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2015 DIGILAW 3681 (ALL)

Devendra Kumar v. Shyam Babu (Since Deceased)

2015-11-26

PRAMOD KUMAR SRIVASTAVA

body2015
JUDGMENT Pramod Kumar Srivastava, J. 1. Original Suit No. 155 of 2007 (Devendra Kumar and others Vs. Shyam Babu) was filed for the relief of permanent injunction and cancellation of sale deed, which was decreed by the judgment dated 17.02.2014 of Civil Judge (J.D.) City, Farrukhabad. Agaisnt the said judgment of trial court, Civil Appeal no. 19 of 2014 (Smt. Kanti Devi and others Vs. Devendra Kumar and others) was preferred by the substituted defendants of original suit, which was allowed by the judgment dated 28.10.2014 of Additional District Judge, Court No. 11, Farrukhabad. By this judgment of first appellate court, the judgment and decree passed by the trial court was set aside and original suit was dismissed. Then against judgment of first appellate court, present appeal has been preferred by the plaintiffs of original suit. 2. The plaint case in brief was that disputed agricultural plot no. 257 situated in village Karathia was owned by plaintiffs' father Rajkumar and plaintiffs' uncle Sone Lal. Each had half share in it. Plaintiffs' uncle Sone Lal had died issueless on 8.8.1985, therefore plaintiff's father Rajkumar came in ownership and possession of disputed plot no. 257. Then plaintiffs' father Rajkumar also died on 08.01.2001; after which plaintiffs are the owner in possession of disputed plot no. 257. In year 2007, defendant Shyam Babu had informed about the registered sale deed dated 05.09.1990 executed by Sone Lal in his favour, and he tried to interfere in possession of plaintiffs over disputed agricultural plot, then plaintiffs had filed a suit for permanent injunction against defendants for restraining them in interfering over their possession of plot no. 257 and for cancellation of registered sale deed dated 05.09.1990 allegedly executed by Sone Lal in favour of defendants. 3. The trial court had accepted the written statement of defendant's side, framed issues, accepted adduced evidences and thereafter passed judgment dated 17.02.2014 by which original suit was decreed and relief of permanent injunction and cancellation of deed sought in plaint was granted to plaintiffs against defendants. The trial court had given finding in its judgment to the effect that plaintiffs had alleged the death of Sone Lal in year 1985, which date is earlier of execution of sale deed, and the defendants had failed to prove that Sone Lal had not died in year 1985, therefore, plaintiffs' suit should be decreed. The trial court had given finding in its judgment to the effect that plaintiffs had alleged the death of Sone Lal in year 1985, which date is earlier of execution of sale deed, and the defendants had failed to prove that Sone Lal had not died in year 1985, therefore, plaintiffs' suit should be decreed. Documentary and oral evidences regarding fixation of date of death of Sone Lal to be 31.08.1990 as mentioned in the death certificate, and its register was not believed by the trial court for the reasons mentioned in the judgment and the fact of mutation of name of defendants over disputed agricultural property was not found relevant in this case by trial court which had passed in the aforesaid judgment of decreeing of original suit. 4. In civil appeal, the first appellate court had framed points of determination, considered the facts and evidences, and thereafter passed the judgment dated 28.10.2014 by which appeal was allowed and the judgment as well as decree dated 17.02.2014 of trial court was quashed and original suit was dismissed. The first appellate court had held that plaintiffs had not adduced sufficient evidences to prove the date of death of Sone Lal, therefore, it cannot be said that Sone Lal had died on 08.08.1985 or was not alive on date of execution of sale deed. The first appellate court had also specifically given finding of fact that plaintiffs have failed to prove that disputed registered deed of sale does not contain thumb impression of Sone Lal. Therefore, there are no sufficient grounds to cancel the sale deed in question on this ground, and then first appeal was allowed. 5. Learned counsel for the appellants contended that Sone Lal had died in year 1985 and was not alive in year 1990 at the time of execution of disputed registered sale deed; then defendant should have proved the execution of said sale-deed by Sone Lal. He also contended that in these circumstances the judgment of first appellate court is erroneous; therefore second appeal should be admitted for being allowed. 6. The only dispute in this matter has been as to whether Sone Lal had executed the registered sale deed dated 05.09.1990 or not. The execution of registered deed of sale on behalf of Sone Lal is admitted fact. 6. The only dispute in this matter has been as to whether Sone Lal had executed the registered sale deed dated 05.09.1990 or not. The execution of registered deed of sale on behalf of Sone Lal is admitted fact. Therefore, plaint case could be decree only when it was proved by plaintiffs-appellants that said sale deed does not contain thumb impression of Sone Lal. There is presumption of law that sale deed is executed in formal and proper way, unless otherwise proved. Sale deed in question must have contained the photograph of executant's vendor, and this fact was never challenged that it was not photograph of Sone Lal. When plaintiffs-appellants had pleaded that Sone Lal had died in the year 1985 before execution of registered sale deed in question, then it was their burden to prove the same 7. A perusal of findings of first appellate court reveals that findings given and conclusion reached by first appellate court are apparently correct and acceptable. There appears no infirmity or perversity in it. Therefore in these circumstances this Court in second appeal is not expected to re-appreciate such findings of facts based on proper appreciation of evidences. This finding of first appellate court is apparently correct that on relevant points necessary for deciding the matter the plaintiffs-appellants had failed to prove its case. Plaintiffs-appellants had claimed their right title and ownership over disputed agricultural land. Their suit can be decreed and relief can be granted to them only when it is declared that they are owners and bhumidhars of disputed agricultural property; and such relief apparently cannot be granted by civil court. The relief regarding permanent injunction for disputed agricultural property in favour of plaintiffs-appellants plaintiffs- appellants can be granted only after the declaration of title over disputed agricultural land, and such matter can only be decided by revenue court. So far, the grounds mentioned for cancellation of sale deed in question is concerned, this finding of first appellate court is acceptable that plaintiffs-appellants had failed to prove their case in that regard. Therefore, there appears no illegality or error in the judgment of first appellate court, which is in fact based on acceptable findings of fact. 8. As discussed above, the dispute between the parties, which was to be proved by plaintiffs-appellants, was as to whether disputed sale deed in question was not executed by Sone Lal. Therefore, there appears no illegality or error in the judgment of first appellate court, which is in fact based on acceptable findings of fact. 8. As discussed above, the dispute between the parties, which was to be proved by plaintiffs-appellants, was as to whether disputed sale deed in question was not executed by Sone Lal. The burden regarding it was not discharged by appellants. The plaintiffs-appellants right could come into existence only after cancellation of said sale deed and declaration of their right over disputed agricultural property in this matter. The declaration of title cannot be granted by the civil court, and the factual dispute regarding disputed sale deed is a matter of fact for which finding of fact is against appellants; and nothing relating to point of law is involved in present matter. Therefore, no question of law, much less a substantial question of law arises in this matter which may require the exercise of jurisdiction of second appeal by this Court. The first appellate court had properly appreciated the evidences and gave finding of fact, which is not infirmed or perverse. This Court is not expected to re-appreciate or interfere in such findings of fact. None of the contentions raised by the learned counsel for the appellants is acceptable 9. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.