt Snehlata

Counsel for Appellant :- Raj Kumar Kesari

Hon'ble Saral Srivastava,J.

Heard learned counsel for the appellant.

The appellant by means of the present appeal has challenged the

judgement and decree dated 28.1.2020 passed by the Civil

Judge (Jr. Division), 1st Hapur dismissing the original suit No.

78 of 2019 and judgement dated 12.1.2021 passed by the

Additional District Judge, Fast Track Court-1st, Hapur

dismissing the Civil Appeal No. 4 of 2010 of plaintiff-appellant.

The plaintiff-appellant has instituted a suit for cancellation of

the sale deed dated 27.7.1989 executed by father of the

plaintiff-appellant in favour of the respondent-defendant. The

suit has been instituted by the plaintiff-appellant on the ground

that the sale deed is forged document inasmuch as thumb

impression on the sale deed is not of father of the plaintiff-

appellant and is forged one. It is also pleaded that the sale deed

is hit by provisions of Section 168-A of U.P. Z.A. & L.R. Act

and therefore, the sale deed is void and thus, the plaintiff-

appellant is entitled for decree for cancellation of sale deed.

The respondent-defendant did not appear before the court below

to contest the case and the suit proceeded ex-parte.

The trial court by the judgement dated 28.1.2020 held that

according to the plaintiff-appellant the sale deed does not bear

the thumb impression and the burden to prove that it did not

bear the thumb impression of the father of the plaintiff-

appellant was upon the plaintiff-appellant which he utterly

failed to do so. The trial court further held that the sale deed is a

registered document, therefore, there is a presumption in law

that the registered document is validly executed. On the basis of

the aforesaid finding, the trial court dismissed the suit.

The plaintiff-appellant preferred the appeal challenging the

order dated 28.1.2020 passed by the trial court.

The appellate court on deciding the issue No. 1 held that the

sale deed is a registered document which bears signature, seal

of registration and signature of the registering authority and the

registered sale deed has been executed by complying the

provisions of Section 60 of the Indian Registration Act. Hence,

there is a presumption that the document is validly executed.

The appellate court also held that the burden was upon the

appellant to prove that the sale deed was forged as it did not

bear the thumb impression of the father of the appellant but the

plaintiff-appellant has failed to discharge its burden.

The appellate court also noticed the contention advanced by the

plaintiff-appellant regarding the fact that the sale deed is hit by

Section 168-A of the U.P.Z.A. & L.R. Act, therefore, it is void.

The appellate court in recording the finding on issue whether

sale deed is hit by Section 168-A of the U.P.Z.A. & L.R. Act

noticed Section 31 of the Specific Relief Act held that a suit for

declaration of cancellation of document to be void can be

instituted by the person against whom document is executed

and claimed to be void. The appellate court further held that the

father of the appellant has not challenged the sale deed during

his life time, and therefore, the plaintiff-appellant has no right

to challenge the sale deed on the ground that the same is hit by

Section 168-A of the U.P.Z.A. & L.R. Act.

Challenging the aforesaid orders, learned counsel for the

appellant contended that both the courts below have erred in

dismissing the suit inasmuch as once it is established on record

that the sale deed is hit by Section 168-A of the U.P.Z.A. &

L.R. Act, therefore, the judgement of the court below is not

sustainable, and substantial question of law arises in the appeal

as to whether the sale deed is void being hit by Section 168-A

of the U.P.Z.A. & L.R. Act. He submits that the f