Research › Search › Judgment

Allahabad High Court · body

2007 DIGILAW 990 (ALL)

GULAB PRASAD v. BINDABAN BIHARI

2007-04-16

S.P.MEHROTRA

body2007
S. P. MEHROTRA, J. It appears that Krishna Bihari lal and Brijesh Chandra Vidyarthi (plaintiffs) filed a Suit against Vishun Bihari lal, Gulab Prasad and Ganga Prasad (defendants) for cancellation of the sale deed dated 18. 3. 1969 executed by the defendant No. 1 (Vishun Bihari Lai) in fa vour of the defendants Nos. 2 and 3, namely, Gulab Prasad and Ganga Prasad. 2. The said Suit was registered as Original Suit No. 490 of 1969. 3. By the judgment and order dated 16. 8. 1973, the Trial Court decreed the said Suit for cancellation of the sale deed dated 18. 3. 1969 executed by the defendant No. 1 in favour of the defendants Nos. 2 and 3. 4. It further appears that the defen dants Nos. 2 and 3 (Gulab Prasad and Ganga Prasad), thereafter, filed an Appeal, being Civil Appeal No. 143 of 1973. 5. By the judgment and order dated 5. 8. 1975, the Lower Appellate Court dis missed the said Civil Appeal No. 143 of 1973 with costs. 6. The defendants Nos. 2 and 3, namely, Gulab Prasad and Ganga Prasad, thereafter, filed the present Second Appeal before this Court. 7. It further appears that during the pendency of the present Second Appeal, Ganga Prasad (defendant- appellant No. 2) expired. 8. Civil Misc. (Delay Condonation) Application No. 2233 of 1984 (dated 17. 41984) and Civil Misc. (Substitution) Ap plication No. 2234 of 1984 (dated 17. 4. 1984), were filed for bringing on record the heirs and legal representatives of the said Ganga Prasad (defendant-appellant No. 2 ). 9. By the order dated 12. 1. 2007 passed on the aforementioned Substitution Application, notice was directed to be is sued, 10. As requisite steps were not taken for issuance of notice, the Court by its order dated 16. 3. 2007, held that the Appeal stood abated at the instance of the said Ganga Prasad (defendant-appellant No. 2 ). 11. It will, thus, be noticed that the Second Appeal at the instance of the said Ganga Prasad (defendant- appellant No. 2), stood abated, therefore, the judgments and decrees passed by the Courts below have became final in so far as the proceedings against the said Ganga Prasad (defendant appellant No, 2) are concerned. 12. 11. It will, thus, be noticed that the Second Appeal at the instance of the said Ganga Prasad (defendant- appellant No. 2), stood abated, therefore, the judgments and decrees passed by the Courts below have became final in so far as the proceedings against the said Ganga Prasad (defendant appellant No, 2) are concerned. 12. The question arises as to whether the present Second Appeal at the instance of the said Gulab Prasad (defendant appel lant No. 1) can still be heard and decided on merits. 13. In my opinion, in case the Second Appeal at the instance of the said Gulab Prasad (defendant- appellant No. 1) is heard on merits, and is allowed, the same will lead to inconsistent decrees in the same Suit: 14. As noted above, the Suit for can cellation of the sale deed dated 18. 3. 1969 executed by the defendant No. 1 in favour of the defendants Nos. 2 and 3 was decreed by the Trial Court, and the said decree was confirmed by the Lower Appellate Court. 15. In case, the present Second Appeal at the instance of the said Gulab Prasad (defendant -appellant No. 1) is allowed, the same will evidently, lead to inconsistent decrees in the same Suit. This is because, one decree in the Suit would be for cancel lation of the sale-deed dated 18. 3. 1969, while the other decree in the same Suit would be to the contrary in regard to the same sale-deed. 16. In view of the above, the present Second Appeal at the instance of the said Gulab Prasad (defendant-appellant No. 1) can not be proceeded with on account of abatement of the Second Appeal at the in stance of the Ganga Prasad (defendant-appellant No. 2 ). 17. The Second Appeal is liable to be dismissed in entirety. 18. The Second Appeal is, accord ingly, dismissed. However, on the facts and circumstances of the case, the parties are left to bear their own costs in the Second Appeal. Appeal Dismissed. .